Misconduct: should I appeal to the board? (claim, record, EDD)

[bsyde82]

The admin judge recently affirmed the initial ruling denying me benefits due to being terminated for misconduct. I'll try to summarize the important facts:

1. I worked at a 3-4 person law firm, with 2 associates, 1 principal, and 1 legal secretary.
2. I was the only full-time attorney - always showed up on time, never took more than 2 days off at a time
3. Never missed any deadlines; imo, performed all of the work asked of me.
4. Throughout my time there, the firm has suffered financially. Always paid me late by at least one pay period. I never complained, thinking I was taking one for the team and believing I would eventually be paid anyways.
5. Lots of conflicts with my boss, who thought there was more work than we actually had. I felt unethical billing countless hours that simply weren't necessary.
6. Boss creates all these policies that he has us sign, but they're never enforced. One such thing is - don't use the internet for personal use.
7. Over my 2.5 years there, I liberally used the internet during down times, as did my other co-workers.
8. On my last day, I was in court all morning. I think my boss was under tremendous financial pressure, so he went through my work history that day, and the day prior, and saw my internet history, which admittedly was full of personal things (nothing inappropriate though)
9. So on this basis, he fires me.
10. At the EDD appeal hearing, he came with all this internet history. Of course, I can't prove that everyone else used the internet too, since I no longer have access to the computers at work.
11. He produced a signed policy I signed when I started in 2013 - hadn't seen it since, and again, it was never enforced.

Maybe that is misconduct, but based on prior cases, it doesn't seem that way. I really believe there was absolutely little work that could've been done, but my boss can always justify it somehow (and being a lawyer, he can talk it up). He never even warned me about internet use. I can provide more details if necessary, but any thoughts on this initially? It's shocking to me because to that point, I felt like I did the most work for him over the past several years.

[Chyvan]

//www.city-data.com/forum/unemp...t-ui-when.html

Why in the world after starting this thread, did you not address the denial BEFORE you went in front of the ALJ. That was the most important part of the process, and you did it without what we think is our invaluable input as to what happens at these hearings.

The problem with your story is that it may be based on what really happened. After that hearing, all that matters is what was proven in that hearing or what the judge found credible because that is just the way things are.

Did you get a copy of the hearing file? One poster on here had a weak case going to the board, but the board ruled that because the reason for the firing changed, she was getting benefits. The point is, to pull this off, you have to have EVERYTHING to so that you can nitpick.

http://www.edd.ca.gov/uibdg/Misconduct_MC_485.htm

Does your decision have the 6 elements proven that are required under this section? If not, that's where I'd start. You should have gotten help. This was winnable.

You weren't warned, but you probably didn't testify about that.

Others did the same same thing, but I bet you didn't bring even one to the hearing to testify to that.

You admitted to using the internet, big no no.

The "internet records" were probably inadmissible because there was no one present to authenticate how they were prepared, and were right up there with self-serving spreadsheets that people come to "Judge Judy" with to the substantiate that a loan existed and what the outstanding balance is.

[bsyde82]

I believe I did state several times during the hearing that there was no warning. This was in my statement to the ALJ as well.

RE: others, there were only 2 other fellow co-workers, and my boss had clearly turned them against me. In fact, at the hearing, it was really awkward because it was clear my former legal assistant was under pressure to testify against me. Nothing I can really do about that, because she REALLY needs to hold onto her job.

In terms of inadmissibility of the internet records, does that matter in an ALJ hearing? The decision explicitly says hearsay is admissible if deemed worthy.

But returning to what I said first, if the record shows that I said I was never warned, will that be enough to help me?

[Chyvan]

Originally Posted by bsyde82

I believe I did state several times during the hearing that there was no warning.

Doesn't matter that you said it. Look to the "findings of fact." If the employer says they did warn you, and you say you weren't, and the ALJ agreed that you were warned, then the employer's version was found more credible, and that becomes the truth as far as any future appeal goes.

Now, if there was testimony out of the employer's mouth that makes for a contradiction, then by all means, point to the relevant sections from the transcript to get that finding of fact changed.

Originally Posted by bsyde82

This was in my statement to the ALJ as well.

You mean that is what you orally testified to at your hearing, or it was in your written REQUEST for an appeal that is not testimony, and means nothing at the hearing and was only of benefit to your employer to harpoon your appeal strategy?

Originally Posted by bsyde82

RE: others, there were only 2 other fellow co-workers, and my boss had clearly turned them against me. In fact, at the hearing, it was really awkward because it was clear my former legal assistant was under pressure to testify against me. Nothing I can really do about that, because she REALLY needs to hold onto her job.

Your employer knew what he was doing because it's very rare that an additional person is dragged into the hearing.

Originally Posted by bsyde82

In terms of inadmissibility of the internet records, does that matter in an ALJ hearing? The decision explicitly says hearsay is admissible if deemed worthy.

It can. Hearsay is allowed, but it doesn't mean that the ALJ gets to build a denial completely upon it. It comes under "lack of substantial and credible evidence." Also, you should have objected at least once to any hearsay because there is case law on these hearings that says, "the claimant had the opportunity to object to the hearsay evidence at the hearing, but they didn't, and now the issue is waived on appeal."

Originally Posted by bsyde82

But returning to what I said first, if the record shows that I said I was never warned, will that be enough to help me?

It could be, but there are 4 elements of the 6 that are usually easy to attack. Don't forget that "materiality" aspect. I've seen board decisions on tardiness reversed because "the employer presented no evidence as to how they were injured," in regards to an employee that had been late 5 minutes.

Think out of the box, and use them all.

A lot of people think that employment attorneys are the ones to have at these hearings, but I think that a criminal defense attorney would do a much better job. Too many attorneys go for the "it's not misconduct," whereas the criminal attorneys would be more likely to make it impossible for the employer to prove that any bad act ever happened.