Skip to main content

Do I have a good chance to win EDD appeal hearing with cause to leave job since my paychecks delayed for almost six months?

Sacramento, CA |

I worked for a company for over one year and had good reviews. Once owner asked me to wait on my payroll check since company was going thru financial hardship. I verbally agreed to it. He had a history to delay checks to his employees before. When I became a senior executive assistant and start managing business operations, I worked for 16-18 hours per day every day and had less than 10 days off in 8 months. I stabilize company finances. I asked to get paid, but he wasnt able to do so since he used all money for his personal(not business) expenses. He offered me payment agreement and to take vacation. My position will stay available to me. After I left he refuse my employment, he put stop payments on my postdated check that he gave me per agreement, and denied UI Claim CUIC Section 1256.

Attorney Answers 3


  1. Here is what the EDD Benefit Determination Guide says about your situation:

    "The State Labor Code provides that all wages, with the exception of wages to farm labor, domestic help, and governmental employees, are due and payable at least twice during each calendar month. Regular paydays must be designated in advance by the employer. Employees must be duly notified of any change in time and method of payment. Labor performed between the first and the fifteenth, inclusive, of any calendar month must be paid for between the sixteenth and the twenty-sixth day of the month during which the labor was performed. Labor performed between the sixteenth and last day, inclusive, of any calendar month must be paid for between the first and tenth day of the following month. All wages earned for labor in excess of the normal work week must be paid no later than the payday for the next regular payroll period.

    A claimant who quits because the employer failed to comply with the provision of the Labor Code regarding the time of payment of wages due would have compelling reason for quitting, provided the infraction was not an isolated instance. Circumstances beyond the control of the employer, such as natural disaster, could delay the payment of wages due."

    Financial hardship is no excuse for an employer to fail to pay its employees for services rendered. It appears to me that you can show you quit for good cause. For more on this subject, go to http://www.edd.ca.gov/UIBDG/Voluntary_Quit_VQ_500.htm#Wages . Good luck.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.


  2. Yes. I agree with Attorney Kirschbaum. If the facts are what you presented in your post, it seems you will be able to demonstrate that you quit for good cause.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


  3. Mr. Kirschbaum provided you with the right law on this issue (which is no surprise because Mr. Kirschbaum is a great attorney). So yes, you have a good chance at the EDD hearing.

    Note that your employer did not "deny" your claim. Only EDD can do that. What your employer did, most likely, was provide contrary information that you were fired for misconduct or quit without cause, either of which would deny you unemployment benefits if that had been what truly happened. The California Employment Development Department (EDD) administers California’s unemployment insurance program and evaluates claims for benefits. Often, EDD telephones the person making the application (claimant) and the employer and interviews each. EDD compares the statements of each party, and makes a decision based on information received. By the limited nature of the initial EDD process, it sometimes makes errors. For this reason, there is an appeal process.

    Be sure to bring evidence of the stop payment to the hearing because he may bring a copy of the check to try to prove he paid that amount.

    This employer may not have the money to pay you and may end up declaring bankruptcy. If so, be sure to put in a wage claim to the bankruptcy trustee because wages have priority over most other payments from the bankruptcy estate.

    Regarding the appeal hearing:

    The Notice of Determination stating your claim was denied includes information about the appeal. You MUST file your appeal within 20 days of the date stated in that letter. Do not miss the deadline.

    In the appeal, make a brief statement just one or two lines long saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. For example: "I didn't get paid for six months so I had to quit."

    In a few weeks, you will receive a notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible (cell phone record showing the 7:38 a.m. call, witnesses who overheard the boss yelling, etc.). You should also know the law the administrative law judge will consider. You can get a lot of helpful information on the EDD website.

    Home page
    http://www.edd.ca.gov/Unemployment/

    Eligibility requirements
    http://www.edd.ca.gov/unemployment/Eligibility.htm

    Summaries of the law (Benefit Determination Guide)
    http://www.edd.ca.gov/UIBDG/

    Appeals
    http://www.edd.ca.gov/Unemployment/FAQ_-_Appeals.htm

    Precedent Decisions (law the administrative law judges rely on)
    http://www.cuiab.ca.gov/precedent_decisions.shtm

    Frequently asked questions
    http://www.edd.ca.gov/unemployment/FAQs.htm

    Filing a claim for unemployment benefits
    http://www.edd.ca.gov/unemployment/Filing_a_Claim.htm

    You can be represented by anyone at the hearing. If your appeal will be difficult or you are uncomfortable speaking, you may wish to retain an attorney to help you prepare or to represent you at the hearing. For training, expect the attorney to need approximately three hours. For representation at the hearing, expect the attorney to need three to seven hours to prepare, depending on the complexity of the case, witnesses, documents and other evidence, and allow two hours for the hearing itself. Unemployment hearings usually last one hour or less, but you must arrive early to look at the file, and there is a possibility you will have to wait past your hearing time if the previous case has not finished.

    (continued in Comment below)

    twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

Employment topics

Top tips from attorneys

What others are asking

Questions?
An attorney can help.

Post a question and get free legal advice from attorneys.

Ask a Lawyer

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics