EDD slowly getting back to you? You are not alone....

A few of my clients were complaining to me about how slow it is for someone to get back to them. They've even sent a few emails with no response. Apparently, they are not alone. This article explains: "On Nov. 6, an Assembly committee held a hearing into the EDD problems. Several lawmakers said they'd heard numerous complaints from constituents, and some estimated nearly 150,000 claims had been delayed for weeks because of the computer system change." The new "system" has caused a great cloud of confusion and delays. It is frustrating! People are complaining to be waiting for months or even a year. Something that is set up as an "emergency fund" for people who were recently laid off should really act like an emergency fund. 

What an attorney (me) does for EDD (unemployment insurance) appeals....

Friends and colleagues ask me why an attorney (aka, me) needs to be involved in EDD (unemployment insurance) hearings. Can't people do it themselves? Yes, but....

In cases where the employer appeals the case, it is a little easier, but not always.

But in cases where the employee is the one appealing, the burden is on the employee to put on his/her case.

I really only get involved when there is a complicated issue at an appeal. Most of the time the time I help people file an appeal when their claim was outright denied. This is very common, since the claimant's first appeal with the entire EDD-entity is a short phone interview. It seems to me that most of the time, the first interview is where the person's story got lost. It almost seems logical to me that this first interview is where people should have a lawyer help them.

I have been successful helping people at their appeals hearing mostly because I help claimants put together their case. I figure out what is really at issue, and what the judge will focus his/her energy on in the short amount of time allocated to the hearing. Most of the times, when someone gets let go, they get really upset and emotional. This is understandable. But, this often makes the person focus on the wrong thing when they go to their EDD hearing. I  help clients bring their side of the story. I go through many phone interviews and fully understand what happened and what issues will come up at the hearing (and let them know not to worry, something they were embarrassed about is not going to come up). Sometimes I find a key evidence that the claimant didn't know was relevant.

Unemployment insurance codes and precedents (previous decisions) are a little quirky. Even seasoned attorneys in employment law don't necessarily understand the nuances of EDD. Sometimes a case can win in EDD but not as an employment lawsuit. I have talked to a few clients who went through a couple of attorneys who all told them they don't have a "case". Actually, they probably don't have an employment law case, but that doesn't mean they don't have a case for unemployment insurance.

Usually the claimant also has other underlying employment related issues, and getting unemployment insurance is my first step in helping them. Lawsuits can take a year, if not years, and labor board complaints can take a year or more to set a hearing. I usually recommend (and assist with) EDD hearings, then I help with other employment issues such as wrongful termination, breach of contract, discrimination, harassment, unpaid wages, misclassification of independent contractor, etc., all of which take much longer to resolve.

I believe this niche can really help people. Time is very rough for people who have just been fired or laid off or forced to quit. As an employment lawyer, my job is extremely emotional sometimes because I have to explain to them the reality of at-will employment. But, I explain that unemployment insurance is there to help people in this situation.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

Common theme: Misconduct with EDD (Unemployment Insurance)

This probably happened to someone you knew at one point or another.

You get let go.

You apply for unemployment. Maybe things went smoothly at first since you got your unemployment checks for the first few weeks. Then all of a sudden you get a letter in the mail. You former employer is claiming “misconduct” and why you shouldn’t be eligible for the unemployment checks that you are now depending on to pay your rent and bills. They even set in a few "write-ups" to EDD about you to prove how bad an employee you were. Perhaps you never even seen one or two of these write-ups until now. Words like “insubordination” suddenly shows up. 

Suddenly you feel like a criminal! Someone is accusing you of misconduct!

I get a lot of callers with this same problem. For most of them I can say that based on what they’re telling me, it doesn’t seem like “misconduct” at the EDD level. Then we have to take it to appeal and fight what the employer accused him or her of. Most people are angry or at least very upset when this happens.

First, I need to clarify that California is an at-will employment state. This means that your job is presumed to be terminable “at will” by either party. An employment, having no specified term, may be terminated at the will of either party on notice to the other. In general, your employer can let you go for any reason, as long as it is not an illegal reason (but that is the subject of another long blog yet to come). What I am explaining in this blog is whether the reason you are terminated qualifies or disqualifies you for unemployment insurance/EDD. This blog does not discuss wrongful termination or California employment law.

Ok, so a big bummer is that your employer can terminate you for any reason. There doesn't even need to be a reason. So, it is my belief that unemployment insurance is to help people in this situation.

I help clients with their EDD appeal hearing. Either they had their appeals hearing set right away, or I have to help them ask for a hearing so their case can be heard. As a caveat, I only assist with appeals and hearings, I don’t handle administration with EDD such as filing claim forms.

One very repetitive theme for EDD hearings is “misconduct”. Many employees get charged with Unemployment Insurance Code 1256, which is: An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work. So at the appeal hearing, the issue is whether there was misconduct that rose to the level to deny EDD benefits. To me, that is a very hard threshold to meet. 

Rules within EDD appeals can get very complicated. “Misconduct” has many different subcategories such as aiding competitor, falsification of work application, cash shortage, improperly channeled complaint, disobeying orders, exceeding authority, use of drugs, damage to equipment, not meeting quality or quantity of work, neglecting duty on the job, poor relations with customers or coworkers, etc, etc etc. Each of these subsections also has it’s own sub-subsections, and the rules within each subsection or sub-subsection can be very confusing.

There is a huge list of reasons an employer can claim “misconduct” for EDD purposes, but each of those reasons have to be very specifically met. And that is usually what we are fighting over at the EDD hearing in front of a judge. The employer will argue that something constitutes misconduct for EDD purposes, and I will argue that it does not amount to misconduct.

Let’s take “quality of work” as example (which is a popular choice). An employer can simply say: we don’t like the employee’s work product, it’s not up to par with our standards. An employer may use this as a reason to fight the employee’s unemployment claim and argue “misconduct”. They may even write a few post-termination "write-ups" claiming that employee was insubordinate or that on xyz date they couldn't find employee at their post. These post-termination write-ups are very suspect with me. 

Under Title 22, Section 1256-38(b)(1): “Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct.” The explanation goes on to say that if the employee did poor work because of inability to do better, it is not misconduct. This means that if the employee only weighed 140 pounds, and was ordered to stack bags of concrete weighing 250 pounds each, the employee’s inability to do the job is not considered misconduct. Employee may also be unable to do the work as a result of physical, mental, or emotional problems not within employee’s control.

In a precedent decision by EDD, it was found that merely being inept to do the job is not misconduct.

Also, if the employee had a vision issue that caused him or her to not be able to perform their job, but did not consult an optometrist or refuse to wear corrective lenses, it is considered misconduct because the employee had the power to control the inefficiency.

And one more thing to consider is, did the employee have the ability to do better? If the employee was able to do better, and then all of a sudden the work performance deteriorated, with no explanation for the deterioration, there is misconduct. So, you cannot be the star employee for 3 months, and all of a sudden start to have performance problems. Usually, there needs to be some sort of warning from the employer before they can establish misconduct. But, an isolated instance of mistake by the employee does not count as misconduct.

Just to make it more confusing, this doesn’t mean you can simply start slacking and still get unemployment insurance payment. EDD rules that it IS misconduct if the employee willfully fail to perform to the best of his or her abilities. If the employee does nothing to improve his or her performance, or if the sub-par performance is entirely within his or her control, that is still misconduct. If the employee knowingly and willfully failed to perform to the best of his or her ability, it is considered misconduct. So, if you know you can do better (and there is documented performance reviews and awards to prove you did better), and you simply slacked off, you probably won’t win your case.

Every case is different, and not all rules will fit perfectly with your case. Some cases may have multiple reasons and theories. I can’t go into all the different rules and nuances within this blog here, but hopefully I shed some light as to this complicated issue.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

California wage and labor laws taken seriously...

I have been following California employment law lately. If you are an employer in California, you need to pay close attention to employment law and labor codes. Things like not paying wages or not paying overtime are serious. First, the employees can take you to court themselves. The employees can also take you to the Labor Board. If the violations are serious enough, the Labor Commissioner may get involved and initiate its own investigation and case. Also, California has the Private Attorney General Act (PAGA), which allows private attorneys to prosecute employers on behalf of the Labor Commissioner. The employee's private attorney can not only pursue the employee's claims but pursue claims on behalf of other employees --- which means collect all of those wages and penalties for other employees who didn't hire an attorney. The awards and penalties are then split among the employees and the Labor Commissioner. And finally, if the violations are serious enough to be criminal, the case can be forwarded to the District Attorney.

Some recent articles...

Employer got cited by Labor Commissioner to pay >$100k in overtime wages, plus penalties for failing to pay overtime, plus $300k for issuing improper itemized/ deduction statements. Apparently, the employer (garment maker in LA) pays its workers by the number of pieces they make. Even if paying by the piece, the itemized statements must show the number of pieces made plus the total number of hours worked. It seems that the employer violated the law by not providing proper pay stub information and used piece rate to go around the overtime laws, which is very highly frowned upon by the Dept of Labor.
http://www.marketwatch.com/story/california-labor-commissioner-fines-garment-contractor-for-wage-theft-2013-04-11

This one is a little more serious and involves more than just the Labor Commissioner. The case was serious enough to get forwarded to the DA. The 2 defendants are actually charged with criminal FELONY, with counts varying from worker's comp fraud, payroll tax evasion, sales tax evasion, and grand theft of labor. This shows that not paying workers can be considered theft, which is a crime.
http://sdgln.com/news/2013/04/09/college-area-restaurant-charged-not-paying-employees

Business owner faces criminal charges for circumventing worker's comp insurance laws. Business owner didn't carry worker's comp insurance as required by law. He didn't learn his lesson the first time around. When he was first charged with criminal violations, he provided evidence of insurance. Department of Labor was not happy to find out that he canceled the insurance a month after that, so now he faces criminal charges again.
http://www.lawyersandsettlements.com/articles/california_labor_law/california-labor-law-lawsuit-43-18651.html#.UXYG5ytAS9Q

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

What to do when your employer appeals your EDD unemployment claim in California....

Recently, I helped a client do some work for EDD (unemployment) and another claim for unpaid wages. Interestingly, both processes could be done without a lawyer (you do not need to hire a lawyer to appear for you). But, the information and paperwork involved was complicated even for me to figure out, so it might be good to hire a lawyer to help you with preparing your case.

If you applied for EDD recently, and your employer is appealing your claim, don't panic yet. EDD will set an appeal hearing, where both sides will present their case. Hearings are set pretty fast. In the meantime you should put in some work to prepare your case. When EDD sends you the notice of appeal, they will send you the information on what it is the employer is appealing. This will include the code sections under Unemployment Insurance. Once you have those, look up those codes (EDD website should have this, or do a google search for that code). At the hearing, the judge will mainly be concerned over the issue in the code. So, don't spend too much time gathering details about unpaid meal breaks, when the issue is over whether you resigned voluntarily (because it will not be heard). You will need evidence to defend your position. This means paper documents- emails, screen shot printouts of texts, employee handbooks, contracts, or whatever it is that helps you prove what you are trying to prove. When you bring evidence to the hearing, you need to have 3 copies- one for you, one for the judge, one for the other side (also, always keep originals for yourself). It will be helpful if you have a witness go to the hearing with you to testify on your behalf. However, this is not always possible because your witnesses have work/school and it might be hard for them to take time off. If it is possible for them to be available over a phone during your hearing, do so. You will have to contact the appeal office and ask to set up a phone conference for your witness to call in during your hearing. If your witness cannot do either, then ask if they can prepare for a declaration. A declaration is a written statement under penalty of perjury, so make sure the witness is writing this and writing on what they know (do not write one for them and ask them to sign it; this is also why it will be a good idea to seek legal help on this). You should fax the declaration(s) to EDD early enough so they can prepare it for the judge and send a copy to the other side, prior to the hearing.

Here is the website for EDD if you need official information. This link is to the Employer page, which has info on the appeal.
http://www.edd.ca.gov/Unemployment/More_Employer_Information.htm

On the day of the hearing, they say to get there 15 minutes early. You should probably get there at least half an hour early. You will have to check in, and the office will give you your case file to review. This is a good opportunity to look through and see if the employer has sent in anything else that you have not been copied on. EDD hearings are conducted by administrative judges. The setting is informal compared to something like civil court, so it can be a little less stressful. Always, always, be respectful to the judge (and never talk over the judge!). If you do not understand something, ask. One tip from a colleague of mine- always answer the question that the judge asks. Take notes when the other side is testifying. You should note down things that you dispute. When it is your turn to ask them questions (or cross examine), you will ask questions about those items that you dispute. I recommend taking notes because the testimony will be fast, and full of information, and you will easily forget what issues you have to go back on. Also, before the hearing you should make an outline or checklist of facts you need to say at the hearing, and go back through them at the end to make sure those are brought up.

After the hearing is done, the judge will prepare a decision and mail it out to both parties. This can be quite fast. The decision itself can be quite lengthy because the judge will discuss EDD case laws (precedents). Also, you have a right to appeal the decision (see online). There is also a video on the EDD website on what to expect at the hearing that is pretty accurate. Overall the EDD website is really helpful, so spend some time on this before going in the hearing.

Hope this helps. I hope to write about pursuing unpaid wage claims in an upcoming article.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.