Little Tipsy at work

[Chyvan]

I suppose that's one way to admit you were wrong.

I wouldn't do that. I've had other claimants that in all probability shouldn't have gotten UI use this very technique and some even succeeded at the initial determination stage. However, I don't have a lot cases like this where I encounter the claimant BEFORE they fill out that UI application, have the phone interview, or write what they think is an appeal, but it's really a REQUEST for an appeal.

https://scholar.google.com/scholar_case?case=10923107267194894963&q=ca+unemployment+benefit+year&hl=en&as_sdt=4,5&as_ylo=2015

This case wonderfully illustrates the point I'm trying to make. The only reason that Robles was initially disqualified and continued to have problems through three more appeals spanning nearly six years is because of what HE wrote and said. Now, it's possible that his employer might have participated had Robles said nothing, but at least in that senario, the employer would have been doing it's job, and not the claimant doing it for the employer.

I suppose if those that disagree with me want to do it commentator's way, then it's your UI claim, and you can do what you want, but knowing that there are claimants that ruin it for themselves, when they didn't need to, I wouldn't be so quick to tell claimants her way is the only way or even the best way.

 

[quincy]

I wouldn't do that. I've had other claimants that in all probability shouldn't have gotten UI use this very technique and some even succeeded at the initial determination stage. However, I don't have a lot cases like this where I encounter the claimant BEFORE they fill out that UI application, have the phone interview, or write what they think is an appeal, but it's really a REQUEST for an appeal.

https://scholar.google.com/scholar_case?case=10923107267194894963&q=ca+unemployment+benefit+year&hl=en&as_sdt=4,5&as_ylo=2015

This case wonderfully illustrates the point I'm trying to make. The only reason that Robles was initially disqualified and continued to have problems through three more appeals spanning nearly six years is because of what HE wrote and said. Now, it's possible that his employer might have participated had Robles said nothing, but at least in that senario, the employer would have been doing it's job, and not the claimant doing it for the employer.

I suppose if those that disagree with me want to do it commentator's way, then it's your UI claim, and you can do what you want, but knowing that there are claimants that ruin it for themselves, when they didn't need to, I wouldn't be so quick to tell claimants her way is the only way or even the best way.

Your link does not work (for one thing, you left out "Robles") and I do not think the case says what you want it to say. In fact, I believe it says the opposite of what you want it to say.

Here is a direct link to Robles v. Employment Development Dept, 236 Cal App 4th 530 (2015): http://scholar.google.com/scholar_c...nemployment+benefit+2015+hl=en&as_sdt80000006

A brief summary: Robles was terminated for trying to use his "employee shoe benefit" to purchase shoes for a needy friend. Robles was told he could not use his shoe allowance in that way, so he didn't buy the shoes for his friend. He explained to his employer that he was unaware that he could not use the shoe allowance in this way. His employment was terminated anyway.

EDD denied unemployment benefits for reasons of misconduct (violation of company policy) but the denial of benefits was without any employer information being provided to EDD. This is contrary to the Unemployment Insurance Code, Section 1256. Under the Unemployment Insurance Code, Section 1256: "... [a]n individual is presumed to have been discharged for reasons other than misconduct ... unless his or her employer has given written notice to the contrary ..."

So this was an EDD error.

In addition, the Unemployment Insurance Code, Section 1256 states ".. [a]n individual is disqualified for unemployment compensation benefits if the director finds that he or she ... has been discharged for misconduct connected with his or her most recent work .."

The Court stated in Robles: "After reviewing relevant precedent, we concluded that employee behavior constitutes misconduct for purposes of section 1256 only if it somehow demonstrates culpability or bad faith ... the element of culpable intent has not been established. First, Robles did not try to hide anything ... Robles registered his regret and assured the supervisor he would comply ..." (bolding added)

The Court held: "Roble's conduct in this case - which evinced at most a good faith error in judgment - was insufficient as a matter of law to support a finding of misconduct within the meaning of section 1256."

Robles was awarded withheld federal extension benefits, costs and interest.

I do not see how you are applying this to leo9498 and what he has written in his post. The fact that leo9498 works (worked?) at a Native American casino also cannot be ignored.

 

[Chyvan]

So this was an EDD error.

But look where the error started. "The EDD's `Record of Claim Status Interview Misconduct' reflects no employer information about the incident; indeed, the EDD investigator did not speak with the employer and indicated a message was left for the employer to call within a 535*535 certain timeframe, but the employer did not return the call."

Robles was denied initially and for three appeals because of what he said by himself. Most any other claimant would have given up after the first hearing, a smaller percentage after the board of review, and I've never seen a thread where anyone went to court, let alone the court of appeals. This case says exactly what I think it says: "let your employer do their own dirty work at getting you denied for benefits."

 

[cbg]

You are still assuming facts not in evidence and basing your answers on those assumptions. Something you tend to do a lot, btw.

And didn't we establish elsewhere that you are NOT an attorney, NOT an HR professional and your entire, "extensive" experience with UI claimants is approximately three people that you offered advice to? That you do not, as a matter of fact, have professional experience with UI and do not make your living with this?

 

[quincy]

But look where the error started. "The EDD's `Record of Claim Status Interview Misconduct' reflects no employer information about the incident; indeed, the EDD investigator did not speak with the employer and indicated a message was left for the employer to call within a 535*535 certain timeframe, but the employer did not return the call."

Robles was denied initially and for three appeals because of what he said by himself. Most any other claimant would have given up after the first hearing, a smaller percentage after the board of review, and I've never seen a thread where anyone went to court, let alone the court of appeals. This case says exactly what I think it says: "let your employer do their own dirty work at getting you denied for benefits."

You fail to consider that Robles honesty with his employer was probably what kept the employer from reporting to EDD any misconduct.

The rest was EDD error after error after error. Had EDD operated as it should have under the laws in place, there would have been no need for court action at all. Robles would have been approved for unemployment benefits based on the fact that the employer reported no misconduct on Robles part.

No one should expect EDD to act contrary to the law.

And, again, we do not know if leo was fired or, if fired, whether the matter will be heard in a tribal court.

You are getting confused, Chyvan, by facts that are not in evidence and by your own insistence that your advice is good when it does not appear to be good advice at all.

 

[Chyvan]

No one should expect EDD to act contrary to the law.

Yes, they should because

http://articles.latimes.com/2014/feb/26/business/la-fi-edd-appeals-20140226

"They threw out or revised more than half of the earlier denials . . . ."

"Judges overturned 163,375 appealed denials out of 296,030 -- 55% -- between July 1, 2012, and October 2013. The reversal rate rose to about 70% in cases in which the EDD said claimants did not comply with department regulations."

If EDD was doing what they were supposed to do, those percentages would be a lot lower.

 

[quincy]

Yes, they should because

http://articles.latimes.com/2014/feb/26/business/la-fi-edd-appeals-20140226

"They threw out or revised more than half of the earlier denials . . . ."

"Judges overturned 163,375 appealed denials out of 296,030 -- 55% -- between July 1, 2012, and October 2013. The reversal rate rose to about 70% in cases in which the EDD said claimants did not comply with department regulations."

If EDD was doing what they were supposed to do, those percentages would be a lot lower.

Then claimants should be prepared to argue denials so these denials can be thrown out or revised - and there apparently needs to be an EDD overhaul and better education for EDD employees so that they understand the laws they operate under.

It is better if denied claims can be argued as Robles did his, with nothing communicated to EDD from the employer to support misconduct (probably because Robles did not try to hide what he attempted to do from his employer and was, instead, contrite) and with a lot to support EDD mistakes.

The fact that EDD makes erroneous decisions and operates outside the law does not make your advice to say nothing to HR any better advice, though.

 

[commentator]

Not to beat this horse completely to death, but when too many decisions are getting overturned, this is always being dealt with internally and is a matter of great concern. It's required by federal statute that a certain degree of integrity in decisions be maintained.

So before and after this story came out, the higher ups will be working out some sort of plan to show that they've got better training in place, are working with the adjudication of initial claims so that there isn't so much overturning. We can't use this generalization to say that it's going to stay this way, and it's always going to be this way in unemployment claims from here on out forever.

I could also explain a lot of why things got this way, as in the massive over the top flood of claims that happened in 2009-12 that washed away a lot of the system barriers and got a lot of things going lax. There was also, at that time, a huge retirement of older workers (who headed for the hills when they could!) and a complete attempt to rework the system so that everything could be done on line. There was the wrongheaded assumption made in many states that with the centralized claims system, anybody off the street could be hired for a very low wage and trained to take claims and to function in the system. This hasn't proven true, and the system is broken and riddled with errors. And everywhere I hear pressure is being put on the agencies by the federal government to fix these problems.

However, even now when that claim is initially denied, and you appeal it, even to those ALJ's, you are not taking it to a civil court. You are taking it right back to the same agency you began with, and getting it looked at by what is presumably a better, more experienced, more knowledgeable of unemployment law person.

The decision not to say ANYTHING at the beginning of the claim, in a vague effort not to "incriminate" oneself by admitting to anything of which the employer does not accuse you, which might work for you in criminal court, is not going to be kindly regarded by them, either. They're going to see it for what it is, an effort to outsmart the system by someone who really doesn't understand what they're doing. I maintain that in most cases, they're going to have that information from the employer. They are required by law to attempt to obtain it from the very beginning of the process. They are required by law to notify the employer who's drawing claims from them and how much they are being charged based on these claims.

I spent several years trying to extract legitimate unemployment tax money from employers, and in most cases they're either going to fight claims themselves, or they are going to hire a third party, of which there are plenty of them out there and they are becoming quite experienced at doing this kind of work, to control their unemployment tax rates. They can show the employer significant savings from properly managing their claims.


Deliberately not answering basic questions from the initial fact findings, failing to provide any extraneous information
just is not, in 99% of the cases, the right way to go. I profoundly agree that it is better to work smart in what you do say while filing the initial claim, and to refrain from providing the system with any negatives you do not have to provide, as in "Well, yeah, I might have said a couple of things, but that's not what I meant......" or 'Yes, sometimes I did sort of come in after I'd had a few, but nobody had ever noticed or said anything before..." But that doesn't mean "I say nothing, except that I was terminated."