Wrongful Term Date, Unemployment Compensation

[dmwaling]

California
I went on LOA 6/9/2008 hoping to be back in 6-8 months. I wasn't able to return back to work and was supposed to be officially terminated 6/9/2009, which meant I would begin paying COBRA benefits 7/1/2009.

As of 8/4/2009 I hadn't heard anything from them and I asked them if I was supposed to terminated because I wanted to file for UI. The basically said "oops" we forgot to terminate you, we're doing it today (8/4). BUT they back dated my termination date to 6/9/2009 because their policy states they must terminate 12 mos after the 1st day of LOA. They also backdated my COBRA to pay from 7/1/09 not 9/1/09 (if my term date was supposed to be 8/4/2009).

Because of their mistake I wasn't able to file for UI until 8/4/2009 which means I lost 2 months of UI. I applied for UI and tried to get my claim backdated but was denied as I presumed because it is not UI's responsibility.

I believe I should be compensated by my old employer for the 2 months of UI I lost I want to make sure I have rights for compensation. Please help!

 

[cbg]

That's one way of looking at it. Another way of looking at is that because of their mistake, you will be eligible for two months of unemployment after you otherwise would have been out of benefits.

 

[commentator]

You don't have rights to anything I can see here. The decision to terminate is up to the employer, but you knew when it was that you were supposed to come back or be terminated by, didn't you? If they don't bother to send you a notice of termination, why didn't you call them, if you were wanting to start filing for benefits?

It is certainly not the responsibility of the unemployment system to give you backpay for time when you were off but had not filed for benefits. I don't see as it is the responsibility of the employer to terminate you in a timely manner so that you can begin to receive benefits.

But, as cbg pointed out, your benefits don't begin running till you begin receiving them, and thanks to the delay in filing, you will be able to draw two months more in the future.

 

[ecmst12]

Were you able to work and actively looking for work between 6/9 and 8/4?

 

[dmwaling]

Thanks for your replies. I spoke with a lawyer today and I was able to give him more detailed information. He said I have rights per Employment & Labor Laws.

I didn't know I could get UI until a judge mentioned it me. I wasn't aware my company didn't lay me off. I thought it was done. I've never been layed off or on Medical leave before so I'm very new to this. My employer admitted fault for thier mistake, which I have via email. After talking to a judge she gave me information about my rights to benefits. Here's part of one of the codes she gave me.

When an employer discharges, lays off, or places an employee on leave of absence, the employer shall, no later than the effective date of the action, give to the employee written notice of his or her unemployment insurance benefits rights by providing the EDD pamphlet entitled, “For Your Benefit, California’s Program for the Unemployed.”

The effective date was backdated to 6/9/09. They failed to give me the proper paperwork, even after I received my term letter. I'd received nothing stating I had rights to UI. So with this the attorney said I'm within my rights to be compensated.

 

[ecmst12]

One more time:

Were you able to work and actively looking for work between 6/9 and 8/4?

If you were NOT, then you were not ever entitled to UI and had you claimed it, that would have been fraud.

 

[dmwaling]

Sorry, I was replying to commentator. Yes, I was for both.

 

[commentator]

Yes, there is a statute in most states that says they are required to give you a notice of separation, with the appropriate notices that say you may file for unemployment insurance within so many hours of your termination.....or lay off. You would be eligible to sign up for unemployment insurance, either way. Not to receive it, because a decision would have to be made, especially about a termination, but to sign up for it. So what is meant by "I was not aware my company did not lay me off"? A lack of work lay off is the fastest ticket to an approved unemployment insurance claim, provided you have the monetary eligibility.


But I will be very interested to see if the U.I. system agrees to backdate this claim based on the company's failure to give you this termination notice. Because signing up for unemployment, even though they are supposed to keep you fully informed that you can do so, is always the responsibility of the person. You knew you were out of work, though able and available, for some reason didn't you? I still don't understand why you didn't call them? At any point, you had the power to start this unemployment process. The fact that you didn't know you could apply....well, maybe CA is different. Besides, even if they agreed to start your claim effective two months ago, when you had not signed up for it, then are they going to let you certify after the fact for all those weeks you have not certified for? Maybe so, but as I said, I'll be very surprised.

 

[ecmst12]

More important question - since you said you were on medical leave, when were you released by your doctor to return to work? If prior to June, why did you not return to your job at that time?

 

[commentator]

Yes, I'm struggling with the concept that the company was keeping him from receiving benefits for this period he had not known officially that he was terminated, because how do you know you would have been otherwise approved for benefits if you had filed? It doesn't sound that way to me, somehow. If a person is terminated while on sick leave, then when he is able available and released by his doctor to resume full time work, he then is eligible, (if monetary req's are met) but it doesn't really sound as though he has been approved yet, just that he wants to backdate his filing, has appealed this and has been denied once.

I'm not really seeing what he expects to get as recompense, because the claim, when filed will still be for the same amount and number of weeks, more than likely. They did not deprive him of money, just money then...provided the claim had been approved when filed back then.

 

[cbg]

Actually, very few states require a notice of separation...