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California EDD Section 1256 - terminated for misconduct

(San Diego CA)

I had worked as a courier driver for 11 months. I was terminated on 2/2/09. That day,it took the company 7 hours to advise me that I was being terminated for an issue with a customer that occurred on 10/28/08. The termination was verbal by telephone. I had called in every 30 minuets that day as I was instructed to do every day. I thought the incident of October 2008 was minor as I spent 30 minuets with the client discussing how I had "rushed" to preform a delivery. I never received any verbal or writen warnings from my employer. The company does not have an employee handbook or policy manuel. I worked for the company for over the next 3 months servicing the same client without any issues. I even worked Thanksgiving and Christmas days. I did not receive my final paycheck until 2/14/09. Prior to my termination, I had questioned the company's pay structure as to hours worked and mileage reimbursement. On February 23, 2009, I filed an action with Ca Dept of Labor claiming back wages were owed to me. I filed on line for Unemployment on 4/5/09. I was unsure of the true cause of my termination so I stated "no reason given". My telephone interview with EDD was scheduled for 4/30/09 between 10am and noon, which was the same day and time that my Labor Dept conference was scheduled. I requested the EDD to reschedule my telephone interview because of the conflict with the Labor Dept. I sent the request by cetified mail/return receipt on 4/13/09. On 4/30/09, I had my Labor Dept conference. I returned home and the EDD had called at 10:30am and my wife advised the caller (Mary) that I was at a Labor Dept conference. I returned the call and left a message for Mary. I called for Mary and her supervisor 10

times over the next 5 days. On 5/6/09, the EDD mails me a Notice that my claim was denied because of Section 1256 misconduct "actions toward the customers of the employer". On 5/16/09, I sent my appeal request to the EDD via certified mail. The basis of my appeal is that I never received either verbal or written warnings, that the employer was retailiating because of my Labor Dept action and that I worked with the client for an additional 3 months without any problems. Further, I pointed out that Section 1256 - Title 22, Section 1256-30 the claimant's act to be misconduct the following four elements must be present. Please refer to the Section 1256. I had no willfulness to disregard my employer's interest. I may have made a good faith error in discretion. It was a single instance of a good faith error. On 8/24/09, we had our Labor Dept hearing. The verdict will be issued within 15 days. My EDD appeal hearing is 8/31/09. What are the strenghts and weaknesses of my appeal.

Hi Anonymous,

I think the strength of your appeal is that you've told me there is no relationship as far as time between the supposed rule violation (customer complaint) and the date of discharge.

Are you certain there were no further customer complaints?

The weakness would be in asserting that they discharged you because you questioned the employer prior to termination about the pay structure, yet didn't file a complaint until after termination. How do you prove the correlation that this was the employer's motivation to discharge you?

Another bit of information which I'm missing is what the employer told the state.

Do you really think they told the interviewer that they discharged you for an event that happened 4 months prior? I doubt it .. or why would the state have denied your benefits.

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