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Absent without permission, not eligble under 1256

by K
(Sacramento,CA,USA)

Does she have any hope?



Under section 1256 for no good reason, or something along those lines. However, we originally left out of the edd app that my friend had been detained by the police down the street from her work. For nearly two hours she was held, then let go with a citation, this was a case of mistaken identity, and has she has not been convicted of any crime. However, while trying to explain this to her boss he did not believe her and as she was unable to convince him even with documentation that it was beyond her control to get back to work on time,


Hi K,

Here is the specific part of the eligibility guide I think you need to read This will open in a new window.

The information you have provided just makes me want to ask more questions .. like how, if you're claiming it was a case of mistaken identity, WHY, was a citation issued.

You know the details, not me, but I feel hesitant to discuss this because it's difficult to offer anything for you to focus on without having more details that would allow me to speculate about what an employer's argument might be.

In addition, if you left the information out of the application for California unemployment .. what information was given? This does not make any sense to me.

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Apr 10, 2009
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Fired because of being Detained by Police at Store.
by: Anonymous

Here is the deal as i know it. My girlfriend had been written up around 6 times for being late or not showing up. After a certain amount of write ups they fire you. If it matters at all when she started this job, they wanted her to start immediately, she let the manager know that when we were actually moving, she could take time off, ad needed. So that is what she did around 4 days or so. Which she was written up for promptly on her return to work, the manager explained to her it was just policy since she had missed so much time in her first 6mos. Write ups continued on as a normal occurrence,as a part of her so called training, the incident which occurred which led to her being terminated, happened on her lunch break which was supposed to be an hour. On that day she had finished her lunch about a mile or so from her work in a strip mall. On her way back she stopped at a clothing store to try on some shoes, she was going to exchange some shoes which she bought a few weeks before, for which she had no receipt. She decided to wait until she had more time to shop. As she was leaving the store she was stopped by security and asked to show them the contents of her bag, they detained her and called the Sheriffs dept. She asked what she had done wrong, and they told her she fit the description of someone who they were looking for in connection with several store robberies, when the Sheriff arrived they questioned her for about 2 hours not allowing her to call her boss. Finally not having any evidence,and not convinced she was the person they were looking for, they wrote her a citation, for not having a receipt for the shoes the security guard said he had witnessed her putting them into her bag, which she did. What he did not see is that she came in with the shoes. So now she is more than 2 and half hours late from her lunch which she had never been late coming back from lunch. Now she was stuck with having to tell her boss that she was held by police for shoplifting. Well she did not know what to do so when she got back to work she told her boss that the police had stopped her for traffic violations. The boss did not believe her and asked to see proof, obviously not being able to come up with the correct documentation her boss told her she was left with no choice but to fire her, but she was never told exactly why? No brain-er right?
it looks like the case will be dropped, She filed for Unemployment on FEB 17th and as of now they have denied her. Due to the reasons i mentioned earlier IE: Late for no good reason under 1256. Now we can appeal the decision do you see any hope of doing so? I guess that is it more or less. Again thank you for your expertise and input on this matter. Have a great night.

Looking forward to your response,

Respectfully,

K



Apr 10, 2009
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Continuation of response to Fired for being late because detained by police
by: Anonymous

Hi K,

If your everything is as you say it is ... yes, I do see some hope.

I'm giving you two links to specific pages of the CA determination guide. They open in new windows and after reading these if you have questions, please let me know.

The first deals with how they determine if a discharge for "tardiness" is decided to be with or without good cause. Remember that when you are fired an employer needs to prove misconduct on the employees part. Your girlfriend has not only the "last Incident", but six prior warnings the ALJ will be looking at. If, as you say, your girlfriend explained her need to be late upon hire because she was moving and the employer understood at that time that would be the element to focus upon for those instances.

Tardiness

Second will be a link to "Illegal Activities"

It is fairly self explanatory.

Illegal activities.

Just needed to add that the big stumbling block for your girlfriend, as I see it, will be the fact that she wasn't honest with the employer when she got back to work, but irregardless it may be understandable that a reasonable person after enduring such a humiliation would be less than forthcoming due to the humiliation and embarrassment. At least, that's probably a truthful response ..

Apr 11, 2009
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Appeal
by: Anonymous

What is the best way now to fill out the appeal forms? As far as why she disagrees. Also how do we approach the judge if the Edd does not overturn the decision?

Thank you again for your help,

K

Apr 12, 2009
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Follow up on appeal process
by: Anonymous

I don't know if you got my last question re: the appeal letter, IE: What it should contain as to why she disagrees with the decision? Should it contain all of what i mentioned?

Thank you again,

K



Nope, that's for the hearing. I did give you an example of an appeal on one of those other submissions you made, but have you read what I think about appeal letters? If not
read this page


Simple and to the point. Without tipping your hand completely to the opposing side (the employer).

I wish to appeal the determination dated (insert the date) which found me ineligible for unemployment under 1256. I believe the decision was in error for finding misconduct connected with the work when the facts will show the incident for which the employer discharged me was in fact beyond my control due to a humiliating case of mistaken identity.

Use the hearing to present the case... not the appeal letter.

Jul 15, 2009
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Hearing
by: K

Any advise for us going into the hearing today. As there is much to cover. Should i cite the code for misconduct? Will this offend the judge? Should we wait for him to ask questions, as not to sound like we are all over the place?


Just focus on the facts of the last incident and how they were beyond her control.

Listen well and just answer the questions asked and be truthful. Make your points as to why the cause of the discharge was not misconduct and leave it at that.

Jul 19, 2009
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Lost appeal
by: K

Thank you for your advise it helped. However i believe we lost because, of lack of evidence, which we now have, it seemed to be going very well, then when it was my turn to answer questions, the judge basically asked only 1 question "where is your evidence?" With that the decision was due to my girlfriend having been written up so many times for being late,coupled with the fact that the employers handbook states that tardiness or absence are terminable. I guess the judge still considered the situation falling under the 1256 code. What should i do now? There is quite a bit of money at stake at this point. How do i file a 2nd appeal? What should i put in the letter for my reason? Should we get an attorney? Do we still have any chance? Thank you again in advanced for all of your input. Can you recommend any lawyers in the Sacramento CA area?

Regards,

K



Hi K,

A second appeal to the board of review won't do any good because the only reason they would change the decision would be a legitimate appeal based on a procedural error by the ALJ ..

No new evidence or testimony is allowed now, so what you need is the hearing transcript.

I have a question K .. why were you answering questions .. I thought it was your girlfriends hearing .. if you were acting as her rep .. you screwed up by not requesting a postponement until you did get the "proof".

I would be willing to take a look after you receive the hearing decision and see if I see anything viable.

If I remember correctly, your case hinged on the fact that the "last incident" was beyond her control. That should have been your focus and you should not have gone forward without the proof.

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