The employer submitted about 150 pages worth of documentation to why they terminated me and trying to say I was breaking the house rules. If they win the appeal, do I have to give back everything that I have received through EDD up until now? How much do lawyer fees if I want to be represented in this hearing?
Employment / Labor Attorney
If you were fired for a reason other than misconduct, you will be eligible provided all other conditions are met. Misconduct is an intentional act against the interests of the employer. Incompetence or employer dissatisfaction with your work is not misconduct. Breaking rules should not disqualify you from receiving benefits unless you broke the rules on purpose. If you did the best you could and ended up breaking rules anyway, then that should not disqualify you.
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 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.
Generally, as of 2012-2013, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on years of experience, geographic 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
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 / Labor Attorney
If your employer fired you, they will have the burden of proving to an administrative law judge that you committed misconduct. Here is what the EDD says about how misconduct applies for unemployment purposes:
"The definition of misconduct must be considered in the light of the basic purpose of the unemployment insurance program. As expressed in Section 100 of the Unemployment Insurance Code, this basic purpose is that unemployment benefits are for persons involuntarily unemployed through no fault of their own.
. . . 'fault' means intentional action which the person who claims benefits foresees, or which it may be reasonably inferred he must have foreseen, would tend to produce or prolong a period of unemployment and from which a reasonable person in the claimant's circumstances and with the claim- ant's knowledge and understanding, desiring employment and foreseeing such loss of employment, would necessarily refrain."
If the employer is saying you caused your own termination through some intentional act on your part, you must be prepared to address those issues. It sounds as though the employer is intent on contesting your benefits, which means you need to be just as prepared as they are. This will include obtaining a copy of the appeal file before the hearing. Yes, you can retain an attorney to represent you. How much it will cost depends on how much time is likely to spent on fighting this, including reading 150 pages of documentation, if necessary, to prepare for the hearing.
You can represent yourself, if you are not easily intimidated and can reasonably articulate your position. You will have to decide whether you believe you can do this or if you will need an attorney because, yes, if you lose you will have to repay the money you received.
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.
I agree with my colleagues' excellent answers. I would just like to point out that if you lose, you may not be required to repay the benefits collected, if the EDD determines the overpayment was not caused by your fraud and repayment would be a financial hardship. For more information, you can go to the EDD website: