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UNEMPLOYMENT APPEAL HEARING STATE CA

by Sophia
(Temecula, CA)

Hi I was recently terminated for "dishonesty and insubordination" on 24 Nov10. When I asked the HR- Director in what way, she stated that I was found to be dishonest in an investigation they conducted into my allegations of sexual harassment and discrimination. She also stated that due to this dishonesty I feel/found that I filed a complaint with DFEH which had no merit which is considered insubordination.


I received my letter of denial of benefits and immediately requested a copy of the case file. It stated that I was fired because on 19 Nov 10 I was asked to return documents in which contained proprietary information and I did not do so. It was determined after being investigated by a hired atty/investigator that my complaint of sexual harassment/discrimination claim had no merit. I was accused of insubordination because I did not follow the company's process to request help.

EDD wrote reason for decision: Was I was discharged when I removed documents containing proprietary information and refused to return them when asked to do so. The available information shows willful misconduct in that I disobeyed reasonable instruction from employer.

This is so far from the truth I really am concerned.

So my concern is this, is a battle of my word against their word. (Plus this is the first time I am hearing this. I was not advised this ever by my employer)

In regards to the conversation they are referring to the HR Director stated I would get a copy of the meeting minutes/notes. I never did. So I have my meeting
notes which include the questions asked and the answers given by both myself and HR.

Can I use this as evidence in my appeal hearing to show what was asked in the meeting in question in regards to the "proprietary documentation"?

My employer never states what proprietary documentation I supposedly took, don't they have to disclose this?

Should I focus on the reason for the decision or everything that was documented as a reply from my employer?

Does my employer have to prove their reason for terminating me?

Who has the burden of proof?

Thank you so much for your time as your reply is GREATLY appreciated.

:)



Hi Sophia,

You were terminated .. therefore the employer was the moving party and has the burden of proof.

That's about the only thing I don't have to speculate about.

Did the EDD interviewer ask you about this proprietary information?

I'm a little unclear about what the employer is calling proprietary documentation.

I think of client lists, secret formulas, documents describing a proprietary business or manufacturing process .. etc.

Even though it is your appeal .. the employer still has the burden and they must present witnesses and documents to sustain the finding of misconduct.

You can try to submit any documents you have to show the determination was incorrect. That's the point of a hearing. Instead of a phone interview it's a full fact finding process with both parties participating concurrently.

But, what is really troubling to me is why the determination went the way it did if everything was as you are telling it.

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Oct 11, 2012
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worried
by: Anonymous

I had my appeal hearing wed and the interviewer
Didnt ask me any questions she asked my former
Employer all the questions. My attorney asked mee
All the questions. The ex employer had my past
Write ups. Do i have a chance? Im in alabama


You'd know better than me.

What do I really know about your case now .. except that you had write ups .. and a lawyer.

Did your lawyer know you had write ups .. or did it take him/her by surprise?


Mar 11, 2011
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YOU ARE SO REFRESHINGLY AWESOME
by: Anonymous

Despite the many tears and angry thoughts...your comments brought me to loud laughter. I have emailed you... I started the letter but it's sitting here on my pc looking at me...
Help about the next appeal is probably an understatement.
I sent you a copy of the appeal decision so you can see what was determined.
To those who are reading this...

DON'T GIVE UP YOUR FIGHT!!!!

Well let you guys know how the next level appeal goes...




Headin' that way now:))

Mar 11, 2011
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I CAN'T BELIEVE IT
by: Anonymous

I lost my appeal....The ALJ made a determination that she agreed with my employer about my DFEH complaint not having any merit. The ALJ put the burden of proof on me stating, "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." She NEVER took into consideration the evidence I provided. She also states, "Because the claimant has not shown the documents and/or emails to the employer, the employer cannot confirm whether the claimant took propriatary or confidential information."
I thought that the burden of proof was on the employer and I thought that they had to prove that I took proprietary information.She NEVER once mentioned the proof I provided and only discussed the DFEH complaint and made her determination.
What happened to no verbals, in-formal verbals or write-ups???
I know you said the next appeal is harder but I have to appeal this.
Can you shed a little light on this next appeal level and what happens. On the form they ask for evidence and they ask why I disagree. Should I just say why? Does the information go to the employer and ALJ. At what level can they fight me?
My DFEH worker couldnt believe the decision because it wasnt based on the reason for termination..



Hi,

Do you still have my number? Or better still why don't you use the contact us button and email me and will arrange a time to talk about a board appeal .. because you are absolutely correct .. the employer must prove the misconduct .. the ALJ is not suppose to assume or determine anything having to do with the DFEH complaint .. it's not her place to force you to prove you aren't guilty of misconduct ..

By the way .. I'm so red hot mad .. it's OTH!!



Feb 23, 2011
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I don't think I'm as worried as you are .. but then I wasn't there at the hearing.
by: Chris - unemployment-tips


Here's my thoughts .. the ALJ was more annoyed with the employer than you.

Admitting that an email MAY contain confidential 3rd party information is not the same as saying that the emails you would not hand over to them did contain 3rd party confidential information .. therefore .. burden of misconduct .. not proven .. because they don't know what you have .. they are worried about what you have.

Every email I ever sent had that disclaimer on the bottom.

And yes .. if I had an email with a claimant's SSN .. then bad on me .. but if I was collecting emails of responses from the employer in regards to some of their more "questionable treatment of myself .. I don't see the validity of claiming you removed proprietary information.

To me .. it looks and sounds like grasping .. and need I remind you these tactics often work on people.

I think the employer should have let it go and cut their losses .. but I think I already told you that.

The lawyer was right .. the issue was not the DFEH claim .. it's their burden of misconduct, whether it existed and supported the termnation.

Let me know when you get the decision .. I'm chomping at the bit to know.

Feb 23, 2011
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I Had My Appeal Hearing
by: Sophia

Hi Chris,

Well I had my appeal hearing. So far my best friend and my husband feel that it went well for me. I on the other hand don't feel so confident. For starters they brought their attorney. So to sum up what happened. HR stated that I have never had any write ups, verbals or unformalized verbals. The judge asked her so as a result you all had no other outcome than to fire? HR fumbled the ball!!! Drew a blank and was speechless. The judge repeated the question and HR stated that yes they could only fire. The lawyer presented the "confidentiality agreement" I signed. I stated that is correct only that the information I had did not contain customer or 3rd party information. The was his only argument in regards to my "stealing" proprietary information. Other than that he hounded me on my DFEH case. He then tried to provide the judge with booklets of documentation and then asked her to assure that they remain confidential. She stated that they should take the documents back if they are "confidential". After about an hour the ALJ was clearly irritated and said to me that she was not there to determine whether or not my DFEH claim had merit. They stated that I refused to show my proof for the DFEH claim. The judge asked did I know that not showing this info would get me fired. I stated no, I was never advised nor was I warned. I was reading from my notes and she yelled, "Cant you remember?" I put my notes down and stated the answer with no problems. HR was questioned by her attorney and drew two more blanks of not know what to say. In closing the attorney stated that I conceded that emails could contain proprietary-customer-3rd party info. He further stated to the ALJ, "You and I both know that filing a DFEH claim is totally irrelevant and in that case everyone would be filing claims to get UE. He made no copies for me and intended for me not to get the documentation provided. The ALJ made a copy for me. He let me have the investigation taken by the internal investigator. Other what do you think...Does the "confidential agreement" I signed prove I have/stole proprietary info? It doesn't sound like they proved that I was dishonest or insubordinate.


Jan 28, 2011
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Dazed and confused??
by: Chris - Unemployment-tips

Dazed and confused is how they like you to be

I'm serious .. they want you to be this way .. but I have a better idea.

Shake it off and understand their weaknesses and your strengths.

I wouldn't worry about the personal note about you being rude .. it's irrelevant as far as I'm concerned and the interviewer has no reason to be at your hearing. Your supposed rudeness is not the issue .. misconduct related to the work is the issue.

It's funny where bias and subjective feelings show up in what is supposed to be an unbiased objective look at the facts ..

I can't tell you where, but I read recently that California is much more given these days to scheduling phone hearings and allowing one party or another phone participation to keep things moving.

You should consider this .. the rep I am referring everyone to right now .. until and if I find more willing to represent claimants .. would need phone participation. He's much more affordable than a CA attorney.

And he is very experienced and knowledgeable about unemployment and has represented people in a lot of different states.

Hearing representation to handle the details that can be intimidating and/or overwhelming like "cross-examining employer witnesses and knowing when to object on the record .. aren't things a dazed and confused person should have to learn how to do .. right before an unemployment hearing .. there's too much riding on it and board appeals are not a second chance as some would like to think they are.

If you can swing a rep or attorney .. do it.

Jan 27, 2011
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Still Dazed and Confused
by: Sophia

No the EDD worker never asked me about the proprietary information she only called to ask if the case with DFEH was still open and ongoing and if not what was the conclusion.


I believe I was discriminated against and I have my own emails/chats as proof. In my meeting on the day in question the HR-Director advised about removing proprietary information. I clarified that I do not have such information and that all I have are my own emails/chats. I asked twice for clarification if my emails/chats were considered proprietary and she clarified what stipulated as being proprietary and that would be documents that contain product, pricing, marketing information. What was asked during the meeting was if I would be willing to share my proof that I was using to prove my case of discrimination and I stated no.

So I am just as lost as you that I don't know what documents they are talking about. They never told me what proprietary information I was accused of taking and she never requested that I return my emails/chats; the EDD case file was the 1st time I ever heard of this.

I was just as confused as you that the determination went the way it did. But the only evidence I have as to why is for personal not fact reason.

In my EDD case file my EDD worker stated I was rude and upset from the beginning of the conversation. This is untrue. I was very nice and happy that she called because I am very confident about my DFEH case and the fact that I was terminated as retaliation only added to my confidence. She was very mean to me from the beginning. She would ask a question and before I could finish my answer she would cut me off and ask another. I interjected and advised that I can?t answer the questions she is asking if she won't let me finish. My tone was not disrespectful or anything I mean this is the lady that will deny or approve my unemployment for peets sake. At the end of the conversation I had her laughing and everything appeared to have smoothed out until I read the file.

I also feel EDD coached the employer on what I said and how to answer the questions. Example:
What was the reason given to the claimant for the discharge?
She was not terminated because she complained but was terminated because she was dishonest and insubordinate when asked to return the documents she had taken.

Just a speculation

This has been the worst experience of my life. I have been fighting nothing but lies both from my employer and now EDD. That?s why I inquired how you fight lies. So I am just as even more troubled than you with all of this.

Well once again I appreciate you tremendously for shedding a little light.

Does the personal comments the EDD worker put in the case file jeopardize my chance of receiving a fair hearing?

Also are you given a choice to a phone hearing vs. in-person hearing?







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