San Francisco Employment Law Firm Blog

Employers who terminate employees routinely fight the award of unemployment benefits if they feel that the employee was terminated for cause or for misconduct and should not receive unemployment compensation, which results in increasing the premium that the employer has to pay toward that insurance reserve with the State.

Fighting unemployment benefit and even winning that fight is very likely to backfire and turn out to be much more expensive than simply letting an employee collect unemployment. Many employees, when laid off or terminated, at the very least consider in the back of their mind the possibility of suing their recent employer. Whether the employee decides to aggressively pursue litigation against his former employer depends on the number of factors, but the emotional component - the anger at the employer is certainly not an insignificant element in that decision. Often, it's what makes a difference between letting things go and going after the employer in court.

Consider terminating an employee who feels that he was fired unjustly. He is hurt and angry, but at the same time thinks that it's a better idea to take a break, collect unemployment and look for another job. He applies for unemployment and gets denied benefits because the employer stated that the employee was terminated for misconduct. This very likely takes the employee over the edge and drives him to file a lawsuit for wrongful termination, harassment, discrimination, defamation, intentional infliction of emotional distress, and many other possible claims.

Whether the employer wins or loses, the company will likely spend anywhere between $20,000 and $50,000 in legal fees on defense and often much more. Thus, even if the company prevails in the wrongful termination lawsuit, the cost will be much greater than allowing the employee collect unemployment and possibly paying out a small severance in exchange for a full release of all claims, like many wise employers routinely do.

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The hearing to contest the denial of your unemployment compensation benefits is very much like mini-trial. The employee and the employer find themselves sitting across from each other with or without legal representation in front of the administration law judge who will hear both sides, will allow both parties to ask each other questions and present their evidence and make a closing statements to support their position.

Support your Arguments with Evidence. The rules of admitting evidence are far more relaxed at an unemployment appeal hearing than the formal rules of evidence in trial courts. Thus, almost all evidence is admitted, although given different value according to its weight and credibility. The best evidence you can present is having actual, unbiased witnesses show up with you and testify as to the truth of what you you will telling the judge. The second best evidence is declarations signed under the penalty of perjury by any persons who witnessed any conduct by you or your employer, relevant to the appeal. Make sure to make two extra copies of any documents you plan to introduce into evidence - one copy for the judge and one for the opposing side.

Address Only Those Issues that are Directly Relevant to Your Claim. The biggest challenge that the parties to the hearing have is remembering that the administrative judge is only concerned with the most recent events that lead to termination. The hearing at the unemployment appeals board is not a hearing about harassment, discrimination, favoritism, defamation, retaliation or other civil claims. This hearing is strictly about whether the reason/s the employee was terminated disqualify that employee from the benefits.

Generally, the burden is on the employer to prove that the employee should not receive unemployment benefits. An employee, who is otherwise qualified for unemployment compensation, will be disqualified if he/she voluntarily resigned or if he/she was terminated for gross/intentional misconduct or comparably egregious violation.

The hearing judge gets annoyed and frustrated with the parties who bring their office politics and speculations about the workplace. The judge is not interested in hearing long stories about the history of employment and the background about the company. The judge wants to hear about the specific reasons for termination and see evidence in support of the parties’ arguments. Thus, the shorter and the more directly relevant your arguments are to the hearing officer, the clearer your position will be.

Be Respectful and Courteous to All Persons Present at the Hearing. The administrative officer hearing your appeal has a significant discretion in making a decision in your claim, and therefore it is worth doing your best to come across as a likable, reasonable person. You should avoid at all costs being dramatic, interrupt your employer's arguments or even worse - the judge or speak directly to your employer. Focus on the only goal you are trying to achieve at that hearing - to qualify for unemployment compensation benefits. This is not the time to close scores or prove that you were a good employee and that you were terminated unfairly.

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Posted In: Unemployment Benefits

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A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or - if the leave of the employee was unforeseeable - within two business days after the employee's leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has "reason to doubt the validity of the certification." The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

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Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Unemployment Benefits

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Once your local Employment Development Department (EDD) denies your unemployment benefits, you have an opportunity to appeal that decision in front of the Administrative Judge of the Board of Appeal. At that hearing, you will have the opportunity to explain to the judge why you should be entitled to unemployment benefits, and the employer will try to convince the Board while the decision of EDD should be upheld.

In many ways, that hearing reminds the bench trial, as the parties have the opportunity to make opening statements, present relevant evidence (documents) , as well as direct and cross examine their own as well the opposing witnesses.

An employee may be represented by an attorney, and such representation is highly recommended for three main reasons: (1) an experienced employment attorney will make more compelling arguments based on the law and the past case law, analogizing the employee's situation to other claims where the benefits were granted; (2) examining witnesses and eliciting from them the necessary information can often be tricky and requires experience that few, if any, non-attorneys have; and (3) at the end, most judges will take the lawyer's words much more seriously than the arguments of any other person.

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Many employee who are about to be laid off are concerned about accepting the offered severance package, as they fear that accepting a lump sum severance from their employer will disqualify them from unemployment benefits. However, the good news for employees is that under California law, severance pay is not grounds for disqualification for unemployment insurance benefits. One court held that dismissal and severance pay received by employees from employer upon termination of employment was not “wages” for unemployment compensation purposes within provision of § 1265 that payments under plan established by employer for purpose of supplementing unemployment compensation benefit shall not be construed to be “wages”, and benefits shall not be denied because of receipt of payments under such plans. Powell v. California Dept. of Employment (1965) 45 Cal.Rptr. 136.

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One of the most common ways that employer tries to fight their former employee's claim for unemployment insurance benefits is arguing that the employee was terminated due to misconduct. Misconduct in the context of unemployment insurance code is a term of art, and understanding its legal definition is crucial to appealing the denial of unemployment benefits at the appeals board if your initial claim has been denied.

Under California Unemployment Insurance Code section 1256 "an individual is disqualified for unemployment compensation benefits if the director finds that he left most recent work voluntarily without good cause or that he has been discharged for misconduct connected with his most recent work."

The standard for showing "misconduct" within the meaning of unemployment benefits eligibility is quite high and thus favoring applicants for those benefits. While such gross violations as violence or threats of violence at workplace and clear grounds for disqualification from unemployment insurance benefits, many of the less grave issues at work do not constitute misconduct. Thus, employee's mere inefficiency, unsatisfactory conduct, ordinary negligence, or good faith errors in judgment at work are not "misconduct," that will disqualify that employee from receiving unemployment compensation. In this context, the term "misconduct" is limited to conduct evidencing such willful or wanton disregard for an employer's interest as is found in deliberate violations or disregard of standards of behavior which employer has right to expect of his employee, or in carelessness or negligence of such degree, or recurrence as to manifest equal culpability, or to show an intentional and substantial disregard of employer's interest or of employee's duties and obligations to his employer.

Even refusal to perform work as directed does not always rise to the level of misconduct that disqualifies an employee from benefits. In one case, the nurse willfully refused to perform work because her consultations with outside authorities led her to conclude that health of patient would be jeopardized if she following her superiors' direction. Because her refusal to perform was out of reasonable and good faith fear of harm to others, she was entitled for unemployment insurance benefits after she was discharged for repeated refusals to follow her employer's orders.

Likewise, an employee's unauthorized departure from work did not constitute misconduct causing his discharge within the meaning of unemployment insurance code where the employer testified that it's the employee's inappropriate language following the confrontation on the day following the unauthorized departure and not the departure itself was the sole cause of his discharge.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Unemployment Benefits

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