Articles Posted in Unemployment Benefits

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.

severance-pay-unemployment-benefitsMany employee who are about to be laid off are concerned about accepting the offered severance package, as they fear that accepting a significant 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.

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.

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