Fired, With No COBRA Notice, No EDD Rights Notice

[ccs753]

My question involves labor and employment law for the state of: CA

First of all I was fired after a so called investigation into my violation of the company policy against "discrimination and harassment". There is a lot of background regarding this issue that I will not go into because it does not pertain to the question I am asking. I am already pursuing a wrongful termination claim as well as appealing the EDD decision to deny my unemployment. My questions are:

1. I worked for an employer who employs over 20 people, they fired me on Dec. 17, 2008 and gave me a memo that met all the requirements of section 1089 of the CUIC. However, they did not notify me of my rights to file for unemployment insurance. According to the section
"Each employer shall, pursuant to authorized
regulations, supply each individual at the time he becomes unemployed
with copies of printed statements or materials relating to claims
for benefits."
and
"Failure to comply with this section by an employer shall constitute a
misdemeanor."

What are my remedies for their failure to comply? How do I report it? can i use this as leverage for settlement? i.e. during negotiations would it be constructive to say, I will not pursue this matter?

2. I was told my health coverage (fully paid by employer) would be terminated on Jan. 1, 2009. I waited for COBRA notification and never received it. I did receive a notice of HIPPA from the insurance company stating that my coverage was terminated on Feb. 1, 2009. So they continued my health coverage for an extra month (by accident I am sure). My understanding of the law is that I need to be notified either wayof my rights to COBRA. Either I am eligible or ineligible, I must be notified within 14 days.

What are my remedies for their failure to comply? How do I report it? can i use this as leverage for settlement? i.e. during negotiations would it be constructive to say, I will not pursue this matter?


Any answers on these questions would be very helpful.

[divemedic]

In order to be eligible for COBRA, you must have experienced a 'qualifying event.' Those include:

- Voluntary or involuntary termination of employment for reasons other than gross misconduct

- Reduction in the number of hours of employment


Since you were terminated for gross misconduct, you are not entitled to COBRA benefits.

[ccs753]

Yes I understand that position, and even though the issue of gross misconduct is involved. Do they not still have a legal obligation to notify me of my inability to get coverage and my ability to appeal the decision?

Finally, the employee and potential COBRA beneficiaries have to be notified of the determination that COBRA is not being offered because of the termination for gross misconduct. The general COBRA notice provisions require that after a quality event occurs, the employee and any covered dependents eligible for COBRA coverage be notified of their option to elect continuation coverage. If that coverage is being denied, the employee and dependents must be notified of the decision and must also be given the right to appeal the determination by the plan administrator. The 2005 amendments to COBRA reference a “notice of unavailability of COBRA coverage” to be provided to plan participants in the event that COBRA coverage is not offered. That notice is sent instead of the election form. The participants then have the ability to appeal the determination that coverage is not available.


My question is not about the coverage but about the employer not following the law. Both pertaining to COBRA and EDD, it shows a pattern of at worst, misconduct, at best poor HR practices by the employer. I am really seeking more leverage for the time when mediation comes along. I already have a right to sue letter from the DFEH.

[cyjeff]

Further, they have 45 days after the termination of benefits to provide you with COBRA information.

[ccs753]

Further, they have 45 days after the termination of benefits to provide you with COBRA information.

It seems the answers are missing the questions. I do not care about the COBRA benefits, it is a non issue for me. Them failing to comply with proper procedure is the issue. This club is run poorly, their human resources department consists of an uneducated woman and her daughter. Neither whom know anything about employment law. It is my belief that they will not comply with the COBRA requirements, as they did not comply with the CUIC. That non-compliance being a misdemeanor. The place is run by a board of directors who really don't care much about how things are run and there is no accountability for these women. In a nutshell it is a poorly run company, with no regard for labor laws. It operated for over 50 years without a meal break policy. Again my questions are not about obtaining my COBRA coverage, I already have the answers for that. I would like to know:

What are my remedies for their failure to comply? How do I report it? Can I use this as leverage for settlement? i.e. during negotiations would it be constructive to say, I will not pursue this matter?

[cyjeff]

It seems the answers are missing the questions. I do not care about the COBRA benefits, it is a non issue for me. Them failing to comply with proper procedure is the issue. This club is run poorly, their human resources department consists of an uneducated woman and her daughter. Neither whom know anything about employment law. It is my belief that they will not comply with the COBRA requirements, as they did not comply with the CUIC. That non-compliance being a misdemeanor. The place is run by a board of directors who really don't care much about how things are run and there is no accountability for these women. In a nutshell it is a poorly run company, with no regard for labor laws. It operated for over 50 years without a meal break policy. Again my questions are not about obtaining my COBRA coverage, I already have the answers for that. I would like to know:

What are my remedies for their failure to comply? How do I report it? Can I use this as leverage for settlement? i.e. during negotiations would it be constructive to say, I will not pursue this matter?

You can do NOTHING until 45 days have past since you were covered.

If you believe you could do something, contact your DOL.

[ccs753]

45 days do not apply to the CUIC violation which is in fact a misdemeanor offense

[cyjeff]

Fine, then let's back up.

What about your termination made it a wrongful termination?

[ccs753]

It is a very long story, I will try to sum it up here without giving too much information, since this site is indexed by google. When I was hired i was told in no uncertain terms that I was not to mess with certain people whom I either worked with or supervised. After about 6 months I hired a 17 year old male shortly after his hire he came to me and told me of the WHITE FEMALE bar manager having given him shots of tequila during an event, he also told me that he gave her a ride in agolf cart to her home on the course where she proceeded to undress in front of him. I reported this behavior, sexual harassment, furnishing alcohol to a minor, and HER drinking on the job. He even had pictures on his phone of the inside of her house and liquor cabinet, which contained many bottles not available in stores. She was promptly suspended with pay for one week while an investigation was conducted. She was informed of the investigation before it occurred and given an opportunity to defend her actions, even allowed to continue some of her duties from home. After the investigation was completed (one week) she was suspended for one week without pay.

One year later after working with this woman and her hostility towards me (as well as her boyfriend and friends who were on the board of directors, can you see conflict of interest), I was informed by a vendor that she was asking about me ordering food for my home, which I never did. I decided at this time that I would report her theft of linens from the club and harassment and defamation against me. A couple of weeks later my boss (unpaid house chairman BOD) informed me that I would be getting a call from the "independent investigator" for an interview, and that he could not tell me what it was about. This raised red flags for me, the next day i get a call for an interview and when I ask the investigator what it was about she said she would tell me when I got there.

In the interview I was asked a couple of questions about the conduct of the bar manager. Then the investigation proceeded to an allegation made against me by an employee whom I had informed my boss I wished to fire for lack of performance on the job, and a number of questions were fired at me regarding an incident where I allegedly poured a can of soda on him after he had poured lemon juice in my soda. I explained that I had spilled a small amunt of soda on him by accident. She went on to ask me about language used in the KITCHEN where I worked. Apparently I had been accused of addressing this man in a racially derogatory manner. He often referred to himself as a redneck, and I had one time used the term after he had returned from the beach and his neck was red. The investigation was a sham, they did not even look at the surveillance tapes that would have shown the incident exactly as I stated it. The employee accused me of racial discrimination, even though my father was white. He stated that he felt that he was a target of my hatred, even though after this "incident" he would offer me rides home and we continued to be on friendly terms. It was obvious that he was making this accusation for his own personal gain, he now has my job. From the date of the alleged incident and my termination 43 days passed. During this whole time we continued to work together and had no problems.

I worked this job for 20 months with absolutely no disciplinary problems, always working hard and exceeding expectations. They had just spent 1 million on the course and were under pressure to cut costs wherever they could. Replacing me at $20 per hour with someone who made $12 was an easy decision, even though he had documented disciplinary problems.

The basis for my action against the company will be Racial Discrimination (I am a BLACK MAN, even though my father was white), retaliation, and a host of other factors, including defamation, inability to take meal and rest period breaks.

There are a number of factors which give my action strength, including the disparate actions between my disciplinary proceedings and that of the WHITE FEMALE bar manager with a history of write ups. The latest investigation into her actions did not even mention the theft of linens, even though it was corroborated by at least 3 other people. She was informed that she had twice been dishonest during formal investigations against her, and she better not lie again. They also found that although she had made disparaging remarks against me to others that they did not constitute retaliation, and that even though she was keeping logs on all of my actions she was really doing nothing wrong yet she needed to cease and desist in keeping logs on kitchen activities. In other words they were sure to absolve her of all wrongdoing that could be construed as fireable offenses.

In addition to that, when they conducted their so called neutral investigation into me they only called upon witnesses who had an axe to grind against me, all others who were pertinent to the investigation were excluded from it.

They have contested my unemployment insurance benefits, although I am sure I will prevail at appeal. They refused a severance package which would have made all of this null and void.

They have already responded to a demand letter with an offer that is significant while it is also ridiculous, when considering the cost of just defending the case. I am really just looking for more leverage to take to the table. I am in a serious financial bind because of my loss of work and inability to find any in my area. I will most likely have to relocate to find work. I am not looking for a huge sum, just what is due to me and will help me through these times. I have a good friend who is also a lawyer and is willing to contingency the case, but right now he is just trying to assist me in getting it settled without charging me very much. If his firm becomes involved then we will have to set up the usual contingency schedule of 33/40%. Which is why i am doing most of the research and he is just handling the letters and communication with their lawyer.

I guess that sums it up, as we all know there are not many lawyers willing to take labor cases on a contingency basis. I have talked to four really good ones who would love to take mine, which shows the strength of the case.

[cyjeff]

I don't know whether you have a case or not. I don't see anything from what you said that really qualifies, but you were there and I was not.

Let me ask you about this severance package you offered. Are you saying that you tried to extort money out of them to prevent you from going to court?