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I was recently terminated and denied my unemployment benefits. my employer claimed misconduct and i believe they are wrong

Los Angeles, CA |

i was terminated from a salaried position for "not adhering to the responsibilities required of the postition as discussed with ownership and managment and listed in my job summar description" i was denied my unemployment benefits due to misconduct. i believe there was no misconduct and am going to appeal. i have emailed my employer 3 times asking for access to my files, and for a valid reason for my termination, with no response from them at all. i wanted to know what i should say in my appeal and what my rights are. any info you may have will help. thanks!!!

Attorney Answers 4

  1. With respect to reviewing your personnel files the following provisions apply to you as a former employee.

    California law requires that employers allow employees and former employees access to their personnel files and records that relate to the employee’s performance or to any grievance concerning the employee. (Labor Code Section 1198.5) Inspections must be allowed at reasonable times and intervals. To facilitate the inspection, employers must do one of the following: (1) keep a copy of each employee’s personnel records at the place where the employee reports to work, (2) make the personnel records available at the place where the employee reports to work within a reasonable amount of time following the employee’s request, or (3) permit the employee to inspect the records at the location where they are stored with no loss of compensation to the employee.

    The right to inspect personnel files and records does not apply to records relating to the investigation of a possible criminal offense, letters of reference, or ratings, reports, or records that (a) were obtained prior to the employee’s employment, (b) were prepared by identifiable examination committee members, or (c) were obtained in connection with a promotional exam.

    Employers are required to give an employee or job applicant, upon request, a copy of any instrument that the employee or applicant has signed relating to the obtaining or holding of employment. (Labor Code Section 432)

    Employers are required to permit current and former employees to inspect or copy payroll records pertaining to that current or former employee. Labor Code Section 226(b) Effective January 1, 2003, an employer who receives a written or oral request from a current or former employee to inspect or copy his or her payroll records shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A failure by an employer to permit a current or former employee to inspect or copy his or her payroll records within the aforementioned 21 calendar day period entitles the current or former employee to recover a penalty from the employer in a civil action before a court of competent jurisdiction. (Labor Code Section 226, subdivisions (c) and (f))

  2. Write them a certified letter, demanding they produce your personnel file, pursuant to California Labor Code, 1198.5. Meanwhile, after you submit your appeal, ask for a copy of the entire appeals file from the appeals office (not the EDD office). Whatever they have said to the EDD and any documents they may have submitted would be in the appeals file.

    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.

  3. You will need to present evidence on appeal that you were not terminated for misconduct. That concept is somewhat complex. Please see the following webpages to assist you in understanding how that concept will be applied by the EDD on appeal:

    You are entitled to review your employment file upon reasonable notice to the employer. Make a written demand. If the employer refuses to allow such review, make sure you provide your written demand to the appeal hearing officer and let him or her know about their failure to allow you to prepare.

    You are also entitled, upon demand, to a copy of all your payroll records, and a copy of any document signed by you that is in your file. You should include a demand for those documents at the same time you request a copy and a review of the entire employment file.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

  4. In addition to the good strategic advice offered by my colleagues, I would suggest that you introduce the emails as evidence in the hearing before the Administrative Law Judge to argue that the employer's explanation for firing you is a "moving target" that is not credible.

    It sounds to me, possibly, that the employer may have given you a glorified job description that inflated the importance of your job duties in order to avoid paying you overtime. The description that was given to the EDD intake officer is corporate, conclusory gobbledygook that sounds nice but signifies nothing. What responsibilities? What discussions? What job description? Without facts, the employer's conclusion means nothing.

    You would be well-advised to consult with an attorney to understand your unemployment appeal rights as well as any claims for wages that you may have. Try or

    Some lawyers charge by the hour to represent you at the unemployment appeal. Others will do it for a flat rate. Since you don't know what exactly will be alleged against you at the hearing, iIt sounds to me that you may want to consider hiring a lawyer with trial experience who knows how to cross-examine a hostile witness right there on the spot.

    David Mallen

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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