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New supervisor let me go for beign late it was never

Customer Question
reforced he let me go...
new supervisor let me go for beign late it was never reforced he let me go with no warning can I apply for ui and how can I win if they challenge my unemployment
Submitted: 5 months ago.Category: Legal
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Answered in 1 hour by:
3/15/2018
Lawyer: RobertJDFL, Attorney replied 5 months ago
RobertJDFL
RobertJDFL, Attorney
Category: Legal
Satisfied Customers: 15,345
Experience: Experienced in multiple areas of the law.
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Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. As state laws vary on unemployment, what state is this in?

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Customer reply replied 5 months ago
California
Customer reply replied 5 months ago
When I had my phone interview with unemployment, they told me that it was because of some abscenses. those abscenses where excused but when they terminated me they told me it was because of a tardy
Customer reply replied 5 months ago
i was paid for the abscenses they where talking about all the way in January
Lawyer: RobertJDFL, Attorney replied 5 months ago

Good evening,

My apologies for the tardy reply. I was out at appointments by the the time you replied and only now have returned. Please give me a few minutes to work on my answer.

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Lawyer: RobertJDFL, Attorney replied 5 months ago

Unemployment benefits will be denied by the EDD (California Employment Development Department) if an employee has been discharged for misconduct connected with his or her most recent work (Unemployment Insurance Code, Section 1256).

The leading case on the definition of misconduct within Unemployment Insurance Code, Section 1256, is Maywood Glass Co. v. Stewart (1959) 170 Cal. App. 2d 719. The Maywood case held that “misconduct", as used in section 1256, “is a substantial breach by the employee of an important duty or obligation owed to the employer, willful or wanton in character, and tending to injure the employer".

The test for misconduct is essentially volitional. “The conduct may be harmful to the employer’s interests and justify the employee’s discharge; nevertheless, it evokes the disqualification for unemployment insurance benefits only if it is willful, wanton or equally culpable." Jacobs v. California Unemployment Ins. Appeals Bd., 25 Cal. App. 3d.

The Maywood court drew a critical distinction in its analysis of employee misconduct: “Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are NOT to be deemed “misconduct" within the meaning of the statute."

This means that common reasons for termination such as unsatisfactory conduct, inefficiency, ordinary negligence/inadvertence, and poor work performance, are typically not construed as misconduct for purposes of denying unemployment benefits."

Examples of misconduct in which the denial of unemployment benefits have been upheld include: fraud against the employer, theft of company property, fraudulent time-card entry, bringing a weapon to work, excessive absenteeism/tardiness, setting fire to the employer’s premises, and physical assault against patrons or co-workers. What is excessive isn't defined, and you don't say how much you were absent. A few days due to illness for example isn't likely excessive, but missing weeks likely would be.

If you receive an unfavorable determination from the EDD, you can request a hearing. Please note that you have 20 days (including weekends and holidays) from the EDD’s Notice of Determination to request a hearing before an Administrative Law Judge (ALJ) who is employed by the California Unemployment Insurance Appeals Board (CUIAB).

At the hearing, the ALJ will explain the hearing process, request documentary evidence and/or other exhibits, and question parties and witnesses under oath. The proceeding will be recorded.

The ALJ will give you, or your attorney, an opportunity to:

a) Present all necessary witnesses, exhibits, and declarations that support your case;

b) Question the opposing party (employer) and its witnesses; and,

c) Respond to testimony and evidence presented by the opposing party.

The burden of proof is going to be on your employer. Evidence they could present, if they are alleging absences or tardiness was excessive can include things like any write-ups or written warnings you were given, and testimony from HR or other management familiar with the issue who can testify that workplace policy says you can only be late or tardy "X" amount of times for example, and that you routinely were absent/tardy.

You can bring your own witnesses, such as other co-workers to testify, and can question your employer as well. For example, you could question why your employer never complained to you or wrote you up regarding absences if this was an issue. You could question why they paid you for the days if there was a concern. And you could also ask why, if the absences were in January did they wait nearly two months to terminate you?

Also, if you had a good reason for being absent or tardy a lot you should bring that up at the hearing. If you had good cause for missing work -you were very sick in the hospital, your car broke down and was in the shop for a long period and there was no other way to get to work (no bus route, no other co-worker to carpool with, etc), it's possible the ALJ will accept that even though it is true you were absent/tardy a lot, you had good cause and grant you UI.

Please let me know if I may clarify anything or provide you with additional information.

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