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What type of attorney can cover this? What are the penalties for an employer using this as a retaliatory action?

San Diego, CA |

I live in California, and I was terminated. As expected I received my Cobra paperwork and it stated I was eligible. Approximately four days later before I submitted any paperwork I received a letter, form a third party administration, stating I was not eligible due to Gross Misconduct. I called the administrator and they told me some one removed my qualifying event, deleted, and placed a new event in stating gross misconduct. I was certainly not terminated for gross misconduct, and I’m attempting to find someone to appeal to. The administrator informed me there is no appeals process available to me within the administrator’s policy, but to call the National Labor board.

*** Apr,08 '13*** Thank you all for the quick reply’s. I took your advice and got an attorney, one call and a one meeting later everything was taken care of. No less than four days, and with a very favorable outcome. I can't go further into detail, but I greatly appreciate the assistance.

Attorney Answers 3


  1. Best answer

    The U.S. Department of Labor administers COBRA and it has a fraud unit. However, even if you can get the DOL to pursue an individual issue like this, it will take forever. You will be better off retaining your own attorney. An attorney may be able to straighten this out and get the company to "correct" its records.

    If you have any documentation that pertains to your termination, hang on to it. Did you file for unemployment benefits? If so, did the employer contest your claim, stating you were fired for misconduct?

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

    Search for an attorney who has experience with COBRA – not all employment attorneys do – and who also has experience in federal court, which is the venue for a COBRA action.

    I hope you can resolve your situation and wish you the best.

    Marilynn Mika Spencer
    San Diego

    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. ***


  2. You would need an employment/ Labor law attorney. You can challenge an action with the department of labor.

    This is not a comprehensive answer and it is impossible to provide a meaningful response without a consultation. Call us for more information. 619.797.5456 www.mataelelaw.com


  3. You definitely should contact an attorney asap!

    You can try to fight this on your own through the Labor Commissioner's office and EDD may be of help however, if they have manipulated and changed your employment records you need an attorney who can address this on your behalf and seek compensation for you.

    This is my opinion and should not be construed as legal advise for your specific case as there are many more facts which you have not provided.

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