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My ex-employer cited misconduct as the reason for my discharge and I was denied benefits. Once I appeal, how will he have to prove my "misconduct"?

I was never warned verbally or in writing as to any misconduct and as far as I am concerned there was no misconduct on my part. However, my claim was denied by EDD.




Hi,

I assume you mean "disprove misconduct.

How the heck would I know how you might disprove that "whatever" your employer thought was misconduct isn't? I don't even know what you did to get fired ..

Why don't you take a peek at the California benefit eligibility and determination guide.


Comments for My ex-employer cited misconduct as the reason for my discharge and I was denied benefits. Once I appeal, how will he have to prove my "misconduct"?

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Feb 21, 2010
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In appreciation
by: Luis

Chris,
In appreciation for the time spent on my "cause" I just donated $20.00 via Paypal.
Thanks for your help!


Hi Luis,

I noticed and I sent you a thank you email:)

Is that what California call them "civil procedures"?

I'm always looking for "Administrative hearing rules of procedure for hearings.

Yes, I knew that about the statutes .. most states don't require that a "UI hearing representative actually be a lawyer .. only seven states do you need to worry about the rep being a lawyer and two of those have a workaround.

But almost every single state also have some little provision the dissuades attorneys from offering their services for unemployment hearings .. and although I don't know what that "amount" is in CA .. I know that in PA $300 is the max that can be approved. Not a big payday for a lawyer. But I'm sure they make it up by exaggerating how time they spend on "preparing for the hearing".

Did you know there is only one state in the US that requires good cause for termination .. and that in Montana.

Good Luck Luis. Hope you stick it to him.

I think I'm going to move this entire thread to appeals .. seems more appropriate there.

Chris

Feb 21, 2010
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Procedures
by: Luis

Chris,
I?m assuming that by ?rules of procedure? you mean California Civil Procedures?
I just took a gander at ?California Civil Procedures? on the web and wow, it?s pretty overwhelming!
I also went over the California Unemployment Insurance Codes. Here?s something interesting that I found:
1957. Any individual claiming benefits in any proceedings before the appeals board or its authorized representative may be represented by counsel or agent but no such counsel or agent shall charge or receive for such services more than an amount approved by the appeals board. Any person who violates any provision of this section shall for each such violation be fined not less than fifty dollars ($50) nor more than one thousand dollars ($1,000) or be imprisoned not more than six months or both.

However, there is no mention of what the ?approved? amount is. I guess I?ll be finding out soon enough, won?t I?
As for my employer perjuring himself, he not only is capable, he already did! In fact he instructed my ?compadre? to deny having notified me of my termination before the Mexican court, and I?m sure that the reason they never answered my email was precisely to avoid incriminating themselves by admitting that they had terminated my employment. You see in Mexico, to terminate someone you have to follow a certain procedure and establish just cause or you risk being sued for illegal termination. There is no such thing as a ?layoff? in Mexico. Since my employer hired me in the US, he thought he could dump me at any time without any liability. However, since I am a Mexican Citizen (with legal permanent residence status in the US) and was physically working in a Mexican Company, Mexico law applies. Therefore, I am entitled to file a UI claim against the US Company and sue the Mexican company for illegal termination.
He could have avoided all this by negotiating a severance package with me, which I feel I deserve after all that I?ve contributed to the company?s growth, but he?s far too cheap and ungrateful to do this.
Now he?s furious because he?s facing double jeopardy and is trying to get out of paying UI in the US and a judgment in Mexico. It looks like I?m in for a long fight!


Feb 21, 2010
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Contacting EDD
by: Luis

Thanks for the advice Chris, although it's going to be fun trying to get ahold of anyone at EDD.
I was told by an EDD employee that I ran into that it's IMPOSSIBLE (his words) to get through to EDD via phone. I'll try sending an email and hope fro a response. The one time I sent them an email it took them almost 2 weeks to confirm receipt!
As for the subpoena, I assume that I would be looking at whatever documents they presented and then deciding what to subpoena form the company?
It's just dificult for me to determine what to subpoena since this is a small and very informally run business with no written policies or procedures whatsoever!


Hi Luis,

Yes, I know it's hard to get hold of the EDD:) Many have told me the same thing .. but it just takes persistence along with that random element of luck on your side.

Subpoenas are issued when you can explain the need for the document(s) and how it is relevant to the "issue at hand".

You can not only subpoena documents .. you can subpoena witnesses

The fact that unemployment claimants are told they don't "need an attorney" becomes misleading and frankly, I believe morally questionable because when someone has the ability to subpoena .. it is something that can come back to bite you .. especially if the witness is hostile .. or fears for their job .. you never know what they will say.

Attorneys on the other hand at least some of them have acquired some amount of cross examination skill. They also understand .. or can easily access "rules of procedure" .. which I also suggest you find.

Administrative rules of procedures define your rights in the proceedings.

I often wonder how many unemployment claimants got screwed because they didn't know when to object, when to request a continuance, or understand a states rules of evidence matter.

I've heard from quite a few that their request for a subpoena of documents has been denied because the state told them it wasn't relevant to the issue at hand.

The main reason I encourage people to find a lawyer .. even if it is just for an hour is so they can ask questions and get a crash course in representing their self per se.

Unemployment hearings are mini trials and when a claimant gets a bad hearing decision .. they rarely have the ability for a successful appeal to the board because they don't know the rules.

Do you have a lawyer Luis .. because if you think the employer would perjure their self .. you need one.

Feb 21, 2010
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You can get what you need for now from the state.
by: Chris

Whoa,

Considering that the determination states you withheld information .. expect a misrepresentation of fact issue on the appeal hearing notice.

You should be able to call the department and ask how you can get a copy of their file .. including the adjudicator's notes.

Or when you finally get a hearing notice you can call that appeal office .. make sure the file has been transferred and then go down and view it and or make copies for yourself .. including the adjudicator's notes. If it's missing documents you know would be of use to you .. look into getting a subpoena at that time.

I'm wondering why the interviewer didn't call and question you about what the employer submitted. This is usually what they do .. offer you an opportunity to respond before they make the determination.

It would be difficult to disprove anything until you know what the employer told the state.

Guess I know what you'll be doing Monday.


Chris

Feb 21, 2010
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Explanation part III
by: Anonymous

Imagine my surprise today when the mail delivered a letter from EDD that states:

You are not eligible to receive benefits under California Unemployment Insurance Code 1256 beginning 12/27/09 and continuing until you.....

You were discharged from your last job with XXXXX because you were not performing the duties of your job as required. After considering the available information, the department finds that you do not meet the legal requirements for payment of benefits. Section 1256 provides.....

You gave the department incorrect information, or withheld information, concerning the reason you are no longer working on your job with XXXXX. After considering the available information, the department finds that you do not meet the legal requirements for payment of benefits. Section 1257A provides - an individual is disqualified if he willfully makes a false statement or withholds relevant information to obtain benefits.

You have the right to file an appeal......

Therefore my question as to how my ex-employer would need to prove my "misconduct" and how I can disprove it. For the record, it is a family company and everyone employed at the US office is family, which I'm sure would be willing to perjure themselves if necessary.
Please help!!!

Feb 21, 2010
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Explanation part II
by: Luis

On January 2nd I filed for UI online and stated the reason I was no longer working as layoff. In the comments section I stated that I had been notified that my services were no longer required.
That said, I have been a faithful and dedicated employee through the course of my tenure, having grown the company from 17 to 42 employees, improved quality and reduced labor substantially, resulting in increased profits for the company.
A couple of weeks after losing my job I found out that my subordinate and "friend" had been given my position as Director General of the Mexico plant. It is obvious that the company decided to save some money by getting rid of me and giving the job to my subordinate, who is on the Mexican company's payroll and makes substantially less that I did.
It is also obvious that their statement that I was "discharged for misconduct" is in direct retaliation because I am suing the Mexican company (owned by them) for illegal termination. The labor laws in Mexico are very different than those in the US and since I am a Mexican citizen and was working in Mexico, I am entitled to sue in Mexico courts. I mentioned this fact to the EDD rep that conducted the phone interview and she told me that it had nothing to do with my unemployment claim, since I was suing a US company for UI benefits. She explained that my ex-employer was claiming that I had been discharged for misconduct but she clearly told me that absent written proof from my ex-employer, she would decide based on my version of the facts. I felt confident that I would be awarded my claim since I know that I have never incurred in misconduct or been given any verbal or written warnings of any kind.

Feb 21, 2010
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Explanation
by: Luis

I apologize, I guess I didn't provide enough information to you. Here's the full story:
I was hired by my ex-employer in October of 2003 to run a manufacturing facility for them in Mexico. I was in charge of said plant until December 31st, 2009, when I was notified by my subordinate that my services were no longer required by the company. Said subordinate was my second in command and had been my friend for 30 years (I hired him).
The plant was closed on December 31st due to Christmas break, so we were not working. My subordinate called me via phone on the morning of the 31st and asked me to come to the plant urgently. Once I arrived he informed me that that morning the company President had asked him to accompany a person to the plant and give him access to my office so that "he could install some software" in my computer. After gaining access to my office, this person called the company President via cell phone and handed the phone to my subordinate. The President then told my subordinate that I would no longer be working there and that the person whom he had sent would be taking my computer, the company checkbooks, documents, etc. with him and would be changing the locks on the doors.
After telling me this, my subordinate told me he had instructions to escort me to my office so that I could remove my personal belongings. I asked him why I was being laid off and he said he did not know. He said that the only thing that the President had told him was that if I "cooperated fully", I would receive a month's pay as severance. He told me that "full cooperation" meant returning the company vehicle which I had been assigned, turning over my cell phone (the company paid for the service) and a digital key that is used for filing tax returns online.
I turned over the company vehicle, gave him the cell phone SIM (the actual phone is mine), removed my personal belongings and went home. Later that day I sent the General Manager (and President's son) an email stating that I had complied with their conditions and wanted to know why I had been laid off. To date I have not received a reply.

Feb 20, 2010
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Misconduct
by: Luis

I have no idea what my ex-employer told the California EDD. I just received a letter from the EDD stating that my claim was denied. There is no information as to what my ex-employer stated or submitted to substantiate his claim of my "misconduct". That is why I am asking what he would have to provide at an appeal hearing to prove his case. Also, what could I provide to disprove his case of I have no idea what he's considering "misconduct"?
Also, how can I subpoena whatever he submitted to EDD?

Thanks for your help!!!



Well Luis,

Don't you think the appropriate place to start would be with what you know about why you are no longer working?

I'm not a mind reader.

And by the way, if you were denied .. an EDD determination usually gives a brief description as to the situation that caused the denial .. so that also might be relevant because that's usually what the employer told the state.

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