My former employer has appealed my UI benefits! Need help! (file, receive)

[importrider2k4]

Hello all, I'm new to this board and wanted to see what kind of input I can receive regarding my appeal. I'm from southern California and was recently approved by EDD to receive unemployment insurance benefits. About a month has passed, I received a letter from EDD yesterday stating that my former employer has appealed EDD's decision to award me unemployment benefits.

I worked for a private security company contracted for security services with Boeing. At the end of September, I was terminated due to a disagreement with a supervisor. The incident in question began, when my shift had ended and I was preparing to disarm my firearm in the assigned clearing area located inside the supervisor's office. On that specific day, I walked into the supervisor's office once the other officer that had previously cleared and stowed his weapon had exited the office. This is what began the argument, once inside the supervisor told me that I was not to come into the office unless I was told to do so. At first, I thought the supervisor was joking around seeing as I had previously had a seemingly good relationship between me and him at work. I soon realized he was not joking around and told me to go outside and to ask to come back into the office. I proceeded to tell him that this was the first time he had ever told me to do so and I have been doing the same routine day in & day out with him or other supervisors since working there. At this point in time, he proceeded to get in my face and told me to get out and ask to come back in. I told him I just wanted disarm and leave because I had an hour long drive back to my home. After, I squeezed by him, by putting my hand on his waist in order to get through between him and the wall, just like a regular bystander would do in order to get through a confined area between two people or a person and another obstruction. I proceeded to head to the box where the clearing barrel and gun lockers are located inside the supervisor's office. Once inside, me and him continued jawing at each other. Keeping in mind that there was a camera filming us inside the box. While in the box, I went through my normal routine of clearing my weapon and stowing it. While in there, he was once again trying to intimidate me at that point I got in his face, but I did not do anything further. Once I had finished stowing my weapon, I left. The next day, they placed me on suspension pending an investigation. It wasn't much of an investigation, seeing as when I reported to the district office they had my last paycheck and disciplinary form typed out stating "gross abuse of an employee (physical verbal, or otherwise to include fighting) and gross insubordination or misconduct on company/client premises." The form also stated that there was a physical altercation, which there never was. They declared the act of me squeezing through him and the wall by placing my hand in his waist as physical altercation. The district manager also proceeded to show me the video of us in the box. The video did not have any audio and it only showed me and him jawing at each other and at one point when I got in his face. A little history, I had never received any written warning for the incident, only being terminated.

After receiving a month and a half of benefits, I received a letter from EDD stating that my former employer had appealed my unemployment benefits. There was an additional letter attached with the other notice, which was a copy of a letter sent to my former employer titled, "NOTICE OF DETERMINITATION/RULING." It reads as follows:



"Concerning the unemployment insurance claim of (my name): you provided info regarding the eligibility of the claimant named above under california unemployment insurance code section 1256. We have considered all of the available facts and reached the conclusion stated below. Please do not resubmit the same eligibility info in reply to any future claim notices. This decision is final unless modified, reconsidered, or appealed. You discharged the claimant for allegedly threatening you or his/her supervisor. After considering the available information, the department finds the reasons for discharge do not meet the definition of misconduct connected with the work. Your reserve account will be subject to charges.


Please help! What do you think? Do I have a valid argument? What are the chances of me being denied unemployment after this hearing? Is this something that employers routinely do with employees who were fired in the hopes they will give up or not show up to the hearing?

[Chyvan]

Employers do it because you being on UI costs them money. They might hope you don't show up, but claimants hope for the same thing. It really just comes down to money though.

What did you already admit to with the deputy? Did you read the information that the employer has already submitted? Did the supervisor that you had this incident write it or was it 2nd hand from an HR rep that handled your termination?

It all sort of matters because what you've already told EDD, you have to live with because it's documented if you wrote it yourself. If it's just from a conversation that you had with EDD, then there is the potential to back pedal because the deputy's don't always document things as accurately as they should.

The employer is probably just going to heap on some more information and adjectives to make things sound worse than their first attempt. If while watching the video, you can't see any touching, please don't admit to it or bring it to anyone's attention. Having a disagreement with a supervisor isn't necessarily misconduct. To me, the guy was being petty, but still, I think if you had it to do over again, you'd have done things differently.

Be sure to view all information before the hearing. If they don't bring the video, that helps. If they don't show, even better. Don't discount this. It happens. If the HR rep comes with hearsay evidence of the events, that's great too. If the supervisor doesn't show, that's practically as good as the employer not showing at all. Just remember that you don't have to prove it did NOT happen, but if you admit to anything you have to live with it.

The employer has to prove what they say you did, and it has to be misconduct. Lot's of people do bordlerline things that could either way, but the ones that lose, seem to be the kind that talk too much. You really want to be mellow at the hearing. You want to appear to be the kind of person that's not big on confrontation. If the supervisor is there and gets testy, it makes him look he was probably the instigator that day.

You already got benefits from a deputy, and more often than not, they make much harsher decisions than the ALJs, so I think you have a fine chance that your decision will stay exactly as it is.

[importrider2k4]

Thank you for replying. Further information, I have not received the appeal hearing date yet. I'm assuming when you mean deputy, you are referring to the person I spoke to EDD for my phone interview. To this date, that is the only person I have explained the incident to and it was through the phone. I have not read the information that the employer has already submitted. I'm assuming that specific information will be available, after I receive an appeal hearing date, right? Knowing how everything operated at that facility, I'm assuming that supervisor wrote down a report of the incident. I forgot to state there was a witness there, when the incident occurred. The other witness there was another supervisor and he corroborated his testimony. I saw the video when I was terminated and there is no touching. I am assuming they will bring the video, seeing as that is strongest piece of evidence that they have, but like I previously said there is no touching in the video just arguing back and forth up until the point when I got in his face and left. In your opinion, should I hire an attorney?

[Chyvan]

The burden isn't on you, and they already had a shot to get you denied with the same deputy that granted you benefits and they already lost, so if you want an attorney that's up to you, but personally, I wouldn't pay the money unless you can get lucky enough to get a legal aid one for free.

Just because there is a supervisor and a witness, doesn't mean they'll show for the hearing. Just because they wrote a statement doesn't mean anything either. If you find statements in the hearing packet, at the hearing, the ALJ would go through the evidence and ask if anyone objects to its admission. If anyone that submitted something in writing is not at the hearing, you can object to the admission of any written statements because you can't crossexamine a piece of paper. 99% of ALJs will exclude the statements, and poof, the evidence is gone, and it's like the supervisor and witness said nothing.

Also, if you have a telephone hearing, the likelihood of the video being used goes down because it's not practical. Since you saw the video, you shouldn't be afraid of an in-person hearing. The video doesn't show anything physical. Also with in-person hearings, there's a much higher probability that the people won't show, and that's the main reason to want an in-person hearing. It's too easy for the employer to get people on to a conference call, but can't just make people available for an in-person hearing because that costs money in terms of employee time, and they might even have to bring in someone on overtime to substitute while all these people are there.

[importrider2k4]

I probably will not hire an attorney considering the cost. If given the opportunity, I will request an in-person hearing. My only fear with an in-person hearing is that the supervisor and witness will show up. After all, two corroborating testimonies are stronger than one, but I rather take my chances with that instead of a telephone hearing. Once I receive the appeal hearing date, what should be my next course of action? Should I prepare a written statement? Should I pay for someone to help me prepare it? Can I request the appeal file?

[Chyvan]

Written statements mean nothing. I'm not sure why people think this. Oral testimony is what the system uses. From body language, demeanor, and tone of voice, that is what judges use to try to assess credibility. Also, as the person that was discharged, you don't have to prove anything. That's the employer's job, and I get the feeling that you don't understand that.

Even if the employer shows up with a stack of warnings of every bad act you've ever done while working there, that is not how UI works. It's about what caused you to be fired. As in very recent events. Also, an employer can prove that you did something bad, but that doesn't mean that every bad act is misconduct. Misconduct has a legal definition in UI matters, and it's more than what happened here.

The way I see your telling, you think you did something wrong, and you can't act guilty. What you did was try to go home at the end of your shift, and someone impeded you from doing that. You have every right to ask someone to let you pass and try to get around them when you're on your own time. That's the picture you paint.

The example to look at is that an employer can walk in with a ton of evidence and witnesses that tell how an employee was a poor performer, and the employee can try to prove that they weren't. It's a waste of time for a claimant to bother disputing the employer's testimony and evidence because poor performance is NOT misconduct. It makes no difference if the employee was a poor performer or not. Same with you. Doesn't matter if the supervisor shows up, or the witness is there, or that there is video. You were done with work, you've followed your quitting-time routine a zillion times, and this time the guy was interferring with you going home. I'm not so sure that can remotely be misconduct. I just don't like the touching part and you don't have to bring it up. You might not have to say anything, so don't unless you think that true misconduct is being presented.

You are allowed to view what is in the file prior to the hearing, or it will all get mailed to you if it's a telephone hearing. They can only show you what is in the file at the time you ask, and things can be added afterwards. The instructions will tell you when the submission deadline is so at least you'll know when the file is complete. So you don't want to go the day you get the notice, but if you go three days before the hearing, you'll have a pretty good idea of everything that's going to make it to the hearing.

[importrider2k4]

Thanks for clarifying. It sounds like my former employer has their work cut out for them trying to prove misconduct under UI matters. I have a better understanding of what to expect or at least what to state or not state at my hearing. I will definitely be viewing the appeal file prior to the hearing. I will keep you posted. Thanks again.

[SamirD]

Forget the UI, you were harrassed in the workplace in the first place. Unless it is part of your job description to be yelled at, I don't think you did anything wrong except maybe retailiate. I would have phoned the police the second you were getting squeezed. If he was armed, that would be even more grounds for being concerned about your own safety.

[importrider2k4]

Perhaps, but I don't think the intention was there. I don't think local law enforcement would have got involved, since there was no assault, even though we both were armed.

[Bane1976]

First of all don't put anything in writing. Rule 1. If you put something in writing and e-mail, submit or mail it, you cannot get it back.