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  1. #1
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    Jul 2011
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    Default What are the Chances of Winning an Unemployment Appeal

    My question involves unemployment benefits for the state of: California

    Hello All,

    Back in November I applied for Unemployment after I quit my job. I explained the situation to the EDD rep and week later I received my approval form, a few days after that I received a notice advising me that I am ineligible to received unemployment benefits do to a disqualifying act of: Voluntarily quitting due to new conditions of work imposed by the employer without seeking all reasonable resolutions first. It also went on to state that I could have the disqualifying act removed if I returned to work and earned 3.5x my week benefit amount, and I could then be eligible for UI benefits...which makes no sense to me at all.

    This is what happened (If you don't want to read the whole thing, skip to the bottom bolded points of interests):

    From April-September 2012, I was a supervisor of this department where there was manager above me who was complete out of control, unprofessional, and down completely not competent in leading the team. I'm not saying all of this to make her look bad, it is the absolute fact. The things that went on in my department by our manager, no one else knew about, because if they did, it would be a high profile legal issue. However, my team were scared for their jobs, and wanted better leadership. I agree with them as well, and we all sent COUNTLESS emails, of which I have copies of, borderline begging HR for a resolution to having a manager whose behavior was manic and dangerous. All of those emails, sent from 6+ people, were never answered. No changes or resolutions were implemented. Towards the end of September we all were stressed out to the max, full of anxiety, and walked around on egg shells around HR as well as our manager because we felt that there was no one we could trust or that would help. Me being the supervisor of my team, I carried the brunt of the stress and anxiety because I felt like there was nothing I could do to help/save these people.

    Well, you're probably wondering why this manager was never fired right? She "allegedly" (but confirmed vocally to everyone on the team on SEVERAL occasions), was sleep with the COO, who, coincidentally hired a new HR manager back in January who happened to be 25+ year friend of his. Long story short, some illegal money laundering and things of that nature were brought to the attention of the CEO, who lived on the east coast and apparently trusted his COO too much, and the CEO fired a bunch of VPs and Executives and then eliminated our positions and our department. We had the option of quitting or being reassigned. Because I wanted to keep my job and NOT be unemployed I interviewed with all the managers of other departments that had openings to decide which department would be the best fit. None of them were a good fit because their job duties were completely different from what we did and required a different skill set that I did not fully understand. One manager in particular made a bunch of promises to us about how the transition would be easy and there would be a lot of training would be available. So we all decided to switch go to that department. I took a week off to de-stress and prepare myself for my new role in the company.

    When I came back, Oct 7 the job was horrendous! There was insufficient training, and financial concepts that I did not understand at all. We had 6 managers running around the floor yelling at us to get on the phone and/or to wrap up a call so we can take another one. The people I talked to on the phone would yell at me, the managers would yell at me, the new coworker I sat beside would, on a weekly basis, drop her phone and run out of the office crying. I couldn't take it. What we experienced before this, in my department, was no where near the amount of stress, anxiety, pressure, and fear that we now experienced. The managers all said, "oh we'll give you more training," or "you'll just have to get use to it this is how it is," or "You guys had it easy down there now you get to feel what it's like to actually do work!" "You get a hell of a lot more than other reps on your team, so you are expected to do more work than they are" (That last one came straight from the VP of HR, the one who doesn't return emails/pleas for help).

    At this point, the stress, anxiety, and depression got so bad that it started affecting my attendance. I would be so exhausted from running on adrenaline and fear all day that I would go to bed and oversleep. My attendance record at the company was always spotless, hence the reason I earned a promotion within my first 6 months, along with my willingness to go above and beyond for the company. At this time, I had weeks of vacation time saved up because I never took a day off, nor did I ever miss a day or was more than 5 minutes late, ever! Now I started being 2 hours late, 3 hours late. I started getting sick, yet I still came in because they would threaten us with impending termination if we ever called out. I needed to do something because I did not want to lose my job, so I approach the managers, and asked them to give me a part time schedule, and that I would cover whatever hours they wanted me to cover, just as long as it wasn't more that 32 hours a week..I needed a break..I couldn't sit there all day ever day constantly being yelled at and threatened by both management and the customers on the phone. They reluctantly agreed to give me part time hours, more out of an feign attempt to appear like they cared, but not before threatening me that a full time position may not be available in the future and part time employees are usually "the first to go."

    I began my part time hours Nov 1st, on Nov 11th, after still not receiving the additional training I needed and requested, and not understanding the other secondary training information they provided (A large book of terms and financial information that was foreign to me) and because the night before I became borderline suicidal, I decided to quit. I filed for unemployment a few days later.

    My points of interests that I would like to make are:
    • My conditions of employment had not changed, my department and position were terminated.
    • All reasonable resolutions to this "change in conditions" were explored in depth via interviews with all other departments and additional training requested.
    • My department had assisted this department with their phone calls when they would become busy, on a once a month (for 2-3 days) basis, but we were limited in what we assisted the customers with, since we were never fully trained in their specialty, so it was all basic level information and assistance that we provided. Anything we did not understand, we would transfer back up to their department.
    • It is not my problem, nor my fault, that I, previously being a supervisor, was being paid more an hour when I transitioned into a Level 1 Representative, than the ones who started out and are still currently Level 1 Representatives. I do not believe it is fair to expect me to do more work than everyone else, especially when I'm in a new environment, doing a job I am not use to doing, with insufficient training, just because I get paid more.
    • Also, a coworker of mine, who went on maternity leave a few weeks before our department was shut down, came back, she informed me that the VP of HR advised her that there were positions available in other departments, but she declined them, but she is in fact receiving unemployment.


    I have appealed their decision and we have a hearing scheduled in a couple of weeks. Given your expertise, how are my chances looking at this point? I plan to give a little back story as well as emphasize on those points of interest. I don't know if this hearing can have witnesses, as I haven't received all the info from them regarding the hearing, but I have 3 that I can bring with me who will attest to these facts. What are your thoughts?

  2. #2
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    Mar 2012
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    You quit, so the burden of proof is on you.

    However, I can't tell what theory you're working under to get benefits. I can't tell if you want this to be about a change in conditions, if you are trying to make this a medical quit, or if this is about having a bad boss.

    Seriously, if you were pretty sure you'd get fired if you'd called in sick, that is exactly what you should have done because calling in sick once or twice or taking your vacation and getting fired would not have risen to the level of misconduct.

  3. #3
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    What exactly am I going to have to proof? The "theory" I'm working under to get benefits is what the EDD has deemed to be the only reason they denied my claim, which is: "I left without seeking all possible resolutions before I quit, due to the change in working conditions." After interviewing with all managers of other departments that had open positions, as well as seeking part time hours to cope with the with the fact that this job was NOT what I was hired to do, nor was skilled enough to do, there were no other possible resolutions to seek. My "working conditions were not changed", my position, and my department, was eliminated, bottom line. My goal is to rely on the facts and show that I did everything possibly to keep a job at this company and unfortunately, due to no fault of my own, my efforts were unsuccessful. I will also add the fact that the woman in my department who returned from maternity leave, did not accept a position, nor seek "any reasonable resolutions" and was granted unemployment benefits, so there is no reason, that I can see, that I would not, and should not, be granted benefits as well.

  4. #4
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    "working conditions were not changed," you say this, but changed working conditions IS a valid reason. If you have a stack of emails showing that you tried to "adjust your grievance" after "my position, and my department, was eliminated," then you want to show that you did try to fix things, but don't say, "working conditions were not changed," at your hearing.

    The extreme example that people understand is that you can't be the accounting supervisor, and then told the next day that you'll be cleaning the toilets from here on out. It's equivalent to being fired from your job (qualifying separation), and then refusing to accept another job that you hope is adjudicated as an unsuitable position in light of your length of unemployment, wages, skills and training from recent previous employment.

    Also, talk to the coworker that got UI what she said on her paperwork for not returning from medical leave. It's possible she put that she was discharged, and the employer didn't respond, and she didn't get UI because she had all the right words for quitting, but because the employer didn't say anything to complicate her claim. Also, what happened to her is usually poopooed by the ALJs by saying, "we're talking about you, not her."

  5. #5
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    Jul 2011
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    Thank you the tip. I will definitely keep that in mind.

    Title 22, Section 1256-3(c) provides:

    Prior to leaving work, the claimant has a duty to attempt to preserve the employment relationship. Failure to do so negates what would otherwise constitute good cause.

    I do in fact have copies of emails that I sent to my direct manager regarding my situation, asking for more training, telling him I didn't fully understand all the financial stuff that I had to explain, asking for a change in hours from full time to part time, advising them that the environment and workload was too stressful and was giving me severe anxiety.

    The reason I brought up that coworker is because it states under "good cause": The claimant must act as would a reasonable person under the same circumstances. As pointed out in Zorrero v. CUIAB, (47 Cal. App.3d 434, 1975):

    [T]he quitting must be for such a cause as would reasonably motivate in a similar situation the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the . . . unemployed

    Not including the coworker who came back from maternity leave, there were 4 of us that were left in the department, at the time "our working conditions changed" who were reassigned to this particular department. As of today, there is only 1 left. We all had the same issues with the department, the lack of training, the stressful environment, lack of response and/or outright lies from management, etc. We all interviewed with different departments and were promised that we would be given extensive training to help us be successful in this department. One girl quit the first day we moved up there because apparently the manager promised her internet access and other things to move up there and it did not happen, I quit about a month later after doing everything possible to make it work, and another woman quit 2 weeks after I did, and she did all the things I did, except for request the change in hours. These two are the "witnesses" I said I could bring to attest to these facts as they were there and they prove: "...such a cause as would reasonably motivate in a similar situation the average able-bodied and qualified worker to give up his or her employment with its certain wage rewards in order to enter the ranks of the unemployed."

    What are your thoughts?

  6. #6
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    Mar 2012
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    You're using the wrong section. You want to use this one: http://www.edd.ca.gov/uibdg/Voluntar...0.htm#Transfer

    There are more loop holes to work with that will allow you to get benefits.

    You say you were a supervisor in your old job, but this new one sounds like you were a grunt. The system recognizes greed. If your salary grade and promotional prospects were compromised by this new postion, then that is the kind of stuff where you want to hang your hat.

  7. #7
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    Yep that will work. I was transferred from a Supervisor to a Level 1 representative..which is 3 bumps lower. My salary level was not compromised, as they kept it the same but my promotional prospects where compromised because of the fact that I was transferred to a department that I had insufficient training or skill to be promoted. They would not allow me to be a supervisor in that department because I was not skilled to successfully supervise a team doing that type of work.

    Question..does the ALJ rule on a decision that day or weeks later? Also..who will be in present at the hearing..some people have told me it will be a lawyer or some other person speaking on behave of the company, another person told me it will someone from EDD speaking on behalf of EDD on why they denied my claim.

  8. #8
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    You keep discounting things that count. While they may not have cut your pay rate, you might be maxed out in your current pay range, and you won't get a raise for the next 10 years. Be more careful about how you say things. Also, I'm just not so sure that "insufficient training or skill to be promoted," is going to get the ALJ to see that you were demoted plain and simple.

    In all probability, no one from your company is going to show up, and if some one does, I doubt it's going to be an attorney. They'll send your supervisor or someone from HR. The company's testimony will amount to, "the claimant should be denied because she voluntarily quit." No one from EDD is going to come in this particular type of case.

  9. #9
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    Ahhh. Ok I see what you mean. My pay was maxed out actually. The VP of HR told us when we were reassigned that we would not be getting any raises from here on out considering we were all ready getting paid more than everyone else. Our department was literally, and legally, a separate business entity within the company, where our pay scale and promotional prospects were completely different. Thank you so much for your help. Does the ALJ make an immediately decision that day?

  10. #10
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    Default Re: What are the Chances of Winning an Unemployment Appeal

    It's my opinion, that they know right then and there, but in my two hearings with an ALJ, and from hearsay from others, the ALJ's usually say very nicely, "You'll receive my decision by mail within 10 days. If you disagree with my decision, you'll be able to follow the the instructions and file an appeal."

    I was always blindedsided by the decision because I just couldn't believe the direction they went, so you'll have no clue when you get done whether you won or lost.

    I don't know if you read any of my other threads, but I quit when my employer substantially changed my working conditions, and while it wasn't an inordinate amount of work, it was a long wait to progress to each step (6 to 8 weeks). A year in total before I saw my first check. My hours were cut and I lost my health insurance. I never got benefits from either tribunal ALJ. I only ever won at the board of review because the ALJs applied the wrong regulations.

    The deputy said I quit because my hours were reduced which is disqualifying. The first ALJ said that because my wages weren't cut below the minimum wage, that i wasn't eligible. The board of review granted a new hearing because the ALJ blocked testimony to establish a value for my health insurance and because she failed to apply the correct "refusal of work" regulations. The second ALJ went off on her own ignoring the instructions from the broad of review and said that health insurance wasn't wages and since none of my duties changed that no substantial change in my employment took place. A single board of review ALJ agreed that health insurance wasn't wages, but ignored the substantial change issue completely. Neither tribunal ALJ was asking the right questions for me for me to make my case. I pretty much had to take control of the hearing to get my evidence and testimony on the record, and both of them were offended. However, had I not got the evidence into the record, I'd have failed at the board of review. I knew why I was eligible, and I could prove it.

    The final analysis from a board of review panel of three judges was a split decision that the company paid portion of my health insurance premium represented 22.9% of my total compensation, and was a substantial change. The elimination of it was a nondisqualifying discharge because the employer failed to prove or even suggest there was any misconduct. That rather than quitting, I actually refused an offer of new work the following day, and that a 22.9% reduction in compensation was unsuitable because it was substantially less favorable than what is available in the locality.

    So what I'm getting at is that you can be right, but it can take a long time to get your benefits, and money talks. I think some people feel that they'd sound greedy if they quit over money. The system recognizes it, and it's much easier for things to be plainly seen when you can attach a dollar value to an item to put it in perspective. So if you used to get 4% raises, and now you won't, that is something you need to bring up, because I doubt the ALJ will prompt you or help you make your case.

    So even if you lose, if they apply the wrong theory you can still appeal to the board of review. What you need to do is really focus on what direction you want to go.

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