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Is it virtually impossible to appeal EDD benefits successfully, when terminated from an Indian Casino for "Misconduct?"

Sacramento, CA |

Terminated from "Indian Casino" on 10/31/12, for "Misconduct." Denied Benefits from CA EDD under Title 22, Sections 1256 & 1260A EDD. Once termed "Misconduct" by an employer, it appears tough to prove otherwise. I just filed my 1st appeal with EDD and am awaiting date. The casino stated that I was rude to a guest, 3rd incidence within 12 month period; once in prior 3 years. The guest was highly belittling to myself however, the security tape shows body language i.e., facial expressions which they deemed as inappropriate; I said nothing verbally that could be construed as derogatory, racial, or otherwise to the guest. I just received my annual employee review from the casino 10/22/2012, stating that I was "friendly and outgoing and an asset to the casino."...Am I wasting my time here?

Attorney Answers 3

Posted

Not wasting your time. The burden is on the employer to prove serious and willful misconduct at work.

You may get a sympathetic hearing judge who understands that it is hard to give service with a smile when you are provoked in a hostile manner.

Best regards,

David

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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Posted

File the appeal and go to the hearing prepared to present your past reviews and your facts. EDD does not always get it right the first time.

Good luck

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Posted

Once you get your hearing date, attend the hearing and make your best effort to present all of your evidence and explanation of your circumstances. The ALJ may or may not find that the evidence rises to the level of a serious or willful misconduct disqualifying you from benefits. The State of California EDD also has some helpful information online; you might want to review all that for preparation prior to the hearing - http://www.edd.ca.gov/Unemployment/FAQ_-_Eligibility.htm. If it is economically feasible, you might also wish to seek confidential consultation from an employment attorney in your area. Keep in mind that details posted on this site are not confidential and can be accessed by anyone, including your employer. Good luck!

Nothing in this response is intended as a legal consultation or advice on your particular case, and is provided only as a general statement of information, and only with respect to California law. No attorney-client relationship is created and no contract for legal services is formed as a result of this posting or other postings before or after this posting. Various limitation periods, deadlines and cut-offs also may apply. You should therefore seek private consultation from an attorney regarding the merits of your case and the deadlines involved in your matter. Since this is a public forum, this posting is not confidential.

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