Today, we received good news from a client who we represented at an appeal hearing at the San Francisco office of unemployment insurance appeals board. The situation was somewhat unique. The client, who was a new employee for the City of San Francisco had a terminally sick mother, who lived overseas and who needed constant care and supervision. Our client approached his employer's hr and explained the situation, expecting them to suggest what options he has in order to take care of his mother.  The employer than told him that his only option was submitting a letter of resignation, and that's what he ended up doing.  Our client applied for and was initially granted unemployment benefits until the employer appealed, arguing that the employee could have and should have explored other options, such as requesting leave and since, according to them, he resigned without good cause, he should not be qualified for unemployment benefits. 

At a hearing, we argued that even though our client could have and should have requested leave, the employer is in a better position to do that, and the fact that they offered resignation as the only option (as was reflected in the e-mails) suggest that obtaining leave would not have been likely. Also, the employer did not clearly communicate leave rights to the employee upon hiring (the employee handbook was very lengthy, vague and lacked employee signature acknowledging receipt).   

In its decision, the Appeals Board first pointed out that under the law caring for an aging parent is a substantial compelling reason for resigning, entitling claimant to benefits. The judge found claimant's testimony that he was never advised of leave, that he tried to find someone else to take care of his ill mother but couldn't, and that he returned from overseas just a few weeks after and attempted to get his job back with the same employer, to be credible evidence that he resigned with good cause, affirming the decision to grant the benefits.  

Qualifying for unemployment benefits after resigning is often an uphill battle, since the employee has to show "good cause" for resignation, which is substantial, compelling reason for quitting.  It cannot be a trivial reasons, such as bad office relationships, unfavorable performance review, not being promoted, etc. If you are thinking of resigning but you are concerned about your potential eligibility for unemployment benefits, it would be a good idea for you to run your situation by an experienced employment attorney, who will be able to assess your chances of obtaining unemployment benefits in light of your specific circumstances.  

In the recent unemployment appeal hearing at the Oakland office of the California Unemployment Insurance Appeals Board, our office handled and prevailed in a relatively challenging situation. The claimant was driver for a uniform supply company. He was terminated for violating the employer's policy which prohibited talking on the cellphone while driving (whether with a headset or without). The claimant answered his employer's call while driving, receiving a citation from the policy and was terminated shortly after. 

Initially, the claimant was denied benefits as he was found to have been terminated for "misconduct" within Unempl. Insurance Code sec. 1256. During the appeal hearing, we made a few arguments that convinced the judge that the above policy violation fell short of "misconduct" as defined by the code.  The important precedent case for these kinds of situations is Delgado v CUIAB (1974).  In that case, the claimant, a grocery checker, was fired for knowing violating the employer's rule when she postponed recording a certain purchase. The claimant believed that her departures from the rule were acceptable to her immediate supervisor and the store manager, who knew of them and participated in them. The claimant was never warned to stop this practice. The Court of Appeal held that the claimant reasonably believed that her actions were approved or condoned by her supervisor, and thus there was no "misconduct". 

The Delgado case can be used effectively to win at the unemployment appeals hearing in those common cases where the violation that lead to termination, even if was known to be against the company policy, was not significant and where the employee, when committing a violation, was arguably acting with an intent to benefit the employer.

Some workers turn a potentially good discrimination or wrongful termination into a no case by prematurely resigning or quitting their job. This usually happens when an employee is treated unfairly and he feels extremely unhappy at work. When quitting, that worker might believe that he is being constructively discharged. In most cases, however, bad or hurtful treatment of that employee does not rise to the level of constructive discharge, which is objectively intolerable working conditions that would force a reasonable employee resign.     

Here is a typical example of a situation where resignation would be premature and would make the potential wrongful termination and disability discrimination case more difficult to prove. Suppose you are off work on disability leave till April 30. On April 10, your employer tells you that you have to return to work by April 20 or you will be fired, and they don't care that your doctor's note instructs you to stay off till the end of the month. This is a situation where you are much better off letting the employer termination you then resigning before April 20, like some employee would choose to do. Here, resigning might completely eliminate a wrongful termination claim, since you actually haven't been terminated. Resigning may also create problems in obtaining unemployment benefits. 

If you are thinking of resigning and taking legal action against your employer for discrimination, retaliation or wrongful termination, consult a knowledgeable employment attorney in your area before you actually resign. Your attorney may be able to help enhance your case or even prevent those mistakes that will turn a good case into a not-so-great case or no case at all.   

Recently, we represented a client in a difficult situation with EDD. She was laid off and subsequently rehired by the same employer to work on call about 2-3 days per week. She applied for unemployment and was initially approved. She truthfully stated on her initial application for unemployment benefits that she expected to return to work for her most recent employer.

About two years later, while our client continued to receive unemployment benefits, her employer noticed a discrepancy between her actual income while working on call and continuing claim for unemployment benefits, which made it look like she was receiving the maximum amount of benefits per week, as if she wasn't working at all. The employer contacted the EDD with that concern, wondering why our client was receiving full benefits while working on call and having some income every week. In turn, EDD issued a determination that claimant incorrently reported or failed to report her income at all for many weeks during the past 2 years of receiving unemployment benefits. A notice of overpayment and demand to repay over $34,000.00 were subsequently issued by EDD to our client.

On the appeal hearing in front of the CUIAB (California Unemployment Insurance Appeals Board), the judge confronted our client with the actual timesheets that she filled out and signed, asking her why she marked that she didn't work for compensation during the weeks when she did. Besides stating that her English wasn't good enough to understand the paperwork, which was hardly convincing, our client did not any other explanation. And there could be no other explanation for that misrepresentation. 

This case is an important lesson for unemployment benefits receipients in California, who have to make sure that they fully and accurately report their work status and income on every single timesheet submitted to EDD every week to avoid dealing with overpayment issues and fines years later.

Generally, an employee is disqualified from unemployment benefits if that employee leaves employment volunatrily (resigns) without "good cause". A claimant who has a compelling reason for leaving employment or who was discharged or laid off for lack of work, but leaves voluntarily earlier than the circumstances reasonably required, leaves employment voluntarily without good cause and will be disqualified from unemployment benefits. (Precedent Decisions P-B-27, 37, 39, 228 & 242).  

In general "good cause" is such a cause as would, in a similar situation, reasonably motivate the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the unemployed. Evenson v. CUIAB (1976). 

Thus, under the law, demotion with significant wage reduction is usually not good cause of quitting a job, unless the reduction is so drastic that it reduces the employee's wages in a way that reasonable leaves him know choice but to quit.  Further, the law is clear that if you resign before you are laid off or terminated, even when you know for sure you will, you will likely be disqualified from benefits. 

It is strongly recommended that you counsult with an experienced employment attorney before you make the decision to quit your job to make sure that you explored all the options available to you under your circumstances to maximize your chances of eligibility for unemployment benefits.

Under the law, an individual who is otherwise qualified for unemployment benefits is not eligible to collect those benefits during the priod of time when he was unavailable to work. This means that if you become unable to work for a few days or a few weeks while collecting unemployment, you must report it on your weekly claim form (there are specific questions on that form that inquire into your health condition and your ability to work).

This is especially important if you are filing for any kind of disability benefits. If EDD finds out that you collect both unemployment benefits and disability benefits, they will charge you with fraud and will demand repayment of unemployment benefits in addition to penalties. As soon as you apply for any kind of disability benefits, you should either stop filling out weekly unemployment benefits claim forms or at the very least point out on your claim forms that you are unable to work due to your medical condition.

One of the large employer's favorite ways to get rid of an employee, for a lawful or unlawful reason (i.e. due to discrimination or retaliation) is to start creating a record of poor performance, through series of negative performance evaluations, warnings, and PIP's (performance improvement plans). Since the manager has pretty much full discretion and allowed to exercise his/her judgment in evaluating an employee's performance, driving an employee out that way for fabricated performance issues is relatively easy.  

Last week we represented a former employee of Well Fargo Bank at unemployment benefits appeal hearing, who has been terminated for alleged poor performance after receiving an award for outstanding 5 years service with the company just a few months before being fired. He was fired shortly after turning fifty five. Our client's manager written him up twice before terminating him for alleged inaccuracies in his work. Reversing the denial of unemployment benefits by EDD and awarding benefits to our client, the appeals board reiterated yet again that "mere inefficiency, unsatisfactory conduct, poor performance as a result of inabiltiy or incapacity, isolated instances of ordinary negligence or inadvertance, or good faith errors in judgment or discretion are not misconduct within the meaning of unemployment insurance code that would disqualify claimant from unemployment benefits."   

I can smell age discrimination all over this termination. The question is whether we will have sufficient evidence to prove it when we file a wrongful termination lawsuit.  

If you find yourself in a process of applying for unemployment benefits, it is very important that you read each and every question on the questionnaire and make sure that you answer the questions truthfully or correctly. If you don't understand a question you should contact the department for assistant or get in touch with an attorney specializing in unemployment benefits law.

The reason that filling out the paperwork correctly is so important is that the department may interpret an innocent mistake in your filling out the paperwork as falsehood, and an intentional attempt to defraud the department. This, in turn, may result in denial of benefits due to misrepresentation or even an obligation to repay the benefits which have already been paid.

Recently, one of my clients was denied unemployment benefits that were due to her based on the second extension approved by the government. The reason that the claimant was denied benefits was the conflicting information she was receiving about her role in making sure that she continues to receive the benefits. The information pamphlet about the second extension stated that the claimants who were otherwise eligible for benefits did not need to do anything in order to continue receiving the payments. However, the Employment Development Department (EDD) clerk, who handled my client's second extension process, was under the impression that a claimant has to re-apply in order to qualify for the second extension. This mistake caused my client to be left without benefits for a period of approximately 5 months. 

At the appeal hearing, the administrative law judge quickly recognized the department's fault and promptly issued an order (see attached below) reversing the denial of unemployment benefits, and awarding the claimant retroactive payments for the above period if time.