Denied Unemployment for Allegedly Carrying a Weapon at Work

[chyvan]

https://www.cuiab.ca.gov/#

Under "statistics"

https://www.cuiab.ca.gov/Statistics/...n-Jun_2018.pdf

Most recent 6 months stats. 1256 is the separation issue. Approximately 22,000 denials issued by EDD and approx. 12,000 reversed after the hearing.

While the Judge did all the talking, did you get benefits? Some judges are doing you a favor. Lots of claimants want to tell their side of the story when they just don't need to.

https://edd.ca.gov/pdf_pub_ctr/de1432.pdf

[flyingron]

[hr for me]

btw, I am not saying the employer was correct about the weapon issue, I am just telling you that is NOT a good argument based on the rest of the story. They could have terminated you even if you didnt' have that tool at all just for being in the altercation. I too am curious as to why you were even asked about having anything representing a tool on your person. Are you known to carry that MPT around on a consistent basis? The issue here is not only the MPT but the fact that you were in the altercation while carrying the MPT.

Don't know if you will win unemployment, but just know going into it with an argument isn't going to be in your best interest. Listen to what the ALJ asks and what the employer answers. Do not interrupt or try to argue. Just answer the questions asked. One of them might be whether your employer knew that you had this MPT prior to this incident. But I can almost guarantee the question won't be "do YOU believe this MPT was a legally defined weapon?"

[comment/ator]

Don't know if you will win unemployment, but just know going into it with an argument isn't going to be in your best interest. Listen to what the ALJ asks and what the employer answers. Do not interrupt or try to argue. Just answer the questions asked. One of them might be whether your employer knew that you had this MPT prior to this incident. But I can almost guarantee the question won't be "do YOU believe this MPT was a legally defined weapon?"

Strongly encourage you to listen to this advice. It's not a legal case, it's an agency hearing. The hearing officer is going to want to be in charge. The process is not supposed to be a court case, they do not expect you to be fully up on and able to argue, use legalese, quote law (employment or otherwise) to them.

The officer will begin the meeting by announcing the procedure by which the hearing will be carried out. You are not in charge. You do not get to determine what needs to be discussed. The process will be that you, as the appellant, begin by saying why you disagree with the decision. The decision that was made by an adjudicator, the initial decision. And what that comes down to is that it has been determined in the initial decision that you were discharged for an appropriate misconduct reason.

Getting into an altercation with your co-worker (whether or not either of you had a weapon) is a legitimate gross misconduct reason to terminate in almost every circumstance I have ever heard of. Gross misconduct, incidentally, means that regardless of whether the employer has a policy about something or not, any logical reasonable person would've known that what they did was not appropriate work behavior and should not have happened, even without prior warnings.

Either way, "It's not a real knife! It's not a real weapon!" is something I have a real hard time fitting in to the needed discussion of this reason for termination.

For the love of GOD, DO NOT carry any kind of weapon, knife, or bladed instrument onto state property to "show" the appeals hearing officer just how big and threatening this weapon was, even if it's the size of a safety pin! There is a large sign on their property that notifies you that carrying any sort of weapon in the state office is something that will get you in trouble. It will.

Is it possible that during this "altercation with a co worker" that you mentioned you had a knife, that you threatened to cut him/her or something like this? Else why, in the course of the intervention of the employer, did the issue of whether or not you had a weapon ever come up? Was it because your co worker said you did, and he was actually seeing that other thing in your hand, that other tool you said you actually had during the altercation, this magnifying glass thing? That's what I would want to hear, not your mumbo jumbo definition of and argument about whether this pen knife in your pocket was a real weapon. If I were the hearing officer, that's what I'd want to ask about.

That you signed up for unemployment beforehand is not an issue. Anyone can sign up at any time for unemployment. That you never asked to be paid on the claim meant that no decision was necessary on that claim, but the claim was set up and is good for one year from the date it was filed. Now that you were terminated, and re opened the claim, the decision to grant or deny benefits will be based on your most recent reason for separation. Which is what is happening.

Contrary to what you may be told by some, all decision makers at the early stages are not terribly incompetent and totally against the claimant, as all alj's are not totally sympathetic and apt to grant you benefits regardless. It is not to your benefit to let them find out you believe this to be the case. You do need to push on to the next level if denied at this level, that's a given. But you also do need to be cooperative and professional in any and all hearings at all levels. It is very rarely to your benefit to refuse to provide information in a hearing, or to fail to answer the questions or follow the directions of the hearing officer.

So you were terminated after the altercation with the co worker. If the employer specifically says in the information they gave to U.I. that you were terminated not for this altercation, but for carrying, using, having on your person a weapon, in violation of company policy, and NOT for the altercation with the co worker, then they'll want to talk about the circumstances under which they found out about this supposed weapon. Listen carefully and answer all questions they may ask.

But your quoting legalese about whether or not this thing you had in your pocket meets the legal definition of weapon or not is not going to get you any points. If you want to show the hearing officer how big the weapon was, take a picture of it (next to a ruler) and ask that this be submitted into evidence. And don't camp on that side argument about whether or not it is a weapon.

[cdwjava]

What is the legal definition of 'weapon' in California? ( please keep in mind that nearly ANYTHING can be USED as a weapon-
cite a legal statute or something!)

What is or is not a weapon can vary by situation.

There are a number of instances in case law that define what a "deadly weapon" might be, but the definition of a "weapon," can be most anything including fists, feet, a head, etc. It all depends upon the use or intended use. I can cite a handful of the "deadly weapon" cases if you really want to read through them, but I cannot see how they will do you any good.

As so many others have stated, do not hang your hat on what a weapon is or is not. You have other avenues to purse.

[RJR]

4rock, the following case law is for Criminal Prosecution purposes ONLY, period. Page 3 at DISCUSSION, CA Jury Instructions:

https://cases.justia.com/california/...?ts=1542828921

If I use a screwdriver to jimmy a lock, that is possession of criminal tools, as an example, as every single possible item that can be used as a criminal tool can not be listed, get the point! The same with "weapon", you could list a thousand items that may qualify under the Rules of Statutory construction if something is not "specifically" defined!

[Mr. Knowitall]

Statistics that supposedly relate to the overall success of filings have absolutely no relevance to what may or may not happen in a specific case.

Did the other worker in this case accuse you of threatening him or her with a knife? If so, the confirmation that you had a multi-tool, which if typical includes at least one knife blade, would lend support both to the accuser's claim and to the treatment of the multi-tool as a weapon. You don't need a special definition to determine whether or not an object that is used to threaten or injure somebody is a weapon, because you would instead look at how the object was used.

[lvs4rock]

wow, thank you ALL so MUCH for taking the time to respond!!!! I have been meaning to return here (as promised in my last reply) in order to 'refute' some statements made by others that I interpreted (at that time)as if I was under attack. Whether or not that was the case is irrelevant: what IS relevant is that i've had time to 'chill' and others have had time to further comment and advise. For which I am truly grateful. I have that tendency to 'forget' how difficult it is to "see the forest for the trees"..... thanks all for helping me 'see' that the forest IS trees-and being willing to help lead me through.
@chyvan: thank you for the links. And the giggle : ...".some judges are doing you a favor...." you're absolutely correct (lol but you knew that!)

@ flyingron: lol good one!

@ hr for me : succinctly, and effectively, 'put'. Thank you

@ comment/ator:
again thank you. well-reasoned, and -written. Are you available for my hearing? (j/k!) And the warning/advice re: taking photo w/ruler etc: (damn,) I think I probably would have unthinkingly carried the item in question into the hearing in order to show the judge.....! You are spot-on correct and that would definitely have been a problem. Thanks for pre-emptively saving my @ss. Guess I need to change the way I think, just for starters. Oh, and NO! absolutely never made any sort of threat of ANY kind.
Further ('dialogue' it was not) response or interaction from me (after I refused to physically engage, the taunts started: "come on, let's go, right here, why not....") consisted mostly of my statement that I was trying to act like a responsible professional and "we could finish this after work" and "la la la la". When the seemingly endless tirade delivered at top volume aimed at inciting me to violence started getting to me-singing "La la la la" only goes so far! -I had a sudden moment of clarity: by responding in any way at all I was, in effect, letting them control me. It was obvious they were going to continue trying to bait me with the trash talk- so I "quit". To help distance/distract myself as well as make it obvious that I was ignoring their efforts I started examining my pocket change. It got a lot quieter for a few minutes, then from the corner of my eye-(hell yes I was watching, wasn't going to get blind-sided) I recognized an "A-ha!" look and with a snicker out came the phone with a clear statement that started out " oh yeah I got it -I'm...." then they turned their back on me, hunched over slightly (maybe to better see the phone screen?) and went quiet for a moment, I guess until someone picked up on the other end, then made some words audible..... It was NOT a look of fear-you don't turn your back on someone you fear .....I heard just enough to cause me to wave the magnifier around shouting 'take a picture are you blind!'
.....sorry, there I go 'explaining ' again...
I am currently writing the appeal.....

sorry I meant to review and edit that last reply, then realized it had run pretty long-winded so I'll say the rest of my thanks and give my fingers a break while I try to construct the appeal (while keeping in mind all the sage advice i"ve been given as well as the instructions from EDD).

@ cdwjava :
I (now) agree about not "....hanging (my) hat on...weapon or not...." : a broader perspective is what I came here for (even if that wasn't clear to me at the time). I was too focused on the answer to the wrong question.

to EVERYONE who has answered:

Consider me convinced. And grateful for the forced change of (direction)!

However, that change of direction leaves me at a loss as to how to word the appeal- the 'other avenues to pursue"....I' seem to have _lost_ them somehow.

" To Appeal, you must do all of the following:
A. Complete...or write a letter stating that you want to appeal this decision......explain the reason why you do not agree with the department's decision..... "

I don't agree with the decision, naturally! But it doesn't seem like "I didn't start the fight, exactly....." or " I SHOULD have lied about what was in my pocket -if I had NONE of this would be happening, but I told the truth like an idiot because that's the kind of person I am!" - is going to be an acceptable 'explanation'.

@RJR : Agreed.

@Mr. Knowitall : Agreed.

FOR THE RECORD :

No I was not 'known' to carry anything other than the magnifier and a 'rolling' lunch bag (that I'm aware of). NO! The 'item in question' DID NOT ever come out of my pocket until my boss got there and she asked me. I don't know, only suspect,_ why_ she asked me.
You might ask why I did not lie about what was in my pocket (even though I could have gotten away with it because there was no way to prove the lie), and, by so doing, could have avoided all this mess? I _won't_ lie. I spent my life becoming the person that I am today, and that person does NOT lie, not even (especially!) a 'little white lie' (don't believe in 'em), even if it's the easy way out. Call me an idiot (my friends all are and they're not shy about it: TBH, I'm kinda agreeing with 'em a little ), whatever; .... I guess for the same reason I'm telling the truth here, which is:
I never, by word, gesture, or deed _of ANY kind_ , threatened the other employee in ANY way, shape, or form. (what I'd LIKE to do is inadmissible, fortunately)
Some readers, probably most, are not going to believe me. Call me a liar. I'm not exactly ok with that (dammit) but I don't have a way to change their minds and they are not the one I have to look at in the mirror and live with.
I know the truth. Unfortunately it doesn't look like the truth is gonna help me here.

[chyvan]

However, that change of direction leaves me at a loss as to how to word the appeal- the 'other avenues to pursue"....I' seem to have _lost_ them somehow.

I told you how to write the appeal. It is an appeal REQUEST.

Being "wrong," is a reason.

What you write helps the employer more than it helps you because if you say why the decision is really wrong, then the employer will know your strategy, and just might come prepared.

However, what I wrote will get you a hearing. The first hearing is free for the asking, but when your employer reads it, it makes you sound just nutty enough that the employer might think, "ho, ho, ho, he won't stand a chance with an appeal written like that. We already won once," and then you hope the employer doesn't show up.

CA has lots of in-person hearings. Hope you get one, and that any employer witnesses are very busy that day. It's really easy for an employer to appeal on a telephone hearing, but the in-person ones take a real commitment.

[lvs4rock]

@chyvan:
done. as suggested. I'm guessing, from what the instructions and procedures outlined on the letter EDD sent me indicate, that I'll probably get an 'in-person' hearing. Unfortunately my employers' organization keeps a string of lawyers on staff so chances are they'll show.... but what have I got to lose, right?

I must reiterate, both to you and to all others who took the time to read and respond: you have my heart-felt gratitude and appreciation for both your time and your attention.

I will keep updated as possible- maybe not as timely as might be as my living situation is about to change drastically. haha wish me luck!
Until then, keep up the great work.