Employlaw.com Unemployment in California

FREQUENTLY ASKED QUESTIONS (and answers!)
*How do I qualify for California unemployment and start getting checks in my mailbox?*
Well, first you have to be unemployed. In other words, there is no "double dipping." You are NOT allowed to be work and collect unemployment benefits for the same time period. "Not allowed" is a nice way of saying it's a FELONY to defraud the EDD into giving you money.
Generally, you have to have been fired or laid off to qualify for benefits meaning if you resigned or quit you will NOT be eligible to receive money or checks.
Keep in mind that even if you are initially deemed eligible for benefits, before receiving a first check the ex-employer may contest or appeal your eligibility by filing a Notice of Appeal. Most of the time employers do not contest your receiving benefits, but for ulterior motive some employers might [see below.]
AS MENTIONED ABOVE, YOU NOW FILE FOR A CLAIM FOR BENEFITS ONLINE! NO EMBARRASSING VISITS TO THE UNEMPLOYMENT OFFICE!
My employer fired me because I was always late and I did not make sales quotas for each month. I have to admit, I was often late and my sales were down. Can I still get unemployment benefits?
This is one of the most misunderstood areas of unemployment benefits. Many a fired employee thinks that if an employer had good reason for firing the employee, then he or she is not entitled to unemployment benefits. Generally, this is NOT true.
*In California, to NOT receive unemployment, an employee must have been fired for "gross misconduct." (This is a term of art in unemployment claims. See below.)*
An employee fired for being a dumb ass, lazy, negligent, or poor performer should still be entitled to unemployment. The EDD, NOT your employer, determines if your conduct "sunk" to the level of "gross misconduct."
Generally, "gross misconduct" means a willful act that either caused, or could have caused, the employer to suffer significant injury or harm. An example of gross misconduct would be an employer catching an employee truck driver operating a company vehicle while intoxicated.
Assume the employee did not cause an accident nor get arrested by the police, but he gets fired. Drunk driving while in a company vehicle would be defined gross misconduct under the unemployment code and unemployment benefits would not be awarded to the fired employee.
Other examples of gross misconduct might be: 1) selling drugs at the workplace; 2) stealing employer property or money; 3) assaulting a co-worker; or 4) accidentally causing a building to burn down.
How much money will I receive and for how long?
You will have to contact the EDD for that information because both the dollar amount and total months you can receive benefits change at times.
On how much money YOU may receive: When you first file a claim, an EDD administrator will ask you questions about past income level (recent work quarters), hours worked, employment history, likelihood of finding a job, etc. The EDD will then refer to a "benefit table" to come up with a weekly benefit amount and that is what you will receive during the time you are unemployed.
Warning: I believe you can opt to have income taxes withheld from your weekly checks or to receive the money "tax free" until filing taxes the following year, at which time you must pay the taxes.
As to how long YOU can receive unemployment, duration is set by federal and California law. Both Fed and State law can change the maximum period from a few months to longer.
Sometimes the Government changes the law to provide longer benefit periods during times of economic downturn. For example, during the current economic crisis the Fed and State have extended the maximum benefit period to beyond 79 weeks! (I am not sure the exact number of weeks, so check with the EDD. See here too.)
I QUIT my job because the place where I worked was extremely unsafe. I heard that I cannot get benefits if I quit the job rather than being fired.
By the way, the employer violated many laws on workplace safety, such as OSHA. One of my co-workers also quit because of the unsafe working conditions. We both saw a co-worker get severely injured due to the same unsafe conditions. The employer simply refuses to make the building a safe place to work. Seeing all this, rather than risk inevitable injury, I quit. Can I still get benefits?
Bottom line first, it is near impossible to convince the California EDD that quitting your job was the same as having been fired.
If you tell the EDD you quit, but did so "involuntarily," the EDD will inquire as to why you did so. If the EDD determines that under the circumstances your quitting was reasonable, meaning a reasonable person would have quit rather than suffer, or continue to suffer harm [due to the employer's wrongful conduct], the EDD may ultimately consider your quitting equivalent to the employer firing you. This is called a "constructive discharge/firing."
If the EDD makes this determination, it should award you benefits. The "constructive firing" means that even though you quit, workplace conditions were so bad that a reasonable person would have quit and this was the same as the employer firing you, even though your resigned.
That's cool... even though I quit to take some time off and go on vacation, all I have to do is pick up the phone and lie to the boneheads at the unemployment office. I choke up a tear and tell how unbearable workplace circumstances forced me to quit.
would say: Quit bein the fool!
Remember, proving to the California EDD that your "quit" was involuntary is VERY DIFFICULT!
Generally, the EDD presumes (assumes) that an employee who quits a job did so voluntarily and for reasons other than an unbearable, hostile, or unsafe work environment. The EDD views as extremely suspect (and untrue) most stories about being left no choice but to quit due to an employer's supposed wrongful or illegal conduct.
The EDD's suspicion means that it will NOT take your word on what happened. Because of the deadbeats the EDD comes into contact with on unemployment claims, an intake administrator pretty much presumes your tale of woe is a pack of lies. With few exceptions, state benefit administrators are justifiably a pretty jaded lot. They have seen and heard it all, so their suspicions are well founded.
After talking to you about your involuntary quit (the reason why you quit) the EDD administrator telephones or writes the employer to obtain its version of events.
I assume you know how the call with the employer will go. Hint: no employer is ever going to admit to government authorities that its conduct was illegal or wrongful.
After your employer is done slicing and dicing your story, the EDD may ask you additional questions. After hearing both side, an eligibility for benefits determination is then made.
If the EDD denies your claim for benefits you have the option to appeal the administrator's decision by asking for a hearing before an administrative law judge [not a big deal, sounds worse than it is]. See below.
The California EDD said I was NOT eligible for benefits. Can I appeal the decision?
Short answer: Yes.
Long answer: If the unemployment department denied your claim, the EDD will mail you written notice that it has denied you benefits. The letter will include notification of your right to appeal the decision.
PAY ATTENTION TO THE DEADLINE WITHIN WHICH TO FILE A NOTICE OF APPEAL! The time to file an appeal notice is extremely short, typically a few days from the date the EDD MAILED the letter [not when you received it].
Filing a notice of appeal is fairly simple. Some people have been known to simply fax a note or letter saying "I appeal." Some use the form provided by the EDD. Some people do nothing and the deadline passes with those people subsequently begging the EDD to accept a late filing notice. Good luck on that one. But if you have a good excuse, they might let you slide on missing the deadline, so never hurts to ask.
The Appeal Notice says I have to appear at a hearing in front of a judge. What is that all about? Yikes... Am I going to be on Judge Judy now?
Actually, don't be worried. Appeals are very informal. They take place in cramped little rooms at the local California EDD office. Sometimes, you can even appear by telephone.
The "judge" is an administrative law judge. He or she is NOT not the same kind of judge you see on TV or in movies overseeing a big case. EDD judges do not wear black robes, everyone sits around a little metal conference table, the hearings are taped and the judge is the only state employee in the room. There's no bailiff, court reporter or clerks.
A word about the Judges. While appearing casual, they are typically intelligent, realists, fair, courteous, and professional [and they can detect when someone is lying so don't bother making up stories and trying to fool the judge.] The Judges take serious their charge and always seek to dispense justice.
A record is kept at the hearing, typically by the judge operating a little "Radio Shack" style cassette tape recorder.
As to how the hearing is conducted, the judge typically tells the person who filed the appeal to go first with an explanation of his or her version of events. Then he asks the other side for its story. The judge may or may not ask probing questions. Each side directly questioning the other may be allowed, but that is rare since the judge wants to avoid things getting hostile or the 1/2 hour hearing turning into a trial.
Hearings last anywhere from 1/2 hour to an hour or more. Judges do NOT like long hearings nor for things to drag on and on. Anything longer than about 45 minutes and the judges tend to become irritated [rightly so, unemployment claims are not that complicated and the hearing is not supposed to be a long, drawn out "trial," plus the Judge may have to hear many appeals a day].
After the hearing, the judge mails both sides a written decision, typically within days of the hearing. The losing party can can appeal the judge's decision, but absent clear irrational behavior by the judge, your time and money is better spent buying lottery tickets.
Hearings, Appeals, Judges. Should I get a lawyer to represent me?
Unlike trials, unemployment disputes are supposed to be informal, where the rules of evidence and other formalities do not apply. Typically, the employer and employee show up to the hearing, testify, give supporting documents to the judge, and answer questions posed by the judge or the opposing party.
The only time lawyers might get involved in an unemployment dispute is if the ex- employee might be pursuing a court case on claims unrelated to unemployment receipt of benefits. For example, if an ex-employee intends to pursue a wrongful termination in superior court, that would be a separate proceeding and that claim would not be delved into at the unemployment hearing. So if other claims are a possibility, why would lawyers attend an EDD appeal hearing?
Well... there is a rule of law that permitting any statements made by the employer, employee, or witnesses during an unemployment hearing to be admissible in other proceedings, such as at trial of the wrongful termination case. In other words, if at the EDD hearing the employee admits that he or she made frequent mistakes, later, in a wrongful termination lawsuit, the employer would want to use the employee's admission to show its firing was justified.
Over time, employers, employees, and their lawyers have realized that at unemployment hearings people might let their guard down and make statements that might be helpful in prosecution or defense of the "bigger" superior court case. Knowing this, employers and employees now send their respective lawyers to unemployment proceedings so to protect the client from saying something really dumb or to obtain evidence damaging to the "other side." Yes, employers too have attended unemployment hearings and made damaging statements.
Sounds like I need a lawyer and it is going to cost me.
If there are not going to be claims brought in other forums, such as in superior court, finding an attorney to represent you at an unemployment hearing is difficult, if not impossible. This is because the amount in controversy is small in comparison to what the lawyer would have to be paid for representation.
Consider the math: even if you might obtain the six month maximum benefit [assuming one qualifies for such and will remain unemployed for six months], such means that the dispute is worth under $8000 [depending on the max benefit allowed by law at the time, it changes]. Assuming that most attorneys would need to charge at least $1500 to $2500 to prepare for and attend the hearing, retaining an attorney is not cost effective.
Keep in mind that in comparison to other legal controversies, an $8000 dispute is an extremely small matter. This is not much higher than the maximum that can be pursued in a California small claims court, a forum where lawyers are not even allowed to show up and represent a party.
One alternative to not having a lawyer handle your claim is retaining the lawyer for a few hours during which he or she can help you prepare for the hearing and perhaps writing the appeal, that is, if your claim for benefits is denied.
*OK, so where can I get some help?*
Initially, take a deep breath, count to ten, and do not be intimidated by the process. Most people qualify for unemployment. Visit the EDD's website for more information.
The EDD's site also has more information on appeals. If an appeal hearing must be attended, remember the hearings are informal and the judges will assume you do not know the law. You are NOT expected to act like a lawyer [matter of fact, most judges do NOT like appeal participants acting fancy with "lawyer talk," objections or other behavior typically learned from movies and TV].
If you suspect that the appeal hearing may have independent importance [for reasons stated above], seek the advice of a lawyer in your area.
LINKS
	California Employment Development Department.
	California EDD Phone Numbers - Click here.
	California EDD Fact Sheet (very informative) Unemployment Guide by the EDD.
	California's Unemployment Insurance Code - Can't sleep? Read this.
	Cornell's Unemployment Information -Excellent general overview.



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