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  1. #21
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    Oct 2008
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    12

    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    not sure whether I should post this question as a 'reply' or if I should start a new thread....guess I'll try another 'reply' to see what (if any) response I get.

    Question: I would appreciate some input on the best course of action to take. I sent the request for a hearing and am waiting for date/time notification. The problem is....having agreed that pursuing the 'weapon/not weapon' definition would be a mistake I now have no clue as to what my 'reason for disagreeing with EDD's denial' of unemployment benefits is. Hell yes I disagree with the judgement -I NEED those benefits!!!...but...I 'broke a reasonable employer rule' (!) and admitted it to EDD in phone interview.... so, technically, without my 'weapon definition defense' I don't think I (now) have a leg to stand on.
    It's pretty much a given that my former employer will show at the hearing- accompanied by at least one 'hired gun' (they have a string of them, full-time). And there I'll be, COMPLETELY defenseless (lol -such bad taste but have to pun myself: can't even bring my "knife" to that gunfight!)hahahaha I think I'm cracking up.
    I'm desperate. Is anyone aware of an attorney firm in Sacramento that would do an initial consult for free? Would this be advisable? I have no job, no immediate future prospects, no savings or well-to-do relatives, soon to have no home (owe going on 3 months rent and roomie is selling the house). What attorney is going to take me on?
    Should I just find a place to park my future 'tent'?


    ("Anxious" doesn't even come close to describing my state of mind right now.)

    To anyone who has read all this: thank you. And to those who have/will reply: you have my undying gratitude for any useful advice.

  2. #22
    Join Date
    Jun 2006
    Location
    Massachusetts
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    23,900

    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    Since unemployment is not a needs-based program, it doesn't matter how badly you need the benefits; that does not factor into the appeal. The ONLY thing that matters here is, were you fired for a reason that does, or does not, disqualify you under your state's laws. Disagreeing with the decision because you need the benefits isn't going to do it.

    We can't provide referrals here, sorry.

    I have to admit that I'm having trouble myself coming up with a valid defense. What was the altercation with the co-worker all about?

  3. #23
    Join Date
    Mar 2012
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    1,324

    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    Quote Quoting lvs4rock
    View Post
    I now have no clue as to what my 'reason for disagreeing with EDD's denial' of unemployment benefits is.
    This isn't how it works. This is NOT your job. As a fired claimant, the ALJ is going to start with the employer.

    They are then going to most likely use the 6 elements I linked to earlier because this does sort of sound like a rules violation. The judge is going to go though each of the items in the list, and see what the employer brings to the table to back it up.

    The judges don't like employers just, "saying it." If there was a written policy, they want to see it, so they can read, and interpret it in YOUR favor. They want to know HOW you knew about the policy. If it comes from a handbook, the judge is going to want to see the acknowledgment that you got it (or you can admit to it. Maybe you already did.)

    Taking a picture of the pen knife with it's various implements against a ruler was a great idea for evidence from you, but that's really about all you're going to have other than your testimony that you had no clue you were doing anything wrong.

    Quote Quoting lvs4rock
    View Post
    I 'broke a reasonable employer rule' (!) and admitted it to EDD in phone interview.... so, technically, without my 'weapon definition defense' I don't think I (now) have a leg to stand on.
    You don't know if the rule was reasonable. You don't even necessarily know the exact wording of the rule. UI is liberal to grant, narrow to deny, and in CA, those ALJ's bend over backwards. If the employer's rule doesn't say "pen knifes," chances are it's going to be concluded that you broke no such rule because it doesn't exist or was ambiguous.

    Quote Quoting lvs4rock
    View Post
    It's pretty much a given that my former employer will show at the hearing- accompanied by at least one 'hired gun' (they have a string of them, full-time).
    Based on what? I used to think that employers were really aggressive in fighting UI claims, but with the hearing recaps I get, I can't believe how many employers don't show up for CA's in-person hearings. Think about how busy your boss is, where your work location is, where the hearing is at, and the time of day. Now, add in travel time to and from, and most likely an hour at the hearing. Can your boss really afford to be gone that long without the place falling apart?

    Quote Quoting lvs4rock
    View Post
    And there I'll be, COMPLETELY defenseless (lol -such bad taste but have to pun myself: can't even bring my "knife" to that gunfight!)hahahaha I think I'm cracking up.
    You do have a defense - that you had no clue that pen knifes were included in the policy.

    Did you even know this policy really existed prior to this incident. Let's say there was a policy against wearing green socks, but you didn't know it. The employer can prove the policy existed, but if they can't prove that you knew about it, you can get UI even if you did wear the green socks.

    Have you gone to go look at the hearing file/packet yet? There is a wealth of information in those files if you know what you're looking for. The file can tell you how hard the employer is fighting your claim or if you did to yourself.

    I worked a thread where a bank employee was fired for cash shortages. When she got her file, there was NO response from the employer. There were UI worker notations that the employer was called THREE times and never called back. The claimant was denied because of what came out of her own mouth. As predicted with the nonresponse, the employer was not at the hearing. The claimant explained that she was given her cash drawer at the start of her shift by the assistant manager and she was not allowed to count the money before serving customers, and even though she was fired for cash shortages, she doesn't know for a fact if she caused the shortage if the assistant manager was the one with sticky fingers. She won.

    You might win too.

  4. #24
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    Oct 2016
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    2,878

    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    Your only defense is that you had no idea that your knife would be considered a weapon. It won't hurt if you can show that many people carried such a knife or that it was regularly used in doing your job.

    Also, do not be scared of the other side having lawyers representing them. The hearing is designed to be non-lawyer friendly and I've seen people I know to be good lawyers hurt their case in UI hearings because they tried to "lawyer" too much.

  5. #25
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    Mar 2012
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    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    Quote Quoting PayrolGuy
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    It won't hurt if you can show that many people carried such a knife or that it was regularly used in doing your job.
    Secondary to this, there is usually that one staff member that has the paper plates, plastic utensils, and KNIFE to cut the office birthday cake in their desk drawer. This isn't as bleak as you seem to think it is.

  6. #26
    Join Date
    May 2014
    Posts
    188

    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    I don't buy it. I don't buy that the OP was not contributing to the altercation. I don't believe that there wasn't a reason the boss asked him if he had a weapon. His story rambles on so much, I often had a hard time following what he was saying. I believe his chances of winning any case is going to be difficult.

  7. #27
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    Guy, I agree with you, but I also agree that IF the OP has any chance at all, chyvan's suggestion is probably his best bet. It's a weak defense at best, but it's pretty much all he's got.

    Will it work? I don't know. Maybe. It wouldn't if I were the one making the decision. But I can just barely see it going either way.

  8. #28
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    Oct 2016
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    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    Quote Quoting Guybrush
    View Post
    I don't buy it. I don't buy that the OP was not contributing to the altercation. I don't believe that there wasn't a reason the boss asked him if he had a weapon. His story rambles on so much, I often had a hard time following what he was saying. I believe his chances of winning any case is going to be difficult.
    I agree but that isn't what the OP last asked which was simply how to defend himself in the hearing.

    We haven't heard both sides of the matter and have seen none of the documentation. But if he has a chance in the hearing it will be with the argument chvy and I put forward.

  9. #29
    Join Date
    Jan 2015
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    1,135

    Default Re: In California What is the Legal Definition of a 'Weapon' As It Relates to Employm

    My suggestions are that while using the stories suggested by the others, in the first place, this is a person who should never miss a chance to SHUT UP. In other words, be very precise in what you say happened, be very low key, absolutely NOT argumentative.
    Listen very carefully to any questions you are asked and answer them concisely and respectfully. It does not matter that they're bringing in "hired guns" that may or may not mean anything. This is just an agency hearing. It's not a big dramatic criminal court proceeding where being over represented is a huge advantage. It is set up to be quite simple. You speak, they speak, you can ask questions, they can ask questions, either or both parties may be lying, the officer is supposed to go with the "more believable" of the two parties. The hearing will be recorded, you'll be sworn in, but there will be no objections, no cross examinations, no high level court case going on here.

    An attorney is not needed, is not worth it for the amount of benefits you may or may not be approved to drawn and what they'd cost you, and may not know a bit more about unemployment insurance than anyone on here could pick up by reading the statutes, without their any experience in the particular area. They do not usually help too much, and would by NO means be worth you rushing out and hiring one.

    If you are not approved for benefits in the hearing, you can always appeal beyond. But your best bet in ANY case is to be very quickly searching for new employment. Unemployment insurance, even if approved is not an on going source of income, it is seldom enough to keep you as well off as you'd be working at pretty much anything, and it is NOT based on how badly you need it. DO NOT even mention this or bring it up. Instead, mention how much you tried to do your job to the very best of your ability, how you did not intend to have a problem and lose your job, how you tried your best to avoid this confrontation, etc.

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