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What to do to prepare and win an Unemployement Appeal Hearing

Moreno Valley, CA |

I have been with the same company for 181/2 years and in my present department 15 years. A new manage was hired and and from the very beginning set her sites on getting rid of me. I am the lead of the department and have won various customer service awards and trained 90% of the other employees even before I was the lead. The manager has proceeded to use a few of my fellow co-workers to find items to write me up for disciplanary actions. At one point when these employees relized the manager was trying to get me fired they informed my manager they would no longer lie for her. Two individuals left the department in fear of retaliation. One employee told me she has documentation of the mangers plan to get rid of me. Now the company is trying to deny me unemployment what do I do at the appeal?

Attorney Answers 3


I'm sorry this happened to you, and I hope you have consulted with an attorney regarding your termination. You were there for such a long time that you owe it to yourself to make sure there was nothing legally inappropriate about your termination, such as age discrimination.

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 appeals 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. Examples:

“The company is wrong when it says I didn’t call in advance to report my absence. I called in and left a message on my boss’ answering machine at 7:38 a.m. saying I was in the emergency room.”

“I did not voluntarily quit. My boss yelled at me in front of everyone and I was embarrassed, so I ran to the restroom until I calmed down. When I came back ten minutes later, the boss said I had walked off the job.”

“I did the best I could but the company was not satisfied. My unsatisfactory performance was not intentional. I wanted to keep my job.”

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 April 2012, 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.

Marilynn Mika Spencer
San Diego, CA

*** 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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I am sorry about your difficult situation. An employment lawyer would need to get more detailed information in order to give you specific advice, and you should consider consulting in person with an employment lawyer. However, I can share with you that, in general, you should be prepared to explain to the appeal officer that you were a conscientious employee who made a good-faith effort to comply with the employer's policies and expectations. If you were confused about your employer's expectations, then also explain that to the appeal officer. If you feel that you employer did not consistently enforce its policies and expectations, then also explain that to the appeal officer. Above all else, be absolutely truthful. Good luck.

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It sounds as though the employer is claiming it fired you for misconduct. Generally, misconduct is viewed as a breach of a material duty the employee owes to the employer which tends to cause damage or harm to the employer. The burden of proof is on the employer to prove the employee committed misconduct.

Your first order of business is to ask the appeals office for a copy of the entire file, which you can either pick up or have mailed to you. They may tell you to come in 15 minutes before the scheduled hearing to review the file. That is not sufficient time for you to prepare your case based on the notes and documents in the file.

If you have witnesses who will voluntarily come with you, ask them to do so. If they feel more comfortable being subpoenaed, you will need to ask a judge assigned to your appeal's office to issue a subpoena, if you can provide a showing of materiality. You will need for someone to arrange to serve the subpoena on your witnesses.

Make 3 copies of all documents you plan to use at the hearing. Showing your exemplary work history prior to the manager came on, may be evidence accepted by the ALJ. Prepare an outline of questions and facts you wish to present, as well as questions you want to ask the employer. Often, the employer's representative may only have one person appear who can only provide hearsay evidence (which is admissible), so make sure you take advantage of the fact that direct evidence present by you is not contradicted by anyone with personal knowledge.

Finally, go to the EDD's Benefits Determination Guide and read the material at that site, so you are familiar with how the EDD views issues similar to yours. You can find it at .

Good luck.

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.

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