June 9, 2017 • By Dennis Beaver
If you’ve been denied unemployment insurance benefits because your employer claimed that you were guilty of “misconduct,” then today’s story will be of special interest, for that’s what happened to “Carmen,” the 32-year-old daughter of an old friend.
She was employed as a veterinary technician at a Central California veterinary hospital since February 2015. Her performance reviews were all excellent. Yet, on October 13, 2016, the office manager forced her to sign a written warning for excessive absences.
However, based on documents my office staff reviewed, all the dates listed were either for approved vacation days, no work to do and Carmen was sent home for that reason, one was for an on-the-job injury, days she was not scheduled to work, and two days due to illness supported by a doctor’s note.
She was fired on November 28, 2016, and told it was because she missed too much work. At the beginning of December, Carmen filed for unemployment on the EDD’s website, received a claim number, and then nothing, no contact from anyone until April 2017.
“Your file was lost in cyberspace,” an uncaring interviewer told her.
A family business with one outsider
As Carmen explained, “This was a small animal hospital and everyone but me were all family. The doctor is in his late 80s and seldom came in. I was fired so they could save money, a former co-worker told me after I was let go.”
Don’t confuse me with the facts, my mind is made up
In late April, an EDD interviewer phoned Carmen, told her that the employer had fired her for misconduct, missing too many work days. “But the guy from EDD refused to listen to my explanation and twisted everything I said. They lost my file for months, and now he is making me out to be a monster!”
A few days later the decision arrived, stating, “Employee misconduct due to excessive absences and therefore no right to benefits.”
Carmen challenged the decision by submitting a detailed 5 page letter with attachments, showing that her time off work was proper. That didn’t phase EDD and she was again denied for the same reason.
Much like her father, she didn’t give up and filed for a hearing before an Administrative Law Judge.
Careful preparation includes your appearance
It doesn’t matter where or what type of legal matter is involved, before we say a word our appearance has already done a lot of talking. Research studies show that employers routinely refuse to hire anyone with piercings or head and neck tattoos, so to avoid bias or prejudice in a courtroom setting, most lawyers insist they be removed or covered. Carmen removed her nose piercing.
Super client – poker-faced judge
Following my advice to wear light colored clothing, hair done in a manner to reveal her lovely face, to listen and answer only those questions the judge asks, Carmen testified credibly, and was simply the best client I have ever had at an EDD hearing, and I’ve had hundreds. She was well prepared, knew the dates that were questioned, and had all the documentary evidence necessary to prove her case.
Our judge was Thomas S. Pavone, who fits the definition of being poker-faced, which is a good thing as these types of hearings are often highly emotional, especially when both employer and terminated employee appear. But it was just the three of us.
Pavone went through the file, reviewed those days Carmen was absent, and indicated that we would receive his decision shortly.
He remained unreadable until the very end when I noticed, just for a second, a smile. I felt that we had won and Carmen would receive her unemployment insurance benefits because she was not guilty of misconduct.
Discharged for misconduct means no benefits
If you are fired due to misconduct, then don’t expect to get unemployment insurance benefits. Right now you are probably thinking, “So what is the definition of misconduct?”
In his decision, Judge Pavone answered that question by stating, “Misconduct connected with work is a substantial breach of an important duty or obligation owed the employer, willful or wanton in character, and tending to injure the employer.”
Of interest is the fact that this definition has appeared in EDD training manuals since 1960. Also, EDD personnel have been taught, “Absence caused by illness does not constitute misconduct.”
The judge found that Carmen “Was discharged for reasons other than misconduct connected with her employment. She is qualified for benefits.”
What happened to Carmen was no accident. EDD revealed bad faith by willfully denying her unemployment insurance benefits for months. And she can’t their only victim.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.