Ontario, CA asked in Employment Law and Gov & Administrative Law for California

Q: I need a CA. lawyer for EDD appeal. The former employer is saying I quit--I WAS FIRED-they won't provide cc of term ppwk

I have a text (w/date and timestamp) i sent to my boyfriend at the time of the firing saying "they fired me" (correct time of event IS verified by my former employer's own testimony).

2 Lawyer Answers

Donald Arthur Hilland

Answered
  • San Fernando, CA
  • Licensed in California

A: Based on your question, I am hoping you mean an EDD Unemployment Appeal, which if I'm correct you got a letter stating that under Unemployment Insurance Code 1256 you are disqualified and must now work another quarter and earn a certain amount before you can reapply. If I'm correct, then you should definitely appeal and your test does have evidentiary value. I have done over 100 of these Unemployment Appeals and I only lost 1, which was when the client did not bring me the paperwork within 20 days. That is a fairly strict rule. In fact, this client did not bring the paperwork for about 90 days. I did file the appeal and we lost because his excuse that he lost his apartment and the papers. Court said no. But I have been victorious in every other case and some would shock you as to the facts, as I know my colleagues and my client were shocked. But remember that Unemployment is there for a specific purpose, to help persons between jobs. The bar is very low. If the bar were high as employers and the EDD would like it to be, no one would ever qualify. I can tell you that I had a client who was late every single day from November to May when they finally terminated him, and I won his appeal and he got unemployment. Why? Because it was minor tardiness. He had lost his car and was riding a bike to work. Every day he would 1 minute late, 2 minutes, etc,, even now and then up to 4 or 5 minutes late. However, the standard is very low in the sense of qualifying. Here is the standard, from a case called Maywood Glass, that the employee's "misconduct must be willful or wanton and tending to injure the employer." So yes, employer is saying the employee broke the rules, he was tardy, I fired him for cause. However, listen to the wording. Willful and wanton is like a criminal standard that we use on thieves or even murderers. And the fact is that for the judge to deny your appeal, you pretty much have to have committed a crime against the employer that is provable like theft or assault. But even as I say that, I can tell you that I got unemployment for a terminated custodian from the school district who actually punched his boss in the face. The reason, he was certain his boss was about to hit him. Everyone was shocked. The judge said that in this particular, although normally striking your superior would be a disqualifying event, in this case the employee acted in self-defense because his boss had for years harassed and bullied him and he was afraid his boss was about to hit him. Again, the bar is low.Now in your case it sounds like they are saying you quit and that is your disqualifying event. However, several things there as well. I represented a mother with a newborn who quit because she had no safe, sanitary place, as the law requires to pump her breast milk at work. They were telling to do it the stall in the women's bathroom. I got her unemployment. Because the quitting was what we call in the law a "constructive termination," meaning that she had no choice. LIke when the landlord doesn't fix the heater, and you're cold, it is a "constructive eviction," meaning you can move out and not be liable for rent. In fact, you can sue the him, which is what the mother with the newborn did for a sizable settlement. In your case, if they did fire you and you have an excited utterance at the time that is admissible evidence and would be presumptively considered the truth because you said it, or texted it in this case, in the excitement of the moment without time to reflect or concoct a plan to deceive. I would certainly think with the facts that I have your case is very winnable, and depending on the circumstances you could even bring a wrongful termination claim against your employer as well. Employers lie. (Google Maywood Glass. So you know, it is Maywood Glass Co. v. Steward,(1959) 170 Cal.App.2d 719, meaning that is the law book where you will find it, but everything is on the internet nowadays.) Good luck!

Donald Arthur Hilland

Answered
  • San Fernando, CA
  • Licensed in California

A: So again, I was just starting to really answer your question when I ran out of space. They only let me use a certain number of letters and so I apologize, but i wanted to show you what the law is regarding EDD appeals because I know people are not aware of how the EED denies so many claims but if people would only appeal their claims are legitimate and easily winnable. I am amazed how many lawyers also do not know the rules for EDD and the Unemployment Insurance Code and the basic case law like Maywood Glass. Employers sometimes bring attorneys, and they are never prepared and never know what I know and now you know. So here's another tip. I do not advise you go without an attorney for several reasons, but i am going to share with you the solution to your cryptic abbreviation which I believe is that they won't give you a copy of the termination paperwork and they are telling the EDD you quit voluntarily, so you're ineligible for unemployment. ) Note also that under California Labor Code 432 they are required by law to give you a copy of anything you sign) Here is the tip. You can send a letter CERTIFIED MAIL/RETURN RECEIPT REQUESTED," as indicated even though it will cost you $7.00 to send it) under Cal. Labor Code 226c. demanding a copy of your personnel file, which must include the termination paperwork by the way, and if they fail to send it then you can sue them for violation of Labor Code 226 for $750 If they do send it, they have 21 days to do so, that's why you are going to send it certified so they cannot claim they did not get it and the time is running, then you will get a package in about 3 weeks with your personnel file. Here is the labor code 226 (c) An employer who receives a written or oral request to inspect or copy records pursuant to subdivision (b) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A violation of this subdivision is an infraction. Impossibility of performance, not caused by or a result of a violation of law, shall be an affirmative defense for an employer in any action alleging a violation of this subdivision. An employer may designate the person to whom a request under this subdivision will be made. Here is the letter you will send YOUR NAME YOUR ADDRESS DATE SENT VIA CERTIFIED MAIL/RETURN RECEIPT REQUESTED (those green cards)EMPLOYER NAME,EMPLOYER ADDRESS RE: Employee Name, Number if appropriate

Greetings:This is a formal request that I be permitted to inspect the contents of my personnel file and payroll records pursuant to California Labor Code Sections 226c, 432, and 1198.5. Please provide (1) a copy of these records as soon as practicable but no later than 21 calendar days from the date of this letter and (2) copies of any job-related documents I have signed, including documents from my personnel file, any manager files, and corporate files. Thank you for your assistance and prompt response to this lawful request. Yours truly, YOUR NAME Again, even though I am giving you this, I do not advise you go to the hearing without an attorney. The employer may have one. Even if the employer does not show up, you still have to prove your case. You do not win by default like in kickball. And you need to be advised at the very least of how to answer questions because most people - even Justice Kavanaugh I saw who is a judge by the way -- really sucked at answering questions and making a good impression! Also EDD is rather quick now. The last appeal I mailed to EDD on Tuesday, 9/18 we got a hearing date for 10/3 back in the mail on Tuesday, 9/25, so only a week, and then only a week till the hearing. Not the 3 weeks you need for the documents. So I don't want you playing with fire, but if you get your appeal all ready and wait until say the 15th day or 17th day, you may time it right. So what do you say on the appeal? Outaspace

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.