CA Unemployment Benefits when the employer fails to fulfill his end of the bargain

by jon
(los angeles, ca)

Hi,

I have been working for 4 months now at my very first job as a W-2 salaried employee. My contract states I earn $40,000/yr as a graphic designer plus 10% commission on new accounts I bring in.

The business is new and has struggled to get off the ground. Over the past month, I have gotten the feeling that they have been trying to get me to quit. My boss asked me to focus on strictly sales instead of designing but has refused training me despite my numerous requests. I've been persistent with my requests to no avail.

Finally today, he writes me a long letter apologizing for not being responsive and because the business is struggling, he cannot pay my salary any longer and that all he can offer is 20% commission on sales with NO SALARY.

Furthermore, the promised health benefits after 90 days was not given to me. I've been following up constantly but have just been given the runaround.

Are these enough ground to quit and be eligible for benefits? Can I still apply even if I accept a commission only position? I feel like he offered it to me just so he can say he didn't lay me off.

Pls help!

Thank you

J





Hi Jon,

I need to make a few points specific to your situation.

Here goes .. what I would personally consider and do if I were you. This is not legal advice:)

This is your first W-2 job. You've only worked at it for 4 months. This is a problem because whether you quit, get fired, or get laid off .. you will most likely not be able to monetarily qualify for benefits in California.

Here's the resource I'm using to support this assumption. DOLETA's Monetary Eligibility Chartbook

To qualify, you would need CA to have what is known as an "Alternative Base Period". You'll notice in that chartbook that is says CA does have one, but if you check the footnotes .. It only applies to claims filed on or after 4/13/11.


If it were 4/13 now .. I would say yes, you would have good cause to quit and collect.

But because the employer is trying to change the conditions of your employment contract at this time to a commission/sales only status .. accepting this now and possibly waiting until April will make it appear as if you accepted the new terms of employment. Then you would have trouble proving good cause to quit .. because of the "perceived acceptance".

Do not forget that your training and experience is as a graphic designer .. not a salesperson.
Read the UIBDG for the relevance of suitable work (Link is at the bottom of page)

Alternative to Unemployment

So here's my alternative to unemployment benefits.

You stated that you have an "employment contract".

If it were me, I would take it to an employment attorney to help you negotiate a mutual agreement to separate that includes some sort of separation payment from the employer.

I would also shoot for that payment to be at most the liability the employer would occur if you had qualifying wages for unemployment.

Table 3-5 in that resource above can help you estimate what your weekly benefit amount would be. Take that figure and times it by 26 and that is the approximate it would cost the employer over the long haul to pay for your benefits in total if you were to collect all 26 weeks worth.

Six months of full benefits is approximately, what you make in three months of working.

They may not be agreeable, but it's a good lofty starting place.

Personally, I would very much prefer a hefty severance to the snake like constriction of unemployment benefits .. If I had a choice.