Been working at County job for 7 years;. A new management team brought in last year and all office procedures have been overhauled. I am having problems adjusting and have been making errors and have told supervisors during several meetings that I am working very hard to improve. My performance review on 4/11/14 was poor and supervisor told me that effective immediately he will begin disciplinary action and reduce my salary by 5% including being put back on probation for 6 months and then termination.or I can resign. I feel that disciplinary action is so that they can dispute future unemployment claim when they could just let me go. He has stated that in his opinion my poor performance is willful and my response was that it is untrue. What can I do if they deny me unemployment?
Employment / Labor Attorney
Ms. Pitt and Mr. Kirschbaum are correct. Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if ALL of the following is true: he or she is (1) unemployed due to no fault of his or her own; (2) physically able to work; (3) actively seeking work; (4) ready to accept work immediately; (5) has received enough wages during the base period to establish a claim; and (6) meets eligibility requirements each week benefits are claimed. An overview of these requirements can be found on the web site of the California Employment Development Department (EDD) http://www.edd.ca.gov/Unemployment/Eligibility.htm.
If you are doing your best but the employer is not satisfied with your work and fires you, you are unemployed through no fault of your own, and eligible for unemployment benefits. Only two things prevent a claimant from getting benefits: being fired for misconduct (intentional act against the interest of the employer) or quitting without cause. Quitting to avoid being fired is not good cause, according to the Employment Development Department (EDD).
If EDD denies your claim for benefits, you will get a Notice of Determination stating your claim was denied. It will include 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 saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. For example: I did my best but boss wasn’t satisfied.
In a few weeks, you will receive notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible. You should also know the law the administrative law judge will consider. You can get a lot of helpful information on the EDD website.
Summaries of the law (Benefit Determination Guide)
Precedent Decisions (law the administrative law judges rely on)
Frequently asked questions
Filing a claim for unemployment benefits
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. For training, expect the attorney to need approximately three hours. For hearing representation, 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 for the previous case to finish.
Generally, as of 2013, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on experience, location, attorney availability, attorney interest in the case, complexity of the matter, and more. To find a plaintiffs employment attorney in California, visit the California Employment Lawyers Association (CELA) at www.cela.org. CELA is the largest and most influential bar association in the state for attorneys representing working people. You can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.
Marilynn Mika Spencer
San Diego, CA
@MikaSpencer * * * PLEASE READ: 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 must not be taken as legal advice. Legal advice must pertain to specific, detailed facts which are impossible to gather on a public web site like Avvo. * * * No attorney-client relationship is created based on this information exchange. * * *
Employment / Labor Attorney
It is very difficult for an employer to convince the EDD you should not receive unemployment benefits because of poor performance. Your supervisor's opinion that your poor performance is willful will have to be supported by facts.
If you quit, you will be denied benefits. For your part, try to show you are doing everything possible a reasonable person would do, who is desirous of keeping their job. If that is not good enough for this supervisor, so be it. If they discharge you and contest your unemployment benefits, you have a right to a hearing. At the hearing, the employer will have the burden of proving you were trying to get yourself fired. An administrative law judge will decide if that is true based on the testimony and evidence presented at the hearing. For that reason, start documenting your communications and work issues now.
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.
Employment / Labor Attorney
They cannot deny you unemployment for performance problems. Denial of unemployment is for gross misconduct such as stealing from the cash drawer, reporting hours you did not work and job abandonment. Just start looking for a new job while you have one. It will be harder if you wait to look for a job after you have been terminated. good luck.