LEGAL GUIDE
Written by attorney John Francis Mccarthy

How to Collect Unemployment Benefits in California Part II

You can find Part I of this guide here: https://www.avvo.com/pages/show?category\_id=6&permalink=how-to-collect-unemployment-benefits-in-california-part-i

III. HOW DO I APPEAL FOR UNEMPLOYMENT BENEFITS?

a. What is the First Thing I Need to do to Appeal an Unemployment Decision?

The first thing you need to do when appealing is file your appeal. The appeal must be filed within 20 calendar days of the mailing date of the "Notice of Determination and/or Ruling." The EDD usually sends an appeal form. If you didn’t get one then you can find one here: http://edd.ca.gov/pdf\_pub\_ctr/de1000m.pdf (http://edd.ca.gov/pdf_pub_ctr/de1000m.pdf). Or, you can write a letter. You don’t need to provide some lengthy statement. In fact, it’s best to just say, "I respectfully disagree with the decision because the EDD made a mistake and I am entitled to benefits under the law." The EDD will send you a letter acknowledging that your appeal was received. About 4-6 weeks later, you will receive a Notice of Hearing with the Hearing date and time, the name of the Administrative Law Judge who will oversee the hearing, and the legal issues that will be considered. You must attend the hearing. If you cannot attend the hearing, you can show "good cause" which is a reason, beyond your control, that effectively prevents you from attending the hearing on the scheduled date…like the surgery above.

b. How Do I Prepare for an Unemployment Hearing?

Good preparation is essential to making you feel calm, confident, and with a clear plan. You should:

  • Review the appeal file. You should go in and review the entire appeal file as soon as possible. You’ll probably see: claim notes; the employer’s response; a record of the phone interviews; the Notice of Determination; and the Appeal you filed.
  • Learn the law. You have to figure out what legal standards fit the facts of your case. You can learn a lot about the law here: http://edd.ca.gov/UIBDG/ (http://edd.ca.gov/UIBDG/). That site is particularly good because it has the various issues that could come up and explanations about those issues.
  • Gather documents that support or hurt your position like performance reviews, personnel manuals, employee commendations or reprimands, and written correspondence between you and the employer. You have the right to review your personnel file and to make copies of any documents that you have signed.
  • Gather witnesses and/or affidavits from witnesses who can personally confirm important parts of your story.
  • Think about questions to ask and questions you’ll be asked and think about how you’d make a short argument about the case (in three minutes or less).

c. Do I Need to Attend the Unemployment Hearing?

You have to attend the hearing. The ALJ will open the hearing by turning on a recording device and making a record of the proceedings, and then asking if anyone has any questions and then briefly explain the issues and the applicable law. Next, the ALJ will number the documents in the appeal file and admit them into evidence. The ALJ will swear in you, your employer and any witnesses before asking the witnesses to leave the room. The ALJ usually asks the questions. The ALJ usually asks the employer the questions first in a misconduct case and you the questions in a "voluntary quit" case.

After the ALJ asks you questions, the employer is entitled to ask questions. Remember to: 1) directly answer the specific question asked-pause to think; 2) ask for clarification if you need to; 3) respond in a respectful and honest way; 4) avoid talking too much- it’s probably better to say too little than too much; 5) don’t get angry or frustrated at your employer.

If you’re going to bring documents to submit then you should bring three copies, one for the ALJ, one for your employer and one for you. Try to get witnesses to come instead of just having them sign declarations or affidavits. Remember that you’ll have the chance to ask the employer some follow-up questions. You should think about those before you go. After you and your employer have given your sides of the story, the ALJ will probably give you and the employer a chance to provide a closing statement. You should give one. The closing statement should be short, no more than 2-3 minutes and it should hit the key points and the law. The ALJ will then ask if there are any questions and conclude the proceeding. The ALJ usually supplies their decision, by mail, within 2 days – 3 weeks of the decision.

d. Can I Appeal an Unemployment Hearing Decision?

If you disagree with the decision you can appeal to the California Unemployment Insurance Appeals Board. You must do so within 20 days of the date of the ALJ decision. You should contact a lawyer ASAP to help you with that.

e. What Are Some Common Unemployment Appeals?

Employees only get benefits if they’re separated from employment through "no fault of their own." There are only three ways to describe how your last job ended, "lay-off", "discharge," or "quit." A "lay-off" is when you can’t work because your position or work was eliminated and there was no further work offered by the employer. Lay-offs typically lead to eligibility. You "quit" when you refuse to continue working although there was still work to be done. A "discharge" or being "fired" or "terminated" is when your employer refuses to allow you to work even though there is still work available. If you are discharged, you’re eligible for benefits as long as the employer cannot show that your discharge was the result of your "misconduct."

If you quit then you can only get benefits if you can show that you quit for "good cause" and that you took reasonable steps to solve the problem. Good cause is real and compelling reason that caused you to leave your job even though you genuinely wanted to keep working. It can include things ranging from relocating, caring for family members, reasonable and good faith fear for your health, unsafe working conditions, abusive supervisors, illegal discrimination or harassment, illegal or unethical orders and fraud or misrepresentation. Good cause doesn’t include, job dissatisfaction, disagreements with management, changes in work schedule, searching for work, or transitioning to self-employment or school. You also have to show that you discussed the problem at least once with your employer and gave your employer an opportunity to fix the problem.

If you were terminated, then the employer must prove misconduct by proving: 1) You owed the employer a material duty- one that is inherent and properly part of the job. For example, a waiter has to take orders, but doesn’t usually have to wash cars. 2) You substantially breached that duty meaning the incident is more than a small deviation from the usual practice. Think of it as showing up a minute late vs. 3 hours late. 3) The breach demonstrates a willful or wanton disregard for the duty (in other words you committed the act of misconduct knowingly, intentionally, or in reckless disregard for any potential consequences). 4) The breach tends to harm the business interests of the employer. This can be anything from making the business look bad in front of customers to sabotaging products.

Remember that the employer has to prove all four of these things. So you only need to convince the ALJ that one or more elements is missing. You can argue that you did not owe the duty in question, argue the breach was trivial, argue the breach was neither will, nor wanton, or argue that no harm could have followed from the behavior. You can also try to avoid disqualification by arguing: 1) It was just poor performance, which is not intentional. 2) It was a single isolated incident. 3) That there is no causal connection. In other words you were actually fired for something else. 4) The employer generally condones the behavior you engaged in.

However, the following usually qualify as misconduct: insubordination, repeated and unexcused absenteeism or tardiness, dishonest acts or statements, discourtesy toward customers or the pubic, an inability to get along with co-workers, or violence on the job, sleeping on the job, or controlled substance use on the job.

IV. HOW DO I REMAIN ELIGIBLE FOR UNEMPLOYMENT BENEFITS?

Once you’re deemed eligible, in order to stay eligible, you must 1) remain unemployed or underemployed, 2) be physically and mentally able to work in your customary occupation, 3) be immediately available for suitable work in a substantial field of employment, 4) be actively seeking work, and 5) comply with the EDD’s reporting requirements by submitting biweekly Continued Claim Forms. Failure to meet any of these requirements could lead to disqualification, penalties, and/or the repayment of benefits.

V. WHERE CAN I FIND MORE INFORMATION ABOUT UNEMPLOYMENT BENEFITS?

You can find more information on unemployment benefits at http://www.edd.ca.gov/ (http://www.edd.ca.gov/). Of course, if you’re looking into unemployment benefits, it’s entirely possible you’ve suffered a wrongful termination. To learn more about wrongful termination you should check out: http://www.californiaemploymentlawfirm.com/wrongful-termination (http://www.californiaemploymentlawfirm.com/wrongful-termination). We offer free consultations, contingency and/or fixed rates. You can find out more about us at http://www.californiaemploymentlawfirm.com/ (http://www.californiaemploymentlawfirm.com/).

We offer low-cost advice and counsel on how to obtain unemployment benefits. Of course, if you’re looking into unemployment benefits, it’s entirely possible you need a wrongful termination lawyer (http://www.californiaemploymentlawfirm.com/wrongful-termination). If you feel like you have been the victim of age discrimination (http://www.californiaemploymentlawfirm.com/age-discrimination), gender discrimination (http://www.californiaemploymentlawfirm.com/gender-discrimination), race discrimination (http://www.californiaemploymentlawfirm.com/racial-discrimination), disability discrimination (http://www.californiaemploymentlawfirm.com/disability-discrimination), religious discrimination (http://www.californiaemploymentlawfirm.com/religious-discrimination), pregnancy discrimination (http://www.californiaemploymentlawfirm.com/pregnancy-discrimination), sexual harassment (http://www.californiaemploymentlawfirm.com/sexual-harassment), or sexual orientation discrimination, you may have a case. We offer free case evaluations, contingency and/or fixed rates. You can find out more about us at http://www.californiaemploymentlawfirm.com/ (http://www.californiaemploymentlawfirm.com/). Call today for a free consultation at (800) 690-1701.

John McCarthy is a San Diego employment lawyer handling wrongful termination, discrimination, and wage and hour (http://www.californiaemploymentlawfirm.com)_issues. He counsels, and represents employees, and writes a_ California Employment Law Blog (http://www.californiaemploymentlawfirm.com/law-blog/blog)_._

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