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I was told that they no longer needed me because they hired more poeple that could work more hours.

by Anonymous
(Sacramento, CA)

When I got hired, the owner told me that he was hiring for the morning shift and that he would only need someone till about 2pm. So i put on my application open-2pm. They hired me, and I worked there for about 2 months. They had me working weekends, and I told them, hey is it possible by chance to be off by 4pm, I have to pick my little girl up. He said ya man No problem! Never said anything about it since. Then one day I was having a friendly conversation with my manager, about how summer time was coming up and it would be nice to have the weekends off, and he agreed. So when I had my interview, the lady said my previous employer stated I was unwilling to work weekends. Never once did I ever say I couldn't work weekend. So I received a letter that I was disqualified due to Section 1256, and section 1260(A). Prior to this job I worked 10-12 hrs a day for 2years, and weekends. I called my last job and had them pull all timecards to show that I have never had a problem working weekends. Please give me some advice. I am definitley appealing this!!

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May 19, 2009
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Thank you
by: Anonymous

So much for all the info you have given me! This website is great, and you are a big help. Thanks so much!! I will for sure let you know the outcome.

thanks again!


May 19, 2009
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The state has said you voluntarily quit by refusing to work the "required hours of the job"
by: Chris - webmaster:)

Just like when an employer tells the state that a person quit .. when in fact they were given the option to quit or be fired, the state considers a "quit in lieu of discharge a discharge .. in other words the separation was a constructive quit.

So in your case the state took the information the employer provided and assessed it as a constructive discharge. The employee gave the employer no choice but to end the employment .. and in this case the employer is saying you refused to work the hours required.

This means the employer was taking those casual conversations and your requests as a refusal. You need to focus on the fact that at no time, did the employer say to you I'm sorry, I can't grant your request I need you to work if you can't I will have to replace you or terminate your employment.

There is the element of "what's reasonable" in every unemployment hearing. Can an employer reasonably assume that a request to leave by 4 to "pick up your little girl" meant you were "refusing to work past 4PM? (You might also want to check the guide under voluntary quit / Domestic circumstances). Can an employer reasonably assume the during a casual conversation in which you mentioned summertime and how nice it would to not work weekends was a refusal to work weekends. That would be ridiculous .. we could all be fired if everything we said was assumed to be a demand or refusal.

You may want to consider arguing that the determination is in error because you did not quit by refusing to work the required hours, but were in fact terminated because of requests to the employer about being off by 4 to pick up your child to which the employer responded "no problem". If you had known the employer would terminate you after approving the request .. you would have sought other arrangements.

I don't even know what to say about a conversation about how nice it would be to have the weekends off.




May 19, 2009
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Ok...
by: Anonymous

When the assistant manager handed me my final paycheck and said, here you go, we no longer need you because we hired a bunch of other people that could work more hours. I didnt want to be confrontational, so I said ok, but i said it in a way that she could tell I was very confused.
The owner wasnt the one who fired me...
EDD's determination says....
You were discharged from your last job with ****co. because you refused to work the hours required by the employer. After considering avaliable information, the department finds that you do not meet the requirements for payment of Benefits. Section 1256 provides-an individual disqualaified if the department finds he voluntarily quit his most recent work. Section 1260 A provides- an indiviual disqualified under Section 1256 is disqualified until he/she, subsequent to the disqualifying act, performs services in Bona Fide Employment for which he/she receives remuneration equal to or in excess od 5 times his or her weekly benefit amount.

May 19, 2009
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Credibility - an intangible factor in an unemployment hearing .. or life in general
by: Chris - webmaster:)

Hi again,

C'mon .. It amazes me no end how gullible and trusting American workers are when it comes to "employment and their employers". We're talking unemployment here, a cost that can have an substantial effect on their bottom line.

When presented with information that an employer may be attempting to pull a fast one .. we act unbelieving, shocked, stunned and even outraged. What .. we think these people that we rely on for the tenuous existence of our lifestyle, let alone our subsistence, first had to pass a "sainthood test"?

I've seen enough employer documents to know, that even if a company is a great company to work for .. that when it comes to unemployment .. it is the employer "agent" which is just another name for the manager or supervisor that an employee needs to be wary of. The same thing holds true for owners of some small struggling businesses.

Almost every state website has a "button" to report unemployment fraud and for some reason everyone assumes only unemployment claimants try to commit fraud. Hell, a harassing neighbor can cause trouble for you if they want to.

So what if he scribbled all over the timecards. This could have been done in the time it took for him to find those missing timecards.

Credibility is something that resonates .. as "the truth".

I understand you want to win .. but, as of yet, the one thing I keep asking about which you have not given any details about is the conversation that took place between yourself and the employer at the time of termination. What was said? This alone is a big stumbling block for me. I find it hard to believe that when you were told you were being replaced with others who could work more hours .. you didn't make an attempt to explain to the employer they had misunderstood you by making an assumption about your casual requests.

I, who cannot see the "state file" have questions .. Is it possible you've neglected to give me the information that actually caused the state to make the decision they made?

If you want, why don't we try this. There's a piece of paper the state sends that has a short statement as to the claimant's reason for the separation. What does it say?

Then, verbatim, let me know what the determination says as to the reasoning for their decision.

May 19, 2009
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Also......
by: Anonymous

I didnt voluntarily quit. I needed the job. How can they say that I voluntarily quit when I didnt? I was fired for false reasons. Another thing that happended yesterday, was I went to pick up my time cards, and they had been altered with scribbles.... Also, on the bottom was a * and it said cant work weekends under my name. That is when i brought up the fact that I NEVER said I couldnt work weekends, I just asked to be off at closing (4pm). That was never there before I had left and I brought that up, and he said that he writes those things when he gets home. My question is, how can this be legal? He could've wrote anything on thoses papers after I filed a claim with EDD. Shouldnt an employee have to sign something of that sort? He has NO proof that I said I wouldnt work weekends, so what should my next step be??

Thanks for all of your help with this!

May 19, 2009
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An employer's contention
by: Chris

I don't quite understand .. what it is you don't understand.

It's important to understand that adjudicators make determinations on limited fact finding. I cannot tell you why they opted to find in favor of the employer. It may be that you, the claimant, did not provide adequate information to rebut what the employer is contending to the state.

I would want to know what was said to the employer at the time they let you go. If you were working 40 hours a week. If you were refusing overtime, etc.

A hearing is a fact finding mission. The unemployment hearing officer's job is to "fully" develop the facts and to either affirm, amend, or reverse the adjudicator's determination.

I think .. for the employer to prevail at hearing, they need to prove you "refused to work" hours. You are telling me the employer made their decision to terminate based on a casual conversation about approaching summertime and how it would be "nice" to have weekends off and a "request" to be off by 4 to pick up your little girl.

Did the employer ever let you know that you were placing your job in jeopardy if by expressing a casual wish to be off on weekends or requesting to be off by 4? You said no, when you told me the employer said, "no problem".

Were you working 40 hours a week? An unemployment claimant cannot limit their self to part-time work .. unless a state has a part-time worker provision, which California does and allows establishment of a claim on part-time work if a history of part-time work can be proven.

You said you were fired. At the hearing it is the employer who must sustain the determination that they had "good cause" to do so. They must prove "misconduct".

Unless you've left out some relevant information .. I think they will have a hard time doing this.

May 19, 2009
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When I was let go
by: Anonymous

They didn't tell me it was because I wouldn't work weekends, they told me it was because they hired more people that could work more hrs. It wasn't until the lady from EDD told me, that I found out that was the reason they gave edd. I called the owner and said, you realize I never once said I can't work weekends right... I only requested to be off by 4.
He said huh?? I said ya, I never said I won't work weekends, I have been working weekends my whole life, I just asked to be off by 4.
So the reason they terminated me, and the reason they told edd were totally different.
Any advice with that scenario.




May 18, 2009
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A distinction between asking and refusing.
by: Chris - webmaster:)

Hi Anonymous,

The information from your past employer is not really relevant.

It's the separation from this employment that is relevant,

When the employer let you go, did you tell them you only asked for weekends off and let them know that just because you asked didn't mean you wouldn't work weekends? I hope so.

1256 is the section which contains the general statute about what disqualifies a person. 1260(a) is the section which describes the length of the disqualification.

It sound to me like the state thinks you were limiting your availability for work though.

The distinction you'll need to focus on is between "asking" for weekends off, and "refusing to work weekends".

California is usually referred to by employers as one of "those states" that gives unemployment to anyone, but from some of the recent questions, I've been getting here on unemployment-tips.com .. I'd say there might be some leaning toward unfavorable rulings for claimants at the initial level .. maybe due to the fact that California is out of money. And, in any case, I do not hold with that opinion for California at least. The recipiency rate does not bear it out.

If a state's fund becomes insolvent .. they can't just stop paying unemployment benefits, they are forced to borrow money from the federal government and they must repay. This of course is just my "opinion".

Interestingly enough, I think the part of the eligibility guide that may be most relevant to you is under Voluntary quit / working conditions. But certainly do not fail to check other issues. The subjects are nicely categorized and you may find something else relevant, and it would be really nice of you to post a comment to your submission if you do find something.

At the hearing I think it is essential the distinction between asking and refusing be a focus for you. I might have concerns if the employer is able to show you flat out refused to work weekends, but I have serious doubts about a decision that sounds like it assumed that the act of asking is misconduct.

Additionally, when you were hired you were told it was open? to 2 PM. What? .. if we accept a job now .. we're expected to become indentured servants??? We work to support our life. Not twist our life into something we no longer recognize for the sake of our master ... I mean employer:)

Chris

Get smart about being an employee. Know your rights as an "At Will Employee Before not after becoming an employee"!!

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