Fired for misconduct, appeal hearing was today and I am shocked at lies my employer told

by Cari
(Los Angeles, CA)

I worked for an non profit agency where I did payroll on Quickbooks as part of my job. I was never properly trained nor did I have a lot of experience with QB. In payroll I made the mistake of adding my insurance premium of $69 instead of deducting. I always felt confident that if I ever made a mistake my supervisor would find it as part of his job was to review all paychecks for signing. This mistake went on for months. Being only $69 I never caught it. I was fired after an accountant came in to do prep for a tax audit and found my mistake. I loved my job and said I would gladly repay any necessary funds that weren't supposed to be given to me due to the mistake. I was denied unemployment and had my appeals hearing today. I told the judge that I would never steal from the company and I made a genuine mistake. In fact, I recently received my bachelors degree in criminal justice and I will be seeking employment in a law enforcement agency. Knowing part of that hiring process will be a polygraph exam why would I risk a future job, not to mention all the work and money I just spent on an education for $69 a paycheck? My employer did not show up to the hearing but did it via telephone. He told at least 5 untruths during the process. I was shocked. But my fear is who will the judge believe, a director of a non profit agency who is a doctor of psychology (not licensed) or me, just an employee? I have been without income for 5 months and currently owe 2 months back rent along with many other bills. I desperately need my benefits. I don't know what hurts more, being without income or losing a job that I genuinely loved (and my employer knew that). I was a good employee, made many donations to the agency (it was non profit), worked many hours unpaid as volunteer work, always volunteered first for needed shifts. I was feeling confident before the hearing until I heard the director lie. But I cannot prove it. The judge was very intimidating and seemed to "be impressed" at my ex supervisor's credentials. Also my employer told the judge I was hired because I had a lot of QB experience (which I did not and they knew that). I guess I'm looking for someone to say, "you still have a chance" or something. Thanks for letting me vent.






Hi Cari,

I have a couple questions about what you wrote.

Were you the only employee of the non-profit?

If not, was your check the only check that the same mistake was made on over "months"?

Did the employer provide your resume or application for employment to prove you were hired based on experience with payroll or accounting?

What were the lies that you couldn't prove were lies?

Did you acquire the state file before the hearing to know how your employer had responded to your claim?

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Oct 20, 2010
Similar
by: Heather in California

Cari, I too would be interested in reading your response to the questions posed after your post. As Chris helped me to realize right after my hearing, your previous employer has the burden to prove that your act was "misconduct" as opposed to a mere accident or oversight. If you lose the Appeal Hearing you can appeal that decision and have Chris help you with your written argument. Try to produce a copy of your employment application and resume and see if you cannot get them entered into evidence under the justification that you did not know that your former employer was going to tell lies in the hearing but that these documents would discredit the statement that you were very knowledgable in QB. I am sorry that you are going through this. I had a similar experience. I was working for a non-profit agency for 4 years. Prior to going on my second maternity leave me and 4 co-wrokers filed complaints against our Supervisor. My supervisor was very angry toward me and she retaliated at every chance. Upon my return from my maternity leave she altered my time sheet illegally and I caught her and confronted her and told her that I would take it to the labor commissioner. The next time I came in to work, I was fired. But they came up with some rediculous allegations against me to fire me for misconduct, which were all lies. Eventually I won my appeal hearing because the only thing that my former employer had was hearsay statements. My employer has appealed that decision to give me unemployment so I am now waiting for a decision from the Appeals Board. I really hope that things turn out well for you!




Thanks for the vote of confidence Heather, but I really do not help people write legal briefs for an appeal to the board. This is best done by a lawyer .. I will however, discuss whether there might be viability.

My advice is to get it right at the lower level hearing so as to avoid a need to appeal to the board. This is what I try to help people do .. because board appeals most often do not have favorable results for the appealing party.


Nov 04, 2010
Answers to your questions
by: Cari

i had answered earlier but the answers didn't show up -

Were you the only employee of the non-profit? No, I was one of 7 employees.

If not, was your check the only check that the same mistake was made on over "months"? Yes, however there were only 2 employees that received deductions (myself and my supervisor). My supervisor's deductions were automatically set up prior to my employment. I didn't know how to set up deductions and did it manually for myself. A 3rd employee was supposed to have deductions but my employer did not inform me of this until 2 months prior to my termination stating he "forgot" about her deductions. I then did hers manually as well.

Did the employer provide your resume or application for employment to prove you were hired based on experience with payroll or accounting? No.

What were the lies that you couldn't prove were lies? My employer said I set up his insurance deductions, when in fact they were already set up when I started as he had been working there for 4 years already; also I do not know how to set up deductions automatically. My employer also said they only hired me because I was well versed in QB, which was a lie (during our hiring interview I said I had very little experience with QB). He also lied about my start date, then corrected himself later.

Did you acquire the state file before the hearing to know how your employer had responded to your claim? No, when I called to view it I was told the judge had it. I didn't see it until the day I went in for the hearing.

I received the decision today; I was denied again. However the judge put on the decision that I had received unapproved payroll advances. I specifically recall the judge asking my supervisor (during the hearing) if my advances were approved and my supervisor said "yes" because they were. That was never an issue. No one could do an unapproved advance because my supervisor signs the checks.
I am appealing to the board, do I have a chance at this? Very stressful as I've had no income and my son desperately needs surgery that I can't afford to buy insurance for.
Another question, on my original denial letter it states, "you are not eligible to receive benefits....beginning 6/6/10 and continuing until you return to work after the disqualifiying act and earn $2250 or more in bona fide employment, and you contact the above office to reopen your claim." what does this mean? i have to get a job, earn $2250, and then how to i reopen claim if i'm working? do i receive all my back pay (the state owes me about $10500 so far)? again, thanks so so much!

Nov 04, 2010
Appeals to the board of review
by: Chris - Unemployment-tips

Second appeals or appeals to the board of review are not as easy .. because they aren't based on the facts of the separation anymore .. at least not really. The basis for appeal is based on "the hearing officer's errors in either protecting a party's rights to due process or basing the decision on the wrong case law, statute or by ignoring precedent case law or in short faulty reasoning.

The actual appeal letter is easy, but it's not like the first hearing where everyone gets together and testifies and submits documents as evidence.

A party who appeals to a board is requesting the board to review the record for errors. You should/need to also submit a "legal brief" which is the argument for why you believe the hearing officer's decision was in error.

This is definitely lawyer stuff. And why I stress preparing as best you can for the first hearing .. leaving nothing to chance so as to minimize the need for a second appeal.

You now need to get the recording of the hearing since that is the record and what the board will also be listening to .. not to mention it helps you know what to focus on while reading precedents for your legal brief.

California unemployment precedents.

Nov 05, 2010
second question about unemployment disqualification
by: Cari

thanks so much chris - do you know what the latter part of my question means - the part about after making $2250 i can reopen the claim? do i get all my back pay since i was terminated? how can i reopen a claim if i'm working? this is confusing! thanks again!



Hi Cari,

I do. It's California's disqualification.

What they mean is that if you are denied benefits you must return to work and earn 5 times your WBA before you can re-qualify for benefits.

But since a right to benefits is dependent upon the separation from the last work .. this also means that the separation from a new job would also have to be qualifying on the merits .. if it is .. such as a layoff or a quit with good cause or a discharge that was for something other than misconduct AND you earned 2250 in that new employment .. you could then collect benefits.

In general, states can remove disqualifications (DQ) by three different methods .. depending on the reasons for one.

The are served, purged or lifted.

If you have to serve it .. it wouldn't matter how much you earned because it is usually a specific number of weeks you are prohibited from collecting.

Purging is the requirement to go back to work and earn X amount and it is usually a multiple of your weekly benefits amount.

Serving and purging are often combined, but since we're only talking about CA .. no need to elaborate on that.

Lifting a disqualification would happen if a person was found eligible based on the merits .. such as when someone is sick or injured and medically restricted and can't work.

But they are disqualified because they can't meet the conditions to collect such as being able and available for work.

All they would have to do is show the UI department the medical documentation allowing them to work again and the DQ would be lifted without penalty or loss of X amount of weekly benefits.

I know this is more than you asked, but you never know who might be trying to find out what all the unemployment disqualifications mean .. and in fact I'm guessing that lots of people might not know that they do have the ability to requalify if a new job doesn't work out for some reason.

Chris

Nov 14, 2010
new info
by: cari

i redid my second appeal and i am ready to send it in; i stated that evidence such as a resume and/or application was never presented (stating that i was qualified at quickbooks), i also said that the employer never presented evidence (nor did the judge ask for it) that i had set up his (my supervisor) deductions - this was the first i heard of this at the hearing otherwise i would've been prepared, however the employer stated that i had set up his deductions (i did not as i did not know how) but no evidence was shown nor requested. also, the judge stated in my appeal decision that i had received unapproved advances (i had not, and when it was asked of my employer if my advances were approved my employer replied "yes") i stated that this was never an issue (can they bring up somethign new in the hearing? and if so, how can i prepare a defense? this was not even an issue with my employer!). lastly, i remembered that after i intially interviewed for the position, the agency had me come in the following day for a test on quickbooks - a member of the board of directors, an accountant, gave me the test, which i failed miserably - i honestly left the office feeling there was no way i would be offered the position (i know i did badly as the accountant corrected all my mistakes as she tested me and told me they were wrong answers). therefore they did in fact know i was not well versed on quickbooks. i have since moved to florida, at my age i have to move back in with my mom to enable me to get back on my feet - horrible feeling. hoping i find work here and praying i win the 2nd appeal and get my back benefits. i still owe 2 months back rent (los angeles) not to mention months of late payments to credit cards, etc. i just refuse to give up as i know i am in the right and i cannot stand being accused of something that i know i did not do.
knowing what i have put in my 2nd appeal letter, and knowing the employer provided no evidence (resume/application, proof that i set up his deductions, etc) do you think they will approve it? thanks so much for all your help - it is GREATLY appreciated!




Nov 16, 2010
I would like to be more encouraging .. but
by: Chris - Unemployment-tips

Cari,

I just can't say what they will decide, except to say I think if you can swing a lawyer for an appeal for a board appeal .. do it because when disagreeing with the findings of fact of an ALJ or hearing officer it is difficult and is definitely beneficial to have access to legal resources and a good knowledge of the rules of procedure.

The board (in most states) will not accept additional testimony or evidence for this level of appeal .. they review the record of the first hearing only .. not new stuff.

This is another reason my advice is to prepare for the first .. to avoid the need for a board appeal.

But Cari, please keep me updated because whether successful or not others can benefit if you only come back here and tell us what the decision says verbatim.

I'm curious as well, if anyone else out there think that a new section on this website where you could copy and paste hearing and board decisions would be helpful.

It is reading decisions which helps most to understand the legalities of unemployment appeal hearings because they have to apply a "reasoning" and reference the law and precedent cases to support the reasoning.

They can provide direction as to what to look into .. much more so than just reading a statute.

Just wondering, if you think it might be a good idea .. let me know by contacting me. If there's enough interest I'll set something up.

Chris

Nov 16, 2010
response
by: Cari

oddly enough i tried to find an attorney, at the least to get a free consultation to see if i was on the right track. i could not find one that handles edd appeals! i found one at the beginning who represents employers but she was willing to listen to what i had to say and give me her opinion, she thought for sure i would win. i already sent in the 2nd appeal - i basically numbered each item (4 in total) to which no evidence was provided - all i can do now is pray. i will let you know as soon as i get my decision. curious, if they still deny me is there anywhere else i can go with this? an attorney who would take a case like this? as much as i need the money i need to clear my name as well. i am really worried about applying for future jobs and getting a bad reference from the ex employer. if i win i can at least say "i fought and won" -
carra




The next appeal is a court appeal .. there should be appeal instruction provided with the board decision .. just like the administrative hearing decision.

Oddly enough, I've been looking for attorneys and non-attorneys who represent claimants at hearings and do board appeals since I began all this .. at a reasonable price:)

I would have no trouble making a long list of reps and attorneys that serve employers exclusively.

I think I might have found a group that does represent claimants, but I have to finalize a few things yet.


Nov 19, 2010
response
by: cari

ok, if they deny this second appeal, then i will do a court appeal - if you find anyone that represents employees, please let me know - yes, i found quite a few that represent employers, but none that represent employees - and when i did call random attorney's/firms to inquire about his i was told attorneys never get involved with edd appeal hearings. but i will not give up!
thank you!




Actually, I need to ask if you still have time to submit a legal brief for the review ..

Tell you what, why don't you email me .. I might be able to refer you to someone who if they can't handle your brief .. could refer you to someone in your state that does help claimants.




Nov 21, 2010
: )
by: Heather

Chris.....You are awesome!!!!! I am amazed, each day that I receive all of the posts that you make, at how much you help people!!!!

Dec 27, 2010
fired for misconduct
by: Anonymous

You will win the appeal. After 20 years working for one company, I was fired for misconduct. However, my employer said that I was not cooperating with my co-workers and customers complaints and they had to let me go or (terminate).

I am accountant with more than 20 years experience. I have banking & also the company sent me to school for my BS degree. I graduated on 04/21/2001. Good Luck !!! Let me know how things come out.

I am Caliornia my email (deleted).
Remember your appeals for unemployment only, nothing beside this appeal.

Not for harassment, discrimination, favoritism, defamation, retaliation or other civil claims.

Make sure you make 2 copies 1 for the judge and 1 for your former employer.

Jan 08, 2011
My 2nd appeal decision
by: Cari Smith

I received my board appeal decision today; DENIED once again. In my board appeal I had pointed out various statements that the judge from the first appeal made in his decision that were mistakes - the board appeal removed the mistakes and substituted what really happened (which was what I said happened) yet they still denied me! I thought for sure, at the least, with the judge making mistakes on the first appeal that alone was enough to reverse the denial. If I file a petition for writ of mandate with the Superior Court, what all has to be done after that as I am now living in florida and am in no financial position to travel back to California for court. Would I need to be present in court? Would I be able to obtain an attorney to go in my place? How does this work? And, if it can be answered, what are the chances of winning when a person is denied at first appeal, board appeal and then go to Superior Court? I am truly shocked as I thought for sure I would win; however I thought I would win the first time around. Thanks so much for any input.




Hi Cari,

If you are planning on appealing the board's decision to a court .. you should without a doubt .. contact a lawyer for legal advice. This is way beyond a first level appeal hearing that you prepare by submitting evidence, providing testimony, and cross examining an employer's witnesses.

What are the chances with an appeal to a real appellate court? I don't know.

I try to make everyone understand that the best chance is the first level appeal when you actually have the opportunity to prepare evidence and testimony based on what happened to end the job.

Board appeal decisions can either affirm, reverse, amend or vacate a "decision". The board may also have the authority to remand the matter for another de novo hearing or just remand the matter back to the first level with an order to take additional testimony or evidence.


Oct 01, 2011
fired for submitting a F.m.l.a
by: D

hi,
i like the reading of these problems it has enlightened me on my situation.

I'm now fighting for my benefits, i was fired for submitting an F.m.l.a which is family medical leave act,

i was told i was ill by a doctor so i began multiple visits to the doctor and it was interfering with my job, but my employer seemed patient.

unknown to me she wasn't she began contacting her labor lawyer and told me she didn't have to accept it due to technicality, not a big enough company an then fired me on the spot.

So ok i'm good with that it's an at will state but now she is fighting my ui saying it was for misconduct and absences which yes, i was off due to illness but she not telling the board that i produced a number of doctor's notes and (NO I DIDN'T copy them) but now the board denied me believing my employer but he's the clincher one state approved me but said that the state in which i worked in is responsible for my benefits and that state is denying me now im in appeals process with that state i heard of a statute 616.8 (the state that rules first is the deciding ruling which means the second state has to follow). That state doesn't like that and will not follow the rules now im fighting that.Here's where i fit in with everyone else, My employer has lied to the board and said things that were not true trying to justify firing me and as i now read it's her burden to prove those lies, i have some evidence proving otherwise but not everything most of all i am trying to prove i wasn't absent all the listed days.her's my question (how does my employer prove i wasn't there and how do i prove i was, beside paycheck stubs) i have some but not all....here's a question for chris (what is considered absent), doctor's notes?...illness...or being sent home because my employer felt i was in no condition to work up to their standards i was told i was a liability to their company..




Oct 06, 2011
What makes a fact .. a fact
by: Chris


And you say you read some of these stories?

Did you read anywhere that it's kinda important to make me aware of what state(s) you are dealing with? I can't even assume one of them from your reference to 616.8 because that is a federal statute regarding the treatment of combined wage claims and your issue is really contingent upon how well you represented your own interest at a hearing .. when you had the chance.

Your doctor should have had something in their records which showed which days you were provided with notes and could have filled out a report about the medical condition you were dealing with.

You also have the right to subpoena documents not in your possession, but should be in your personnel file, if necessary.

But, most of all I would like to focus on the last day you were absent from work (which is what an absence is) and know if you can prove the facts about that day and that you were absent from work because you were at the doctor office or offer credible testimony that your employer told you to go home?

It should begin to become clear at some point that any ability to prove someone is lying .. happens while a person is still an employee and chooses to cover their own ass in case things turn ugly at the unemployment claim phase.

The easiest most reliable route is to always be able to provide a piece of paper evidence, contrary to what the employer is contending and bring their overall credibility into question ..

Otherwise, you are forcing or maybe allowing is a better word, to let a hearing officer be the last word on which party is most credible for he said/she said situations .. or who's lying and who's telling the truth.

Oct 19, 2011
fired for submitting a F.m.l.a
by: D

sorry i didn't supply any states i am worried about any one using this forum against me (I know it sounds silly but anything is possible.)but i am talking about Kentucky holding my benefits hostage and ohio saying they have approved them i have three separate decisions from ohio granting me benefits but kentucky saying no that state holds my monetary claim i still as of today oct.18 have not had my appeal so i can still take advice from you. also i have a digital recording of my last day of employment and on there it has hopefully enough details to call their answer into question. i'm sorry im being vague as i said im not to my appeal so i dont want to give to much info that i ruin my secret weapon hopefully to give me a slam dunk on this case but ask me for direct info and i will give it to you ...thanks again




Hi,

I think then, that it's best to email me.


Oct 24, 2011
what do i do now?
by: D

hi chris.

wow i was on cloud nine after my hearing because my employer didnt show up,this is a hearing in ky by the way. well until i started reading everone's comments im worried now because 1)i didnt have the referee tell me i won, he said he will make a decision and let me asap i tried to speak on some of the wrong things my employer said and told the ref. that i had a recording of our last conversation he wouldn't allow me to submit it saying the employer wasnt here so there's no need and they are not able to rebut my facts or testimony i submitted 9 pages of facts i.e paycheck stubs and things that would prove my side of the story..so anyway here's my question, Did i win??? and how if at all can my employer appeal that decision they werent there to submit any facts about the case.




Hi,

Sorry it's taken me so long .. been busy around here.

When an employer doesn't show for a hearing it isn't an automatic win, but it doesn't hurt that they weren't there to rebut any good evidence and testimony you offered.

However, you only know you won when you receive the hearing officer's decision.

And then cross your fingers your employer doesn't manage to get the matter reopened, which was a s.o.p. if I had made a request for postponement that was denied before the hearing.

Mar 09, 2012
Question about misconduct
by: Sfoleno

Hi, I live in Pa. I work for a non-profit. I was recently terminated for misconduct. I have never had a written warning or had any infraction and performed excellently at work. I was informed an investigation was being conducted, because some one stated I made threats towards my boss. after the investigation was completed I was terminated for misconduct. Can I claim unemployment. I have been trying to find a job, and just need these benefits until I get back on my feet. Any help or guidance would be appreciated.



Yes, you can claim unemployment benefits, however without knowing the details of the investigation or the story .. and what the employer's story will be .. it would be difficult to say whether you will receive unemployment or not.

Mar 13, 2012
to chris
by: Anonymous

I looked at the last reply made with the question of misconduct...my question to you chris is doesn't the employer have to send any and all info pertaining to the case in the mail to the person inquiring that includes any statements made in writing, any witness with statements they are making so he has the ability to examine the documents to strengthen his case and if they dont send him a copy he can ask for the exhibit to be removed from trail on the basis of not knowing about and not being able to view it...if im wrong please feel free to tell me.




Hi,

No. An employer doesn't have to send anything to anyone unless it's via a subpoena for relevant documents.

However discussing the do's and dont's about procedures and instructions for documents .. is futile unless we know which state it is.

As for objecting to the admission of a doc you're not in possession of for the hearing .. yes, I'd do that because I'd be concerned about protecting my rights and making potential appeal points on the record.



Mar 13, 2012
chris
by: Anonymous

sorry i forgot to get back with everyone to tell the final out come of my claim...i did indeed win because my ex employer didnt show up but they did request a new trial based on he being to busy the day of the trail and with no luck they were denied not once but twice and i was awarded all 6.5 months from the rear (from waiting 6.5 months) what a payday some of the tricks they tried didnt pan out like trying to enter in evdience never noted before the day of trail and trying to bring in last minute witness on her behalf even tho she wasnt there her self none work

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