San Jose, CA asked in Employment Law for California

Q: I was wrongfully terminated. How to challenge it? Can I apply for and get unemployment benefits?

Can I apply for the unemployment benefits while challenging it?

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2 Lawyer Answers
Neil Pedersen
Neil Pedersen
  • Westminster, CA
  • Licensed in California

A: Unfortunately your post does not provide any factual or legal basis for your claim that you were wrongfully terminated. In actuality, wrongful termination is a very narrow legal claim that most terminations do not fall within. To prove wrongful termination you have to prove that you were terminated because of your membership in a protected class of people, or because you engaged in some kind of legally protected conduct. Being terminated for unfair, or erroneous, or false reasons is not wrongful termination.

If you have a meritorious and valuable wrongful termination claim, you do not want to sign a separation agreement until you first seek a consultation with an employment law attorney who can give you an idea of the risks and the potential rewards of signing the agreement vs. pressing forward with a lawsuit.

The employer has no duty to pay you for time you are not working, so at any time it would be lawful for the employer to simply stop paying you. However, upon the date of your termination you are entitled to all wages owed to you at that time, including any accrued vacation pay owed to you.

Whether you file a claim for wrongful termination or not, you can file a claim for UI benefits. However know that if the employer claims you were terminated for engaging in some form of misconduct, you may have to fight for your right to benefits.

As to when to apply, do so one week after you are no longer receiving income from your present employer.

Good luck to you.

1 user found this answer helpful

Maurice Mandel II
Maurice Mandel II
  • Newport Beach, CA
  • Licensed in California

A: Your claim for UI benefits is a claim to the State of California and is not dependent on whether or not you are pursuing the issue of whether your termination was lawful/wrongful. Normally in a WT lawsuit the UI benefits offset your claim for lost wages.

IMO you need to consult with a local Employee's rights attorney, asap. You can usually get a free consultation.

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