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Denied Unemployment Due to False Claim of Disparaging Emplloyer

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  • 06-07-2012, 09:45 PM
    MRSD
    Denied Unemployment Due to False Claim of Disparaging Emplloyer
    My question involves unemployment benefits for the state of: CA

    First thank you for taking the time to help me out, I am sure you guys get a lot of this, so thank you again for taking the time to read through my situation and give me some advice.

    Little background history for my last employer, I work there 9 months, was the top sales rep for 6 out of the 9 months, never late.etc. In February I decided to join the military, as in officially sign the dotted line. I graduated from college and been doing office work ever since, but just don't think I can sit around in a cubicle all day and feel like I am accomplishing nothing. (Granted the money was really good at this job.) Anyways, a few weeks later I emailed my manager and the owner (small company, 7 employees) that I was leaving in July to join the Army, and that I planned on working for them up until the final week until I left.

    Now up till this point, like I said, had been pretty much the top sales rep for the entire time I was there, but after this notification, the next month and the following month all of sudden I was on the bottom of the board and the guy who had always been in last, was suddenly getting all this business. By the way, this was a phone sales job, and the manager and the owner were diverting all the inbound calls away from me, which caused my sudden decline. Likewise, the owner would walk around the office saying things like "Why don't you just quit now" or "If you don't make sales quota for three months, we'll fire you".

    Not that it matters to the case I don't think. But the owner is a total A*Hole, who did hard drugs in the office, treated his employees like crap. The only reason I stayed is because I knew I was leaving and the money was good. The first week of April, I had told both the manager and the owner (who are friends outside work) that I would appreciate if they stopped doing drugs in the office and selling drugs out of the office while we were working, since I was joining the military and didn't want to fail a drug test somehow, nor be wrapped up with anything that could potentially happen due to their drug dealing. Like I said, I would have left this job a long time ago if it weren't for the fact that I knew I was leaving. So I figured I would just grit my teeth and keep doing a good job.

    On Apr 6th, they called me into another room and told that day was my last day. I asked them why, the owner said its an at-will state and he can do whatever he wants. So he handed me my payback and I made my way down to the main office to gather my things. I then asked him if he was going to give me any reason why, he said again, its an at-will state and he is just letting me go. So I told him to give me something in writing saying that, he refused saying he didn't have to do anything he doesn't want to do. So I asked him again, give me something in writing stating that he was just letting me go just because. He said "You can go ahead and file unemployment if you want, I won't stop you". It was at this point I broke out my camera phone and said "Okay say it on camera, say that you are just letting me go just because, and won't give me a written declaration as to why your letting me go" He just kept saying things like "its an at-will state, I don't have to do that" "just leave" "I'm not giving you anything" All the while I just kept repeating " Give me a written statement saying you are letting me go just because" (This went back and forth for about a minute, where I just wrapped it by saying that I already had enough on camera that you won't give me anything in writing and won't tell me why I'm being let go"

    If you wondering why I did this, its because a few months prior they fire someone in a totally lying jerk way. The manager told him he could go home early, then a hour later the owner called him and fired him for abandoning his position. (They also lied to the UI interviewer on the phone, and said they abandoned his position) He had to go before a judge like I have to and prove his case, which he ultimately won.

    Now in my instance, I have a hearing on June 19th for my appeal because they said I made disparaging remarks against the business, which if I was, would be the first I ever heard of this.

    Here's what I have as far as evidence goes

    Video of him the day he let me go saying he was letting me just because and wouldn't give me something in writing.
    Video and pictures of drugs in the office and of him doing drugs in the office. (Smoking weed out of a bong)
    Copies of berating emails he sent me throughout my tenure there.
    Written Statement from the other employee who was let go (mentioned above) basically saying how like in my case, they lied in his, made up things, etc. And which he ultimately won.

    Now, what I wish I had, but have no physical proof, is that I had a lot of emails from him and such that I had forwarded to my personal email that were suddenly deleted, if I were able to get a court order, I could subpoena Google for a log in history which would show that after I was fired, my email was accessed from their office OP about a week later. (I still have a few emails saved on my comp thankfully)

    The real reason I believe I was let go, was because I complained about the drug usage verbally, and my intent to join the military.

    Now that you guys know everything, I was hoping you could give me some advice, maybe something I should gather in addition to what I have. Likewise, in regards to filing a wrongful termination suit after this hearing for unemployment, any advice there? I was thinking just small claims court for lost wages for the months I would have worked. I have no proof that they fired me because of my military status, other than I was the top sales employee 6-7 months leading up to, then after my notice to them, suddenly the worst employee. Its not like I have an email from them saying "We are firing you because of your pending military obligations". Do you think this would hold water in small claims though? Also does anyone think it would be wise and in my better interest to "serve" him all the evidence I have going into this UI hearing, that way I can show good faith to the judge and say to her. I gave them everything I have, and before I got my initial UI decline letter, I had never been warned of any apparent "disparaging remarks" I was making (Because I wasn't). And can point out that any evidence they are presenting that day is the first time I have seen or heard of it.


    Thank you for your time and consideration.

    - - - Updated - - -

    Here is something I found in regards to the USAERRA Laws

    Here is a general thing I found on from the law

    "USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. An employee should provide notice as far in advance as is reasonable under the circumstances. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty."

    Likewise, a few more things that pertains to me

    "§ 4311. Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited

    (a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation."

    "(c) An employer shall be considered to have engaged in actions prohibited-

    (1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or "
  • 06-08-2012, 06:38 AM
    cbg
    Re: Employer Lied to Ui, Denied My Claim, Going to Appeals,possible Wrongful Terminat
    Answer (and a number of the responders) the same as on the other forum where you posted this.
  • 06-08-2012, 08:23 AM
    MRSD
    Re: Employer Lied to Ui, Denied My Claim, Going to Appeals,possible Wrongful Terminat
    Thank you guys for all your help, I am just trying to get as much advice as possible, likewise, I posted this here because you guys have given me a lot of insight in regards to wrongful termination aspect, but this forum seems geared more towards my UI appeal. Which I hope to be successful again, my apologies though for posting this on two forums.
  • 06-08-2012, 08:40 AM
    cbg
    Re: Employer Lied to Ui, Denied My Claim, Going to Appeals,possible Wrongful Terminat
    Has your unemployment actually been declined and you're in an appeal process? Or are you still in the initial determination stage? I guess to me, at least, that isn't clear.

    BTW, through a friend who used to work for the UI system, I have learned that the UI division EXPECTS people (both employer and employee) to lie.
  • 06-08-2012, 09:26 AM
    Mr. Knowitall
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    If I understand... In February you informed your employer that you had enlisted in the military and that your last day would be in July. Your boss subsequently asked you, "Why don't you just quit now", and cautioned you that you must still meet performance goals, "If you don't make sales quota for three months, we'll fire you". In April you told the owner of the business and the manager of the business to stop using illegal drugs. A few days later you were fired, and your employer declined to give you an explanation beyond your at-will status.

    You applied for unemployment, and your employer stated that you were fired for making disparaging remarks about the business. (You hated your job and believed your boss and the owner were using illegal drugs, so I would not be surprised if you did disparage the business.) Your application for unemployment was denied on that basis. You have appealed the denial, and the appeal will be heard on June 19.
    Quote:

    Quoting MRSD
    The real reason I believe I was let go, was because I complained about the drug usage verbally, and my intent to join the military.

    You may well be correct that you were fired for telling your manager and the owner that they were using illegal drugs and you wanted them to stop. That would be consistent with the timing you shared.

    I see no evidence that your termination was in any way related to your enlistment. What evidence do you have of a connection, other than "I was fired two months after I told them that I had enlisted" - because that's not sufficient to prove discrimination on the basis of enlistment, and actually suggests they were happy to continue to employ you until something else happened that independently triggered the termination (you: the accusation of drug use; them: your disparaging the business to others).

    I expect that they did not merely say, in opposing your application, "He disparaged the business." Did they offer any specifics or examples? If they did, what was your response?
    Quote:

    Quoting MRSD
    View Post
    Here's what I have as far as evidence goes

    [1] Video of him the day he let me go saying he was letting me just because and wouldn't give me something in writing.
    [2] Video and pictures of drugs in the office and of him doing drugs in the office. (Smoking weed out of a bong)
    [3] Copies of berating emails he sent me throughout my tenure there.
    [4] Written Statement from the other employee who was let go (mentioned above) basically saying how like in my case, they lied in his, made up things, etc. And which he ultimately won.

    1. Irrelevant. He doesn't have to give you an explanation, let alone make statements that might trigger an argument or disturbance.
    2. Irrelevant to the claim that you were terminated for disparaging the business. Even if they admit that the bong was being used for marijuana - that is, that marijuana was used in the office and that you knew about it - it doesn't seem particularly relevant to any of your claims relative to UI.
    3. Bosses are allowed to be unpleasant.
    4. Irrelevant. This is your case, not his.
    Quote:

    Quoting MRSD
    Now, what I wish I had, but have no physical proof, is that I had a lot of emails from him and such that I had forwarded to my personal email that were suddenly deleted, if I were able to get a court order, I could subpoena Google for a log in history which would show that after I was fired, my email was accessed from their office OP about a week later. (I still have a few emails saved on my comp thankfully)

    In terms of "log history", you should not expect that Google can or will be able to provide any greater history that the one you can obtain through your gmail account or that, even if still theoretically possible, they will be able to restore any lost emails from backup.

    What would the emails show?
  • 06-08-2012, 10:30 AM
    MRSD
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    I appreciate the candor, and that's why I am here, I want to weed out any unnecessary items as to not cloud my case. In regards to wrongful termination, I think I freely admitted in my original post that even though that may have been in part or whole to do with being terminated, proving that would be a lot harder.

    Let me break it down for you and you guys let me know where to go from here.

    -Terminated from Employment first week of April for unknown reason to me, asked for something in writing saying I was being let go, was told it was because CA is an at-will state,per what my employer was telling me, was refused that in writing

    -Spoke to UI phone interviewer, told them same thing, said they let me go, told me it as at-will, and they were just letting me go. I also explained to her that I requested something in writing stating this and was refused.

    -Got a letter saying my UI claim was denied because I made disparaging remarks against my employer, doesn't say what those remarks were.


    When I asked them to stop smoking, it does pertain to me in the fact that, its against their own company policy and against CA law to smoke in the work place, but more specifically, I am obligated to take random urinalysis tests per my military obligation and could potentially fail one due to their drug usage. Again, I didn't say I think it some sort of wrong life choice, whatever they do on their own time is up to them, I don't care.

    So I guess I am at a lost on what to do in my hearing if all I have is kaput. It would come down to his word vs mine, and that's why I mentioned all the evidence I had, because as it was said earlier, the judge will probably go off the presumption that both parties are lying. And no, I never said anything publicly, on the internet, etc. that could be construed as a disparaging remark, this as a well paying job, much more then I will be making in the military, and very much wanted to keep it up until my ship date.

    - - - Updated - - -

    I read on a law firms website that if one has a lot of evidence, it would be best to submit a one page index of the evidence to the judge and let them decide what is pertinent or not. I realize the burden of proof is on them, not me. So all of this may be unnecessary is my former employer says "We terminated him because he said, x,y,z" and I say "I never said any of that your honor, they have no proof of that (assuming they don't fabricate a document) and what they are claiming amounts to hear-say. I was the highest paid and longest tenured employee at the time"

    I mean, couldn't the judge reasonably assume "Well, this is basically he-said, she-said, but the employer hasn't provided me anything to meet the burden of proof"
  • 06-08-2012, 10:57 AM
    chyvan
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    In a discharge case, the employer has the burden of proving what they say you did, and that act has to be misconduct. That's a pretty high bar. You don't have to have evidence to prove anything for the most part. You can just sit there as a passive observer if you want.

    Example: An employer can come in with a stack of irrefutable evidence to show you were the worst performer they've had since the day they went into business. So they proved you couldn't do the job, but not being able to do the job is not misconduct so the employer still loses and the claimant gets their unemployment. Your feelings many be hurt by the things your ex-employer says about you, but you'll get your money.

    Just because you asked for the appeal because of your initial denial, doesn't mean you now have the burden of proving you didn't do anything wrong. It's still on the employer. Unfortunately, the deputy intially denied you, but that is what the appeal process is for. Also, I have a personal opinion that initial denials are being used as a cost saving measure by the states because there are going to be a percentage of claimants that just don't appeal.

    I think the video of the employer not giving you a reason is good rebuttal evidence. The employer said they were doing it because of "at-will" to your face, but now they are saying "disparaging remarks." If nothing else, it would sure make me question of the credibility of the employer as to what the real reason is. What I don't know is how you can introduce that evidence. At my appeal, all the evidence had to be submitted prior to the start of the hearing so that the opposing party could review it. I'm just not sure how a phone with a video will work in that process. It seemed to all revolve around documents rather than recordings, but if you check into, you just might find a way.
  • 06-08-2012, 11:22 AM
    MRSD
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    Yes I agree with your assessment in regards to the UI phone interview/ initial denial, although I think it has more to do with, their job is to make sure both parties involved story of event line up. If not, then they deny it no matter what. I have heard of cases where the employer was willing to allow for a UI claim, but the claimant said something differing to the employer and it was denied.

    Also, my notice for my hearing makes no mention of me having to submit evidence prior to the hearing and I certainly haven't the opportunity to review any evidence they have. Even still, I don't think the employer can ask my video evidence be dismissed due to the fact that he was there, with the phone-camera, pointing towards him, it would be hard to say he didn't know it existed.

    Also I was reviewing my video, at the end of the video after about of minute of me just asking for something in writing and him essentially telling me no. He started to say things, "Well you failed to follow instruction, you constantly insubordinate our manager" in the video you can hear me asking him back "Uh okay, do you have a documented history of this" and by the inflection of my voice, you can tell this was the first time I ever heard this, same as the "disparaging remarks".

    The reason I bring this up, do think I can sort of make the case that he told me he let me go for some random reason beyond me, but now is saying he let me go for a different reason to the UI office and essentially what he is doing is making something up and hoping something will stick
  • 06-08-2012, 12:51 PM
    chyvan
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    Your taking too much on yourself. You don't have to make a case for anything. You just need to rebut the "disparaging remarks," and then stop.

    You yourself don't know why you were let go and if you can play that video, the ALJ won't be able to sort it out either.
  • 06-14-2012, 10:32 PM
    MRSD
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    So I was able to get my hands on a statement my former employer submitted to the initial UI phone call hearing and now have more in depth knowledge of what I am fighting. I have a few more questions for you guys.

    Issue #1 They are alleging that I told a new hire that "cold calling doesn't work" (Sales Job). First, I never said anything like that, and if that becomes an issue or is brought up, can't I ask the judge to dismiss it because I can't cross examine this employee (assuming he's not there). Also, should I bring up to the judge had I even said that, wouldn't it fall under "griping" per the UI Code.

    Issue #2 He is alleging that all I did all day was screw around on facebook and other websites. Mind you I was the top producer for the company, so somehow by his logic all I did was screw around all day, but somehow managed to bring in the most money for him. The only time I was on any website was during MY lunch break or 15 minute break. Should I make the argument that if this was really a problem as he is saying it was, I worked there for about 8-9 months, couldn't he have blocked those websites from the employees.

    Issue#3 He is saying that since I submitted my notice that I was joining the military and since I was leaving I thought I could slack off until I left. Again untrue, I submitted my notice late February, and March was one of my better months of working there(In fact I closed the largest deal in company history).

    In the UI paperwork he said he gave me verbal warnings, assuming the burden of proof is on him, if I just simply deny all this and all it amounts to is "he said, she said" then shouldn't I win the case?
  • 06-15-2012, 12:36 AM
    chyvan
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    You can try that approach, but I'd just go with the video.

    It's supposed to be about why they let you go when they did, not all the reasons they can think of from when they let you go until the day of the hearing.

    By the time of the hearing, that list of three things is going to grow. It's like trying to shoot a moving target.
  • 06-15-2012, 09:53 AM
    MRSD
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    That list of things is what they submitted before the initial denial. So those things are the things I am focused on, obviously anything they bring up afterwards I will just say "Why didn't you say that during the phone interview and are just bringing it up now"
  • 06-20-2012, 09:12 AM
    MRSD
    Re: Denied Unemployment Due to False Claim of Disparaging Emplloyer
    Well, just had the hearing, I feel pretty good about it, I'd say 75/25 in my favor. I'm sure when people come out of these things they are full of self-doubt so maybe I'm being more of a skeptic than I should, my witness who was a former employee who was probably a little more objective than me seems to think I'm a shoe-in, but, we will wait for the judge to hopefully agree with him.

    So, thanks for all the advice, what I ended up doing was preparing a list of evidence I had, with a 2-3 sentence summary on each piece and then let the judge decide what was relevant. Some of you guys were both right and wrong.

    The video evidence she said, was relevant, but not as much as I was thinking, and likewise, my witness, a former employee, I think was the biggest asset. He was able to testify that, yeah we were all on Facebook or other websites, including the manager, and likewise it was only during the breaks. And that this appeared to be okay with the manager and owner as they were on websites too. He also had something with him where the owners told him he should be more like me as an employee. The judge was pretty quick to shut down anything that was irrelevant, so I was surprised when she wanted to hear about my witness and, not how or why he was terminated, but was more interested in how the former employer lied to UI in that case.

    I think in the beginner though, when the employer had the opening statement, the judge kept pressing him why he fired me that day, and he said "because we hired a new guy", and she was like "there must have been something, some triggering event" and he was like "well it was from the warning we gave him two months prior to that". I kind of think no matter what the cause for termination really, once that was said, it was kind of game over. I don't know though, I'm not the expert, I'll let you all know in a week.

    Everything else was irrelevant though

    For what its worth, I tried to present my best foot in the hearing, showed up shirt/tie, answer every question your honor or yes ma'am.
    The former employer showed up in t-shirt/jeans and was 15 minutes late for the hearing.

    Something that I read, that I think is very sound advice. ALWAYS GIVE A CLOSING STATEMENT, SUM EVERYTHING UP, AND REITERATE ANY WEAKNESSES IN THEIR CASE.

    They choose to not say anything, I just simply said "Your honor, I came into work that Friday fully expecting to come into work the next Monday, by their own admission they didn't really have a reason for letting me go that day. Had I know I was doing something so grievous as to jeopardize my job, I wouldn't have done it"

    By the way, chyvan, I think you're right about CA trying to skimp on UI benefits, I can't explain it but the whole time I felt like I was having to prove my innocence rather than them prove my guilt.

    I'm not sure if this is procedurally allowed, but their opening statement, the owner pretty much went in circles and got in a tiff with the judge. She kept asking him what happen the day of my termination to cause me to get fired, and he said nothing, then she said "Sir, there has to be something, a triggering event, to causes his termination" He said 'Well, we hired a new guy" and she said, "Sir, that's not a reason to deny UI benefits" this went back and forth like 4-5 times before he said "Well, we caught him on facebook a week before"

    I didn't say it of course, but was I was thinking is the judge allowed to ask a question 5-6 times till the guy gets the "right answer"

    The other thing too was, our hearing was scheduled at 11am, they didn't show up when we got called in at 11:10'ish, we were about 5-8 mins into the hearing, when they showed up at 11:20am. I wanted ask "how is this allowed that they can just show up whenever they want?"
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