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  1. #1

    Question Denied Unemployment After Termination for Supposedly Disparaging My Employer

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

    So this situation is a little strange and I could use some advice. My initial Unemployment Claim was denied by the EDD of California because the company stated that I was fired due to "disparaging the company". The letter states that due to the claim of the employer I am in violation of Section 1256 which reads:

    [*]"An individual is disqualified if the department fends he voluntarily quit his most recent work without good cause or was discharged for misconduct from his most recent work."

    This was news to me and not the actual reason I was fired. I see this rationale as a post-hoc justification made in bad faith to save the company money, but also as a product of the "sloppy" way I submitted my initial claim (I stated I was fired because, "the CEO thought I was bad for culture", which was a true statement in a narrow sense, but neglects all the relevant context.)

    The same day I received notice that my claim was being denied I texted my former direct supervisor (who was the director of operations for the company) and she responded as follows:

    "From what I know, the state will reject unemployment claims if the person filing was fired for cause. Based off of what you wrote, something about the CEO deciding you were bad for culture, the state opens up an investigation into the details surrounding why you were fired. This means that anyone and everyone involved has to provide information. Joanne managed the case, so I have no clue how the conversations went down, only that when the agent looking at your case required information, we need to comply and answer the questions or risk getting in trouble by the government. Jeremy (The CEO) had said in passing something to the degree of you shooting yourself in the foot by saying the CEO fired you for culture instead of just saying you were laid off because you were no longer needed in the role. I don't have experience with unemployment claims though so that's about all the information I can give you. Both Jeremy and I were not opposed to paying unemployment so this isn't coming from the company FYI. So if you appeal, I would suggest just researching a little bit more on how you should phrase your claim because California is generally on the employee's side."

    Now, my first question is, can I include this text message exchange as part of my appeal? This text seems to directly undercut their claim that I was fired due to conduct (i.e. disparaging the company) and seems to imply that my denial of benefits is more the product of how I phrased my claim and the opportunity it presented my former employer.

    Now, I have written a true accounting of what led to my firing and want to make it the basis of my appeal (as it speaks directly to what actually happened and why).

    The condensed back of the book version is as follows:

    When I was hired (as an "Operations Associate" for an ecommerce business with 10 million annual revenue) the company had informed me that there would be annual raises as well as performance based raises. As a result of this incentive over the first year I took on three major management responsibilities that exceeded what I was hired to do. Eight months into my employment the company informed us there would be no more annual raises and instead they would be instituting a commission system (which amounted to roughly 1% on sales made). This was problematic because I would not be getting the annual raise that was four months away nor would I get commissions for my first 8 months. A few months later they decided to remove the performance based raise as well and this made things even more problematic because the management roles I had taken on were not sales roles, so every second I spent doing those things were seconds I was spending not producing sales and thus not earning more money.

    Eventually I had a meeting with the CEO where I stood my ground and requested my performance based raise. He was highly emotional and made me very uncomfortable before denying me that raise (he also called me entitled, conflated some of my business development efforts with a former employee who tried to steal from him years before, and generally just berated me throughout). Immediately following this meeting my direct supervisor told me in our followup meeting that she thought what the CEO had did was very unprofessional and that he had told her he thought by "being aggressive" he could get me to continue to do the extra roles I had taken on at my own initiative and forget about the performance based raise. He did not speak to me for three months following this meeting and in that time I remained very uncomfortable. Eventually in early March he came to my office and asked me for a schedule on when the next Facebook Live broadcast would be (one of the projects I developed and managed that was non-sales related) and I explained that I had not made any such plans without the performance based raise because I was focusing on sales so I could earn more money. To this he replied, "If you ask for more money again you can get out of this office right now."

    A week later I was informed by the Director of Operations that I was going to be let go, but she asked if I would be willing to stay on for a few weeks so I could write SOPs for my management responsibilities and train my replacement. I needed the money so I agreed. When I asked her what the CEO's justification for firing me was she said that he thought I was "Bad for Culture". When I asked her if she thought that (she had been routinely praising my work and often told me I was highly professional) she told me that the reality was that the CEO preferred to hire employees who "had no other options" and would "not fight for more money".

    That is the long and short of what happened.


    Now, I know the company submitted testimony backing up their claim that I "disparaged the company" as that was told to me by the EDD agent when she called me for her investigation. To the extent that I did disparage the company I did voice my discontent regarding the changes made to the payment structure and also how uncomfortable my meetings with the CEO had made me (again, he was HIGHLY emotional, red faced, said some pretty choice things to me -- called me "entitled" for instance). Does that rise to the level of "disparagement"? Also, it may be worth mentioning that I worked for this company for 18 months and there had been other employees there for 5+ years. It was not uncommon for some of these employees to openly talk shit about the company, the management, how the culture was awful there. Again, my supervisor would often tell me I had a "calming influence" on the office and that I was highly professional as a counterpoint to these employees.

    So given this information, can anyone offer me some guidance on how I should appeal? Can I include the private text message that I quoted at the onset in my appeal? Would it be worth my while to do so?

    The company is small and no one left during my 18 month tenure. I do not believe I will be able to get an existing employee to submit testimony on my behalf, despite the fact that I was popular, respected, and well liked, as that would likely be a death sentence to them at the company. It's also worth noting that I had been told by other employees that the company "never fires people" as the CEO hates to pay unemployment. I do see this as a back-handed, bad-faith effort on his part to avoid doing just that.

    I appreciate any help or guidance anyone can offer to me in this difficult time.

    Thanks for reading.

  2. #2
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    Default Re: My Ue Claim in California Was Denied Because Company Claimed I "Disparaged Compan

    Your text proves nothing. It even says "...Joanne managed the case, so I have no clue how the conversations went down..."

    Your entire appeal need to be that the misconduct wasn't the reason you were told you were terminated. As for the the misconduct. Who "disparaged the company" to?

  3. #3

    Default Re: My Ue Claim in California Was Denied Because Company Claimed I "Disparaged Compan

    Thank you for the response!

    So you don't think her saying that the CEO said I "shot myself in the foot" by how I submitted the claim and then admitting they had no issue with me getting unemployment wont be helpful in any way? I texted her again today to follow up and was more direct. In text I told her I think that their claim that I was fired for "disparaging the company" was not factual. I am waiting to see if she responds and how as that may more directly speak to the core of the issue. For a little more additional context, the "Joanne" referred to in the text is our HR rep (she runs her own HR business and is on contract with the company -- not an employee). I emailed her the day I got the denial (as I was advised to do so, despite the fact I wasn't sure where she stood insofar as still being a resource I could call upon since I was a former employee) and she has not gotten back to me.

    As far as who I voiced my dissatisfaction too I really don't know. I honestly had to search my thoughts for anything I could think of that would justify their claim that I disparaged the company and that was all I could come up with. I had a close co-worker in customer service and our offices were adjacent. She was one of the ones who had worked there 5+ years and was also one of the coworkers who routinely complained about the company and it's likely I made those comments to her. I know her socially and told her about how my claim had been denied and that testimony had evidently been submitted against me and she was shocked and wondered if it was the CEO who provided the testimony himself. But again, I know this is not the reason I was fired. They never mentioned anything about this and in fact often said the exact opposite (I was professional, etc.). So I really don't know what type of testimony they have to support their claim -- I am even a little concerned they would gin some up :/

  4. #4
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    Default Re: My Ue Claim in California Was Denied Because Company Claimed I "Disparaged Compan

    You don't understand the process of EDD. You have a $12/hr clerk that probably has to process 10 UI discharge claims an hour. I can assure that minutes were spent evaluating your claim.

    To appeal, you just submit, "the determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled." That will get you a hearing.

    This Joanne person probably isn't even a first-hand witness to any events regarding your termination. From the sounds of things, I doubt your employer is even going to take the time off work to attend your UI hearing.

    You save all your words and evidence for the hearing. Personally, your story is probably along the lines of "I was fired," then stop talking, and you don't have any evidence, and I wouldn't bother with the text message.

    54.9% of EDD denials are overturned on appeal after a hearing. That means that the EDD workers that make these decisions are wrong more than half the time.

    Being "fired" is qualifying, being "fired because . . . " is where the problems start. Don't tell this story. For the denial to stick after an appeal, the CEO is going to have to provide first-hand testimony of what happened, and he sounds too busy. In the alternate, you can tell some too long story that just confuses people and have it act as an admission.

    http://www.cuiab.ca.gov/Documents/forms/27Ways.pdf

    Pay attention to 11, 15 and 16. That's what your employer needs to do. Until they do that correctly, you can sit back an enjoy the ride. The burden is not on you to prove that you didn't do something. However, you can admit yourself right into a denial if you talk too much like "I was late because my kid was sick." At that point, the employer no longer has to prove you were late (a real head banging moment when you find your employer isn't at the hearing), and now you have to prove that your kid was sick and hope that excuses the tardy.

  5. #5

    Default Re: My Ue Claim in California Was Denied Because Company Claimed I "Disparaged Compan

    Thank you very much for your response. This was super helpful.

    So your recommendation would be, where the Appeal Form asks for the Appellant Statement, I should simply write: "The determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled."?

    It does list Instructions for this section which state that I should "Explain the reason for your appeal and why you disagree with the decision. If required, attach additional pages to this form and write your name and Social Security number on each page."

    You are certain by submitting the language you suggest this will automatically trigger an appeal?

    Also, for the appeal should I come prepared with a detailed statement that recounts my version of events as to why I was fired? Perhaps even copies of the text message exchange?

    Thank you so much for this document as well. I am reading it now.

    I really, really appreciate your help.

  6. #6
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    Default Re: My Ue Claim in California Was Denied Because Company Claimed I "Disparaged Compan

    I would write "I disagree with the determination dated....."

  7. #7
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    Default Re: My Ue Claim in California Was Denied Because Company Claimed I "Disparaged Compan

    Quote Quoting PayrolGuy
    View Post
    I would write "I disagree with the determination dated....."
    Quote Quoting sonofkuanti999
    View Post
    "The determination dated mm/dd/yy is wrong. I want an appeal hearing scheduled."?
    I would write what I said. Yes, you can write what Payrol guy says, but the hearing is free for the asking. The employer gets a copy. Saying "wrong" makes you sound just nutty enough that the many employers will think, "this guy doesn't stand a chance with an appeal written like that," and be further incented to skip the hearing.

    Quote Quoting sonofkuanti999
    View Post
    the reason for your appeal and why you disagree with the decision.
    Being "wrong" is a reason. People waste HOURS writing these things. Don't do that. The real magic happens at the hearing with testimony and evidence. Nothing you write will win you a hearing.

    Quote Quoting sonofkuanti999
    View Post
    You are certain by submitting the language you suggest this will automatically trigger an appeal?
    You could write, "I APPEAL!!!!" in crayon on a grocery bag. This first-level appeal is free for the asking.

    Quote Quoting sonofkuanti999
    View Post
    should I come prepared with a detailed statement
    No. Testimony is evidence, you reading from a piece of paper, not so much. The employer will be talking first if they even show up. There is no way what you write will make sense with you not knowing what the employer is going to say.

    Quote Quoting sonofkuanti999
    View Post
    Perhaps even copies of the text message exchange?
    You can have them with you, but while waiting for hopefully in-person hearing, when you see that the employer isn't coming, do NOT submit them. I don't think they are relevant. The way I read your story, the CEO fired you. He needs to provide the reason and proof, and any failure that the author of your text message gave isn't first-hand, and is hearsay.

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