Employlaw.com Unemployment in California

FREQUENTLY ASKED QUESTIONS (and answers!)
*How do I qualify for 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. Typically, 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." 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. For example, imagine the employer catches one of its truck drivers operating a Company vehicle while intoxicated. Even though he did not cause an accident or otherwise get caught by the police, the employee is fired. Most likely the EDD would consider the employee's drunk driving gross misconduct warranting a denial of unemployment benefits.
Other examples of gross misconduct might be: 1) selling drugs at the workplace; 2) stealing employer property or money; 3) assaulting a coworker; 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 money change at times.
As to how much money YOU may receive, when you first file a claim, an EDD administrator will ask you questions about income level, 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 [weekly payments up to the maximum number of weeks allowed by law].
As to how long YOU can receive unemployment, as said above, the duration is set by federal law. The 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, a few years ago, the government extended the maximum benefit period to 12 months. But, the max period is usually about 6 months or less.
The place where I worked was extremely unsafe. The employer violated many laws on workplace safety, such as OSHA. One of my coworkers quit because of the unsafe working conditions. Another was severely injured due to the same unsafe conditions. Seeing all this, rather than risk inevitable injury, I quit. Can I still apply for unemployment, even though I quit?
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 consider your quitting equivalent to the employer firing you. If the EDD makes this determination, it should award you benefits. In a sense, the EDD would have made a decision that you were "constructively discharged," meaning that even though you quit, workplace events and the law consider the employer to have fired you.
That's cool... even though I quit to take it easy for a time, now all I have to do is pick up the phone and lie to the boneheads at the unemployment office how unbearable workplace circumstances forced me to quit.
would say: Quit bein the fool!
Proving to the EDD that your "quit" was involuntary is VERY DIFFICULT! Generally, the EDD presumes that anyone who quits a job did so voluntarily. The EDD views as extremely suspect any story that you were forced to quit due to wrongful employer conduct.
The EDD's suspicion means that it will not simply take your word on what happened. Because of the deadbeats the EDD has to "screen" for unemployment, an intake administrator pretty much presumes your tale of woe is a pack of lies. With few exceptions, state benefit administrators are understandably a pretty jaded lot. In other words, they have seen and heard it all, so don't think you can fool them.
In involuntary quit cases, after hearing your story the EDD administrator telephones or writes the employer to obtain its version of events. And do you think your ex-employer is going to admit that its conduct was wrongful and that its bad behavior is the reason why you quit? After your employer characterizes your resignation as a voluntary quit, the EDD may ask you additional questions. An eligibility for benefits determination is then made.
In "quit" cases, the EDD typically will reject your claim for benefits leaving you 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.].
The 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...
Actually, appeals are very informal. They take place in cramped little rooms at the local EDD office. Sometimes, you can even appear by telephone.
The "judge" is actually an administrative law judge, who is not the same kind of judge you see on TV or in movies overseeing a murder case. EDD judges do not wear black robes. 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.]
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 or 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. Yes, one 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 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 Fact Sheet (very informative)
	California's Unemployment Insurance Code - Can't sleep? Read this.
	Cornell's Unemployment Information -Excellent general overview.



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