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  1. #9
    Join Date
    Jan 2015
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    1,142

    Default Re: Employer Stated in Writing That They Would Not Appeal Unemployment Benefits

    This appeals hearing you are about to go through is NOT rocket science. You do not need to familiarize yourself with case law or the laws pertaining to unemployment in the state of CA. Believe me, the workers at unemployment know the law, they will not let you cite it or argue with them. This is an agency hearing, not a court. You do not go in and go all legal on them. The hearings are set up so that a person can represent themselves. They will just want to hear from you what happened. They'll ask the pertinent questions. Attempting to overprepare or to baffle them with b($%! will not serve you well at all.

    What you do need to do is file a timely appeal, requesting a hearing. If you have the option, request an "in person" hearing, as the unmotivated employer is much less likely to participate in a hearing if they have to actually show up in person. As chyvan says, you don't need to say anything in this appeal except that you wish to appeal, you do NOT make your argument here. You are not making an argument anyway. Even if the employer does not show, the case will still be heard, and a decision will be rendered, so you show up, make a good impression, be polite, professional and brief. Listen carefully and do exactly what the appeals officer tells you to, follow their directions.

    Between now and the time the appeal is heard, continue to make your weekly certifications for benefits after each week passes as you have been instructed. If you are approved later, you'll be back paid for any week you've certified for, but if you don't keep making the certs, you will not be backpaid.

    Now, memorize the phrase, "I did the job to the very best of my ability." When you are in the appeal, you will only tell your story of what happened, why you failed to perform your job to the satisfaction of your employer. You do not need to cite law or quote them the definition of misconduct. They know that. They will be listening for the factors that will or will not make your situation with the company work related misconduct.

    They are looking for: Did you have the training, ability, and potential to meet the expectations of the employer? Was the business reasonably there to be gotten? Did you show up each day and do your best, and genuinely try to achieve the goals that were set up for you? When you received the warnings about your performance, did you try your best to step up and increase your performance? That's what they're looking for. I'd stay away from the sympathy angle, they don't give a rats butt how bad you NEED the unemployment benefits, how dreadfully you've been treated, how traumatized you've been by the unfairness of this employer, etc.

    An employer, particularly in a sales type job, can pretty much demand anything they want to of you. They can demand that you "spin straw into gold" as the saying goes. They can ask that you close fifty contracts a week, or sell fifty vacuum cleaners. They can demand whatever. But if, doing your best, you couldn't do what they wanted, then that's not misconduct. Perhaps you lacked the talent to do what they asked. Maybe the business was not there. Maybe you just didn't have the ability. But not being talented is NOT misconduct.

    If, after being warned, you gave up, and spent your time with the company sleeping under your desk, playing on the computer, sitting around complaining about their unreasonableness to other co workers, that would not have been doing the job to the best of your abilities. Poor performance is a hard thing to keep someone from drawing benefits over, but it depends a lot on whether you convince the unemployment system that you did your best.

    The reason the employer truly doesn't care much about whether or not you're approved is that you didn't work for them long. If you have a claim set up monetarily, it will mostly be coming from work you did in prior quarters for other employers. They dumped you quickly, which greatly cuts your unemployment tax liability for them. That they said they wouldn't contest your claim basically means NOTHING to the appeals process and shouldn't even come up. As it has been pointed out, their contesting or not contesting is not the decisive factor in your being approved for unemployment anyway. It comes down to whether you are out of work through no fault of your own.

    Even if they don't show up for the appeal, if you got in there and told the appeals officer, "I was so depressed by the warnings that I just kind of gave up! I was just phoning it in. After all, look what they did to me!" then you very well might be considered to have committed work related misconduct. What they want to hear is that you showed up, did your best and still were not able to please the employer, who then terminated you for lack of production. Being unable to do what they asked, when you were doing your best, is not misconduct. But giving up, quitting the job, laying out, whining about it a lot, that's something you had a choice about. That's what you want to convince the appeals referee you weren't doing.

    You do not need a copy of what your employer said. It is entirely possibly they didn't say anything. You will not be given an opportunity to refute their comments, even if you get a copy and they did say something. That's not necessary. All you do is keep it brief, say repeatedly, 'I did my very best. I did not quit the job. I tried very hard. I did not want to lose my job."

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