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Unemployment denied when mistakenly stated not available to accept full-time work due to child care. Will I win appeal?

Gilroy, CA |

I stated that in my initial application and first claim form by mistake, what should I do? I have proof of applying for full-time positions. What are my chances of winning? Anyone with similar issues? Help, thanks!

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Attorney answers 3


You'd be well advised to have an attorney experienced with these matters with you. I've handled a number of these, and its going to come down how convincing you are in demonstrating that you are available. You need to show 1) you were working full time 2) that your day care needs are satisfied - bring in the sitter or at a minimum an affidavit 3) that you are applying for full time work, and 4) proof that you need to work full time (tax returns, bills etc.)

If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email -



If it's a simple misunderstanding on your part, then you should be able to clarify it during your appeal hearing. Just be sure that you are ready to explain why you incorrectly filled out your application, and if there were any changes in your life related to the child care situation, be ready to address that as well, whether you go to the hearing on your own or whether you are represented.

Thank you.

Arkady Itkin
San Jose Employment Lawyer
(415) 640-6765 (mobile)


You can win if you can convince the administrative law judge that you are available for full-time work, assuming the reason you were denied unemployment was because you wrote you were not available. Just explain why you made the error and be sure to bring proof that you do have child care/ For example, bring a witness who will testify that he or she is your full-time babysitter (this witness can appear by phone) or a sworn declaration from that person stating the same, or proof you have enrolled your child in a day care program, or whatever you have to show your original response was inaccurate. It will also help to explain why you made the error; perhaps you did not know you had the child care available until after you filled out the form? Also bring your proof of applying for full-time work.

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.

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 made a mistake on the application. I do have child are available."

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

Eligibility requirements

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 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. *** 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. ***

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