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In need of your help to get through appeal hearing.

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donnaluvsyooh

Junior Member
What is the name of your state (only U.S. law)? California

I appealed UE’s decision and my hearing is set for Thursday 9/17. I know I probably have a very slim chance of winning but it is worth a try. I'm asking for a few pointers to what I should or should not say to try and see if the decision will come out in my favor.

Here is my story: I clocked out to go on my lunch but was called back to my office to give a tour of the facility. During the tour I was called to the administrator’s office and was then fired. I was told that I was being terminated because lack of performance and to apply for my UE benefits. So when the UE rep called for my interview I was shocked when he stated that I was denied because my employer claimed misconduct (improper use of internet) which led to lack of performance. My friends tell me that once an employer claims "internet" you have no chance whatsoever to win. I was never warned or written up for any misconduct and I understand they don’t have to give me a reason to terminate me.

I believe that there was lack in my performance because of other issues but I know it wouldn’t even matter if I brought it up. Prior to my termination I informed my supervisor that I needed help but I wasn’t given any because of "budget cuts". I couldn’t go to the administrator because she was fired so the VP of the company stepped in to act as the administrator because it is illegal to run the facility without one. Instead of giving me help like I requested she gave me more to do which prevented me from doing my job. After she gave me more to do, she fired me and that very same day she walked in the new employee that would be taking my place.

I just need some advice on what to say and what not to say or to just cancel the hearing and just give up. I want to bring up other issues but I know it’s irrelevant. My job requires me to be in the office to answer internet inquiries and to be out of the office to complete my paperwork. It all fell apart when she assigned me the job to answer incoming calls to "assist the business office" which didn’t allow me to leave my office. I was already "assisting" the medical records and marketing department. If it was just solely on lack of performance, I think I would be able to handle the appeal and plead my case. The issue is the whole internet thing. I have no clue where to start or what to do to convince the administrative judge. Please help. Thank you.
 
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commentator

Senior Member
Don't give up. You have a pretty good chance of winning, if the circumstances are truly a performance related termination. But what you must do before your hearing is sit down and write out exactly what happened.

It sounds as though you have thought up a thousand reasons why you were terminated, why you were doing what you were doing and why you won't win. What you have to do is get on target, be specific, and argue one thing in your hearing.

First of all, we need to isolate a reason why they told you you were terminated. If they told you performance issues, and did not mention anything about the internet (we assume you mean "misuse" of the internet, or looking up personal things on the internet, correct?) then what did YOU tell the unemployment office when you filed your claim?

Did they give you a letter or separation notice or anything when they terminated you? If so, what was the reason they gave on this?

If they said "Performance issues," had you been given any warnings or indications that your performance was not adequate? When and what did they tell you?


Okay, internet misuse. Your job required you to be on the internet, right? So what was the actualy company policy regarding internet use? Did you spend a lot of time looking at personal things in violation of stated company policy? Had you been warned, or did you know that this was against the rules but you did it anyway? Was the reason that you didn't get your job done or your performance was poor because you spent all your time looking at You-Tube? Then your friends are close to right. It's very hard to defend doing this.

But why would you say this or admit to this when they told you it was job performance that they were terminating you for? If it was job performance, does that mean related to your excessive internet use, or the way you were doing the job using the internet? If they were not happy with the way you were doing your job, then what you want to say is that you showed up, you did your best, you told your employer that you needed more help, and it was not provided for you.

When you have your hearing, using your notes on what happened, say you were told you were being terminated for performance. You were not given an opportunity to keep your job or correct the situation. You did your best to keep the job. Misuse of the internet was not mentioned in your termination, in fact the employer told you to go and file for your unemployment. Be sure and mention how you asked for help, and what you said here about the administrator who walked in your replacement immediately.Be sure that you state that nothing was ever said about your misuse of the internet until you had your U.I. interview. For goodness sake, don't get into "Well, everyone did it....so yeah, I did look up some stuff....."

It is true that they do not have to give you a reason for firing you, you cannot sue them for firing you, but you can get your unemployment if you were not fired for a good, valid job related MISCONDUCT reason. If you were unable to meet their performance standards, even with you trying your best to do so, this is not considered misconduct. If they fired you for performance and then said they fired you for internet misuse, they should be able to present some proof of your misuse, and even to indicate that you were given some warning that you were in danger of termination. What was the company policy? Had you signed off on it? Does it say how much or what constitues 'misuse'?

Is this a telephone hearing or in person? Either way, you will both be sworn in, and you will be asked to speak first since you are the one appealing. You will present your case, perhaps led by questioning from the ajudicator if you are not smooth. Everything will be taped.

If that " other reason for my lack of performance" you hinted at was a health issue or because you were having stress at home or something personal, DO NOT bring it up. This is strictly by the unemployment law. Be sure to document the times your performance was mentioned, you were warned, and how many times you asked for help to do your job which was not given. Stay away from the internet use issue if you can.

Good luck to you. Be calm, be well organized, stick to your single issue, and you may have a pretty good chance to win. By the way, I hope you have continued to make your weekly certifications. If not, if you win, you'll have to re-open your claim and won't be back paid for these weeks that have gone by.
 
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donnaluvsyooh

Junior Member
When I signed the separation papers there was a check mark next to "discharged" and then next to it they wrote out "performance issues". On the bottom half of the form was instructions to file for UI benefits and the corporate HR told me to apply for it while I was signing the paperwork. They had a excel spread sheet of uncompleted files and they said i needed to be under 10 which is IMPOSSIBLE with my given workload. No paperwork of internet misuse or anything related to the internet was given to me to sign.

After I was terminated my supervisor told me that they had secretly hired someone 2 weeks prior and had her go through training at one of the sister facilities. The day before my termination, my supervisor said she was introduced to the new employee. After hearing this I knew it was a planned termination.

When I applied for my benefits I wrote that I was terminated for lack of performance. I told the interviewer that what they claimed was not what my employer had told me when i was being terminated. He didn't care and continued to question me about the internet.

The hearing is in person at 8:15am. Do I have a better chance at winning if the employer does not show up? A co-worker that used to work (she was also fired for the same reason) in the same office said she would be willing to be a witness. Would it be beneficial if she or my supervisor came?

I have a question; does my employer have the right to not give me a copy of my employee file? I was told that I was entitled to it. A few weeks ago I called to request a copy and they said NO they weren’t allowed to give it to me.

Before, everyone kept telling me that i had NO chance because my employer claimed "internet" and the word FAIL was written all over it. Then to reinforce that negativity, the interviewer told me that what matters is what the employer claimed and that is what they go by. He said they will only question me on what the employer claimed and anything else would be irrelevant. Then I asked him, why would they instruct me to file for my benefits if they're just going to deny me? He casually said, I don’t know and continued to question me about the internet.

What the interviewer drilled into my brain makes me feel like i have no chance to win. I hope the ALJ stays off the subject of the internet.

Thank you for your advice and support commentator. I really appreciate it.
 

commentator

Senior Member
Then this claims taker gave you bad information. There are a lot of new people in the unemployment system right now who are basically inexperienced.In any case, the hearing referee will be a different person.

The employer may or may not show up for the hearing. Act as if they were there. Do not worry about your "chances." Take in the notice they gave you.
Take in any documentation you have.

State your case firmly and calmly. Your case is that you were told that you were being terminated for your failure to meet the performance standards. Give a concrete example of what you were told was performance, the thing about being under ten uncompleted files. Write down the times that you asked for help. Write down exactly what was said during your termination.

In this case, you should be able to present your side of the situation without coaching. As I said, the referee will only ask questions if you are really being disorganized.

If, when the claims taker did the fact finding about the internet use, which I assume had to happen at some point after the initial claim was taken, and after they had contacted the employer, they were obligated to ask, since the information presented by the employer was different from what you had told them. In this particular session, the whole job of the ajudicator was to find out if there was misuse of the computer involved, or if YOU were lying to them when you filed the initial claim. That is why they stayed on the internet issue.

I hope you did not spill your guts and tell them a lot of information about your internet use, if so, you will have to cover that in your presentation, but for the most part, your story is that you were fired for performance, this is what you were told, you were never given any feedback about misuse of the internet. There was nothing ever signed by you or placed in your files concerning the internet. When you attempted to get copies of your files to prove this, you were refused by the employer.

If they are there, they can very well produce faked material showing that you have been written up and warned for internet misuse. It's possible they will do this.

The only reason I would have my friend there to testify is if she was fired in the same way, was given no reason for her termination other than performance, and then they told the U.I. system that she was fired for internet misuse.

By the way, legal services will represent you in Unemployment Appeals hearings. Have you checked with them? You could retain an attorney, and this might be justified. They would postpone the hearing, probably until they could obtain your work records.
 

donnaluvsyooh

Junior Member
Here is an update...my hearing is TOMORROW

Yesterday I had called the employer again to see if they would give me the papers (proof of misuse of the internet) that I wanted from them and they said NO. I expected that answer but I wanted to try anyways. So I called the Office of Appeals to ask for their advice. They said if I needed those papers I should try to get a subpoena. I went into the office, filled out the form and then waited to see if the AJ would approve it. She came out and said NO.

BUT...she sat down with me and told me why. I nearly cried. She said that the burden is on the employer to show proof of their claim. If they don’t show up, don’t bring any proof, or can’t prove their case…then it’s on them (unsure if that meant I would win the case). She said the AJ that will be conducting my hearing will have the employer speak first to prove their case. She said that if she gave me this subpoena it would benefit the employer because I would have those papers and they will know what they need to bring with them. Then she looked through my file and said "There is nothing in your file about the internet". I then had to explain to her what happened during my interview. She explained that at times during a termination meeting the employer would "sugar coat" the reason why they are terminating the employee. So whatever they claim afterwards they must prove. She didn't "coach" me on what to say but she told me about similar cases she had been through. She told me what the employer would claim or what type of proof they would present and then what the employee had to say in defense.

I hope they don't show up altogether but I know the wicked witch will make sure someone shows up. I want to thank you commentator for talking me through this. I hope I haven’t wasted your time because you are the only positive support I’ve had since I lost my job. I've been a nervous wreck since I got my hearing date in the mail. I have never gone through this and I don't ever want to go through it again. I’ll keep you posted. Wish me luck!
 
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donnaluvsyooh

Junior Member
I just attended my hearing. I do not know who is going to win because I’m still confused on what just happened.

First she asked for proof of where it states that the employee was not allowed to use the internet and what exactly is how much is not allowed etc... He said the company has an employee handbook and he "thinks" its this..... but did not bring proof. The employer brought in documents that I have never seen before. She grilled the employer on the written statements. She asked why they were not dated and why it was not “sworn in perjury” or something like that. I didn’t quite understand and the employer did not understand himself. And then she questioned why the statements were written in the same exact format. He said he asked and watched the two people write him those statements on tuesday (they were not dated).

One of the written statements was from a previous supervisor whom had nothing to do with my termination. It was all mumble jumble about how horrible of an employee I was, how he knew I was using the internet and how he confronted me TWICE. Which is a LIE! Never happened. Then she asked him on why I was never written up if he knew I was using the internet. The employer said because he was a nice guy and sometimes hes too nice to write up his employees. Then she asked him why NO ONE had written me up if it was a HUGE problem. He said, I don't know. Then half of the internet "proof" had no date recorded. None of it showed the time or duration of how long I was on those websites.

The second statement was about my "verbal counseling" of how she called me to her office and she told me all this mumble jumble. She said I used facebook which is a LIE because I do not have a facebook account.

I cross examined the employer about their claim of "verbal counseling". He said he only knows what "she (his boss)" told him. I asked him if he knew if anyone other than the two of us were present and he said no. I then stated that during this "verbal counseling", the administrator was present so there was 3 of us. I asked why I was not written up on that day or why was this counseling not documented: the question was not answered. Then I questioned him on why my previous supervisor had written this statement when he was not there when I was terminated. He said he had him write it because he used to supervise me. Then I asked why they did not have my current supervisor write a statement: He didnt answer because in reality they fired her a few weeks after.

Would those documents be substantial evidence that could cause me my benefits? I don’t understand how they can bring in a statement from someone who wasn’t my current supervisor.

The AJ then questioned me about the websites and I answered that I would be asked to assist the social services department with looking for homes for clients to go to. I don’t think she believed me because she had this look on her face. I stuck to my answer because that was the truth. Then she asked me if I knew I was going to be fired, I said NO. Then she asked that after I had the warnings did I know I was going to be fired, i said no. She asked why i didnt know and i told her i was told by the adminstrator that all i needed to do was stay ontop of my files and that was it. Nothing was said about being TERMINATED. It was a warning to show me how behind I was and not a warning to warn me that i would be terminated.

During his closing statement he started to accuse me of being dishonest... Great...now i'm being called a liar.

I have no clue which way this is going to go. Does anyone know how long I have to wait for the final answer? The hearing took less than an hour. I looked on the California EDD website but I can’t find anything. I just want it to be over; with or without the unemployment benefits.
 

commentator

Senior Member
Well, frankly, it sounds pretty darn good for your team, to me.

They have two weeks to get you a decision. Be certifying for each week that passes. You have been doing this, haven't you? May come sooner than this, but they have two weeks. If you win, you will be back paid for the weeks you have been certified for.

But the issues were whether you had been subjected to progressive discipline, whether they could prove that you knew that misuse of the computer was a firing offense, whether they could prove you were misusing the computer...it doesn't sound much like they made any of these points to me.

I always tell people, don't be shocked if the employer comes in and lies like a bedspread. It certainly happens. I don't recall the exact phrase for it, though there is one, but these hearings are conducted with the assumption that either or both of the parties may be lying. So it's good that you "stuck to your story," in the face of her probing "as if she didn't believe you."

You had a good argument that you did not know your job was in jeopardy, that you would have changed any behaviors that would have caused you to be fired, so much the better.

Just because it involved computer use did not mean you were "toast", they have to have defined policies, and those have to be followed and enforced. Also, it would have been good for their case if they had been able to go back and show where you were actually abusing the computer from records or witnesses. Since they didn't, I think your chances are pretty good. Let us know.
 

donnaluvsyooh

Junior Member
Yes, I have been mailing in my forms. I’ve been unemployed for almost 6 LONG months! It's so hard to find a job and I’m trying to stay positive. I just need to remember it’s not the end of the world if I don’t get my benefits. If they deny me I’m going to let it go and move on. I probably won't find out the results until the first week of October. It is going to be a LONG 2 weeks of waiting.

My next question is if I do win this appeal what do I do if I find a job? Is it better to stay unemployed, find a part time job and get partial unemployment or find a full time job and ditch the benefits? I have also heard that if you start school you may lose your benefits. Is that True or False? I’ve asked around if school can disqualify unemployment benefits but no one is able to give me an answer. Made attempts to search the California EDD website but I don’t think I’m looking in the right areas.

I will post an update when I get the results. I know you feel that I have a very good chance of winning but I can’t help but feel a little worried :(.
 

commentator

Senior Member
Hi there.... please do let us know what happens, if you get approved or not. If you have your hearing, and you get approved, you will be backpaid for all these weeks you've certified for. A nice chunk of change. But you have almost exhausted all the regular benefits you were entitled to receive. Even if you are approved, you will be beginning one of the federal extensions. In all the states, this is about six more months of drawing.

Go immediately to the Career Center system whatever it is called in your state. If you have a schooling in mind, talk to them. Most of the state sponsorer schooling, like community colleges and colleges and vocational training schools will be linked with the unemployment and career center systems to the point that you can not only go to school while receiving benefits, they will pay for your books and tuition and expenses. Retraining is a big thing they promote. Some of the private schools are a problem, as you may be receiving benefits, but while in these schools you will no longer be able and available for work. Talk to someone at the career center about this.

If you get an opportunity for a full time job equivalent to what you had, then you will of course want to take it. Unemployment benefits end. And then you may not have such a job to take.

If you are in school training for a better job or a new career, you may not want to begin a new job until you can get your training completed and get a job in your new field. If you get a chance to take a part time job, this may be something you can do while in school and receiving benefits. It might work out better for you and will definitely extend the time you can draw unemployment benefits.

But let us know what the decision was. There is one more appeal, but as I said, I think you had a pretty good chance, and I would surely go on and do the "board of review' if denied this time. But immediately, begain checking on school, deciding where you want to go and how much help you can get due to your situation. And always, best of luck to you.

Best of luck!
 

donnaluvsyooh

Junior Member
Here is an update:

Today marks 2 weeks or 10 business days since I had my appeal and still NO answer. I call the automated system once a day to see if they had issued a check and nothing. The claim forms are still coming in the mail and I'm sending them out like I normally do. I'm beginning to get a little antsy. I will update once I get an answer.
 

donnaluvsyooh

Junior Member
I finally received the results in the mail and the judge ruled in my favor! :D yay! Thank you commentator for your guidence. Now I just have to wait for the checks...who knows when they will come. Hopefully they don't appeal the decision.

I've been trying to call and email EDD to apply for the training benefits, no answer. Is there another way to apply?
 

commentator

Senior Member
Congratulations!

Usually, unless the review board thinks the law was really violated, any further appeal won't come to anything. I wouldn't worry unduly about it, as I thought you had a pretty good case on this one anyhow.

Keep certifying, the money will come eventually, and then regularly. EDD programs to get training money are usually at walk in offices. So in your county, check out the phone listings and see if you can find a state sponsored office to go into and look for work and apply for training benefits. It is a good idea to have some sort of idea what training you would like to do, and at what facility close to your home you'd like to do the training, and then you ask the state career center what they can do to help you with this particular training ambition.

It was always sort of frustratining when we'd talk to someone and they'd say, "I want some training." And we'd say, "What sort of training are you interested in? and they'd say, "Uh, I dunno, what all have you got?" LIke we were the 51 flavor ice cream store!

Do your homework, and you should be able to work this win into a good opportunity to retrain while the economy is so awful to be ready when it gets better!
Again, good luck in your endeavors.
 
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