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Unemployment benefits Denial Appeal

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jbowman

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

Quick question: In California, if unemployment benefits were denied and the employer gave a specific reason for the termination, can the REASON for termination be CHANGED during an appeal?

Situation: Friend was terminated with the reason from the employer being incarceration. Incarceration was due to a CLERICAL ERROR and friend was released after proving the error. This makes him eligible for benefits. When he proved the error to the appeals board and employer - at the hearing, the employer tried to CHANGE the reason for termination to not being honest about why he missed work. Saying now he was terminated due to misconduct.
Can they change the reason in this way and will the appeals board take it into consideration?
 


swalsh411

Senior Member
Has your friend qualified for benefits? Where is his claim along in the process? It matters what the employer has already presented in terms of evidence and statements made under oath.
 

jbowman

Senior Member
He qualified for benefits - meaning he did receive a letter saying how much he would get per week.
But then, his benefits were denied based on the employer saying he was terminated for incarceration.
Today was the actual appeal.
He went in to the appeal room (whatever) and presented his proof that he was incarcerated on a clerical error. Which lawfully makes him Eligible.
Then his former employer proceeded to say "well, he said he had a family emergency and he lied so it was for misconduct".
 
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Beth3

Senior Member
Yes, the employer can change the reason they are challenging a claimant's eligibility. It usually weakens the employer's challenge however.
 

jbowman

Senior Member
Ok - so in addition to my first question.

Is lying about why you are missing work considered "gross misconduct" and a reason to deny unemployment benefits?

Just to add more info. He knew it was a clerical error - was really scared though. Called work and said he had a family emergency. Then a day or two later he called and asked for leave. He didnt receive an answer until he got a termination letter in the mail. He was in jail for 6 days. It was a mess.
 
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swalsh411

Senior Member
Considering most good employers will often bend over backwards to accommodate an employee who has a true family emergency, yes I would say lying about that is abusing the trust and constitutes misconduct. An employer has a reasonable expectation that an employee will be truthful when requesting last-minute time off.

Your friend wasn't fired for going to jail. He was fired for lying about why he needed time off.
 

commentator

Senior Member
The poster keeps saying that because he was incarcerated due to a clerical error, this "lawfully makes him eligible" for unemployment benefits. Not true at all. You are eligible for unemployment benefits because you left your job through no fault of your own. If you are terminated, and it is determined that the employer did not have a good reason to terminate you, you may, by decision, be approved for benefits.

There are no laws that state you will or won't be entitled to unemployment if this or that happened. The ajudicator will just make a decision based on hearing what did happen and trying to apply unemployment law to this particular situation. Incidentally, receiving a statement of how much you are eligible to receive and for how long does not mean your claim has ever been approved. That just means you have enough wages paid in and are montarily eligible to draw a claim if it is approved.

If the employer said he terminated you for perpetual tardiness during the initial decision phase, and then in the appeals hearing he said you were terminated for swearing at a client, that would be changing his reason for termination in a big way. That does not appear to be what happened here.

The employer can maintain that they were told you (er, your friend) had a family emergency. Then they found out he had been incarcerated. He was actually terminated due to the fact they found out that he had been jailed, and he lied to them about it. Their first response may have been very brief. Reason for termination? Incarcerated. When the hearing came up, then they would elaborate on this brief reason. And the truth is, the employee WAS incarcerated, whether in error or not. And did not tell them the truth. So this may be considered enough misconduct to keep your friend from receiving benefits. The board will only look at whether unemployment law was applied correctly, and frankly, it doesn't sound as if it was not. Possible they might reverse the decision, but doubtful. That he was picked up by mistake does not mean the employer does not have the right to fire him for that or any reason.
 
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jbowman

Senior Member
He is not arguing that he shouldnt have been terminated. He is arguing that he should NOT be denied benefits.

He was terminated on the basis of 1256.1 but that does not apply in this case because of the clerical error.

Meaning to say - if someone is arrested and terminated for missing 24 hours of work due to being incarcerated, then YES, they are not eligible for benefits. BUT if they were incarcerated and it was a mistaken identity or in this case, a CLERICAL error, then 1256.1 does not apply - according the Unemployment code. So he proved that part of the case.

But during the hearing, as soon as the employer saw his proof, they changed up and said "well, he didnt tell us the truth so we fired him for that too.".

That is what I was asking about.
 

jbowman

Senior Member
Your friend wasn't fired for going to jail. He was fired for lying about why he needed time off.
And hear lies my question. The reason the employer gave for termination was incarceration. Which according to the code is a pretty done deal in terms of denial of benefits EXCEPT when it was a mistaken identity or error of the person was found not guilty of any crime.

So if in fact, a person is lying about why they need time off, is that "gross misconduct" and can benefits be denied because of that???
 

jbowman

Senior Member
As you have worded the question, yes and yes.
So "gross misconduct" doesnt actually have to harm the employer?
If I call in sick - saying Im sick - but actually go to a birthday party, and my employer finds out that I lied - I can be fired. AND my unemployment will be denied??

Dont misunderstand - we completely understand he can be fired for that. But no benefits is throwing us.
 

cbg

I'm a Northern Girl
You asked if lying about the reason for an absence CAN be considered gross misconduct. The answer is, it CAN. Whether it WILL in any given circumstance is situation specific.
 

commentator

Senior Member
If a person is incarcerated, it is assumed to be because of something unlawful that he did. Thence he is out of work through his own fault. If it is used as a reason for termination, the termination is due to the fact that he was absent from work, he was by his own fault no longer able to come to work for the duration of the incarceration, and it's an unexcused absence. Considered misconduct for general purposes.

However, if he is shown to have been grabbed up by mistake, it is deemed to have been an absence that he could not have avoided and that he himself did not cause through his own actions, so the law would say that this absence, if he was terminated for it, could be considered a reason to be absent that was unavoidable and was not the claimant's fault. He can, under these circumstances, be approved to draw (according to the decision of the appeals judge/referee/agent).

But there were additional circumstances at play. By his own testimony, the employee admitted although he did call in and report his absence, that he falsified his reason for the absence.The employer does not restrict himself to saying only that he terminated for "incarceration." He can also elaborate that they discovered this person was lying to them about the reason he was out of work. How can you prove that they were not going to bring up the lying about the reason for being out of work before the hearing started and they heard the person's testimony that it was a mistaken arrest?

And the reason for termination can be anything in a right to work state. Even if the U.I. office picks a code for the reason for termination, that does not mean that the claim must be ajudicated any certain way. They are all based in the individual circumstances of the specific case and change according to gathered information. It may certainly be decided at a later date that a claim has been miscoded, or that a different code or circumstances apply.

Gross misconduct is loosely defined as something so serious that the employee knew it was wrong, even if it had never happened before and there was no hard and fast rule against it. Or if it was a "one time" thing that the employee knew was considered grounds for termination by company policy. For example, if the company had a policy that falsifying the reason for an absence is considered misconduct, or wearing red shoes to work was misconduct, or saying the word "bacon" at work is considered misconduct, then it is, whether it actually harms the employer or not.

The employer must convince the unemployment division that they had a valid misconducut reason to terminate the person.The testimony of the employer at this appeals hearing was apparently sufficient to convince the appeals person that the claimant's behavior was misconduct. If that was in the verbage of the decision letter as the reason the claim was denied, then that is what must be appealed to the board of review.

Your friend's argument to the board of review should be that his conduct did not rise to the level of gross misconduct, not that he should be approved according to unemployment law Number so and so that says a person who is wrongly incarcerated must be approved and the employer changed his reason for termination after they got to the hearing. That sort of tactic does not impress and usually will not result in a changed decision. The board will listen to the case and look at any additional evidence, such as the actual separation notice or letter if one was given, the reason that the employer gave to the unemployment office in the first place, the statement of the client, and the entire tape of the appeals hearing. They will determine if the law was followed in the appeals process and in the decision to deny benefits.
 
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