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Can I sue the California EDD for back pay on my unemployment claim after my weekly certification was lost?

San Jose, CA |

I filed for unemployment in February and immediately registered on CalJobs. I received my first cert form in the mail and completed it, sending it back to the EDD at the beginning of March. I then waited three weeks for a response, and since I didn't get another form I became concerned. I tried going into my local EDD center, but they couldn't do anything other than confirm that nothing had been received on their end. It was suggested I try web certifying, which I attempted but was unable to use because of restrictions on EDD's end. Same thing when I tried Tele-Cert. I tried endlessly dialing the English language line for weeks, and finally had to call the Vietnamese line to set up an appointment for a call. My back pay claim was denied because I didn't cert in a timely fashion.

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Attorney answers 1


EDD is not liable or can you show they lost the claim form. There is a risk when you mail something and this is the risk. Also EDD is an arm of the state and thus immune under the 11th amendment for damages in this case.

This is just my opinion and not a comprehensive answer. You assume the risk because this answer may not apply to your situation depending on the facts.



The question is whether or not there is a burden on the EDD to allow sufficient access to services. From my standpoint, it was nearly impossible to reach them in a timely manner because they lack sufficient resources to reach them. All alternative avenues they provide were shut off to me, and their phone line is impossible to reach. I obviously cannot prove they lost the form - that's the absurdity of the system in the first place, that I cannot obtain a replacement form in a reasonable time span nor be made aware as to whether they received it. If the Federal legislation authorizing unemployment insurance mandates standards of access, the EDD would be in violation of federal law in so doing. Furthermore, if this were the case I understand that the individuals responsible would be open to lawsuit personally, so long as state treasury funds weren't used. Also, since the Unemployment Insurance Fund is directly funded by contributions from employers and not the state treasury, it shouldn't be open to 11th Amendment protections. So I think you're wrong.