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California EDD denied my claim for unemployment. How much information should I include in my letter of appeal (first level)?

Santa Rosa, CA |

I was working full time for a vet hospital. My first review was good. Within 3 months I was fired. I have been diagnosed with severe depression, recurrent and anxiety disorder before starting this job. I was in an abusive marriage that was on the rocks. I started having anxiety attacks and my performance did suffer. I explained this to my superior to no avail. I was given "memo's" of their concerns. Never termed "warning" and no clear protocol for discipline was ever made clear either verbally or in writing. My marriage became so volatile I had to leave, I notified my boss a day in advance, 2 times in that last week, that I could not come in so I could pack and get out. He told EDD I missed work without permission. Do I have an argument?

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Attorney answers 4

Best Answer
Posted

California law protects workers who are victims of domestic violence in a number of ways so you have a good chance to win your unemployment appeal, even in addition to the general unemployment eligibility requirements. Details about eligibility for unemployment benefits can be found on the California Employment Development Department (EDD) web site: http://www.edd.ca.gov/Unemployment/FAQ_-_Eligibility.htm#Whataretheeligibilityrequirements

Under law, an eligible claimant is entitled to unemployment benefits UNLESS she either (1) was fired for misconduct or (2) quit work without cause. In your case, the issue will be whether you were fired for misconduct (at the bottom of your Notice, it should refer to Unemployment Code section 1256).

Your employer has the burden of proof to show that you engaged in misconduct (an intentional act against the interest of the employer) when you missed work. Escaping from domestic violence is not misconduct and California law even allows an employee to notify the employer after the fact that an absence was necessary due to domestic violence. If the employee needs to attend to legal matters related to domestic violence, Labor Code sections 230(c) et seq. may help. (see link below).

---> In addition, Labor Code 230.1(a)(4) allows an employee who works for an employer with at least 25 employees to take time off from work to move.

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 notified my employer in advance I had to move to escape domestic violence."

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
http://www.edd.ca.gov/Unemployment/

Eligibility requirements
http://www.edd.ca.gov/unemployment/Eligibility.htm

Summaries of the law (Benefit Determination Guide)
http://www.edd.ca.gov/UIBDG/

Appeals
http://www.edd.ca.gov/Unemployment/FAQ_-_Appeals.htm

Precedent Decisions (law the administrative law judges rely on)
http://www.cuiab.ca.gov/precedent_decisions.shtm

Frequently asked questions
http://www.edd.ca.gov/unemployment/FAQs.htm

Filing a claim for unemployment benefits
http://www.edd.ca.gov/unemployment/Filing_a_Claim.htm

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.

(continued in Comment below)

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. ***

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

(continued from Answer above) 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 www.cela.org. 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. Many CELA attorneys represent clients throughout the state. Marilynn Mika Spencer San Diego, CA

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Scroll down to Labor Code 220(c) and 230.1: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=00001-01000&file=200-243

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Typo: Should say 230(c) and 230.1 (not 220)

Asker

Posted

I received a third "memo" and my discharge letter AFTER he terminated me over the phone. He stated I refused to meet with him. I did not, I simply told him I could not in person. I was unable due to situation I was in. I must also mention it was verbal and emotional abuse which led to a suicide attempt 2 years before and a breakdown at the time of termination.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Mr. Mallen is right – it would be best to have an experienced attorney represent you. If you cannot afford an attorney (even to prepare you for the hearing) and you cannot locate a legal services organization to help you, you can prepare yourself with the law. Print out the two Labor Code statutes I referred to above and bring two copies with you to the hearing – one for yourself and one for the administrative law judge. Look at the precedent decisions I linked to above, and search for something helpful. Start with precedent decisions on misconduct, and look at the decisions on the burden of proof, too. hope your situation has improved and that you've received counseling and whatever assistance you need to move forward to a better life.

Posted

Your leaving work was personal in nature and disqualifies you from UI benefits.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

This is not the standard for receiving unemployment benefits in California and Mr. Tan is incorrect. Please see my separate response.

Posted

Under the circumstances, I recommend that you have an experienced lawyer by your side to present your best possible case and help you give your best testimony. EDD Judges are very busy and would probably appreciate having a lawyer present the facts in the best possible light for you.

I hope your outlook improves.

Best regards,

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.

Asker

Posted

If I had any possible way to retain council I would. That is why I use this site. I firmly believe i had a very compelling reason to call in.

David Andrew Mallen

David Andrew Mallen

Posted

I understand. Many employee rights lawyers do volunteer work or work at reduced rates for people in need. Perhaps you could offer to pay a lawyer a reduced rate, on monthly installments, so you can pursue your claim (assuming you have a good EDD claim). Tell them "Attorney David Mallen suggested this approach." Haha. It is worth a try. I try to be an optimist.

Asker

Posted

Thanks!! I will!

Posted

Hello,

You are asking a very good question. You should not include a lot of information in your appeal letter and it should be short and to the point; Something like: "I believe I was wrongly denied benefits because I was not terminated for misconduct and I hereby request an appeal hearing" is enough.
It might well worth it for you to be represented at a hearing or at the very least consult with an attorney before the hearing to make sure that you understand how the process works, how to put your best foot forward and maximize your chances of winning. Since you quit, you will have to show that you had compelling, substantial reasons for quitting, and an attorney should be able to help you present the claim properly.

Thanks,

Arkady Itkin
San Francisco & Sacramento Employment Lawyer
(415) 640-6765 (mobile).

Asker

Posted

I did not resign, I was fired, over the phone on the 2nd day I called in to explain that it was critical that I see my therapist, my M.D, and to remove my belongings from the home. I am and was being treated for severe depression and was in an abusive marriage that I needed to get away from. Thank you for all your thoughts.

Asker

Posted

I did not resign, I was fired, over the phone on the 2nd day I called in to explain that it was critical that I see my therapist, my M.D, and to remove my belongings from the home. I am and was being treated for severe depression and was in an abusive marriage that I needed to get away from. Thank you for all your thoughts.

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