CA- EDD Hearing ?

[tinker925]

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

When I was terminated I was not given a reason for termination other than "its just not working out"... but the Company had owed me (then confiscated at termination) a $23,000 commission check which they waited until the very last minute to terminate me. Of course I immediately filed a lawsuit for my commission and also found out that they actually owe me much more money for failing to pay expenses and a minimum wage.

The Employer told EDD that they terminated me for misconduct....? even though their own separation paperwork they handed me at termination stated "NO GROSS MISCONDUCT"... so I was shocked when my EDD was denied.

After 10 weeks (and zero monies coming in) I finally had my hearing, and was surprised at what they had submitted my reason for termination... they had some clearly experienced hot shot HR folks come to my hearing against little ole me....the Supervisor had made a hand written list of errors that he stated that I had made (half were absolutely not my fault and were errors support staff made, but were costs incurred on my jobs - by others). I was never written up, I was only "coached" on certain issue's, there was no way I thought my job was in jeopardy especially considering I had closed some recent BIG deals ---which I was never paid on.... During my "coaching" I requested more training several times... which I never got. All this new information at the hearing was shocking and was news to me... I was shaking so badly that I had to sit on my hands.

I did not bring up to the ALJ that I had opened up a lawsuit - which is the reason I feel the Company changed the reason they terminated me, because I wanted to stick on topic and I was shocked at these new allegations.

It felt like the ALJ, in the way he questioned me, understood that I did nothing 'willful" and that I was unaware of the reasons they terminated me.

It has now been two weeks and I am still waiting for the appeal decision and I am scared that I lost. This is a long long process.

Does anyone have this kind of EDD hearing experience? is my case weak?

 

[Zigner]

I feel you are worrying over nothing. Wait for your determination letter...

 

[swalsh411]

Poor work performance rarely rises to the level of misconduct unless egregious or the employer can prove the employee wasn't even trying. Rattling off a list of mistakes you had made is unlikely to have any sway with the examiner because if you performance was SO TERRIBLE then why didn’t they fire you a long time ago? It’s a hail mary pass employers will sometimes attempt and in my experience it rarely works.

 

[Beth3]

It has now been two weeks and I am still waiting for the appeal decision and I am scared that I lost. This is a long long process.

I'd be very surprised if the State didn't grant you benefits. You didn't engage in any willful misconduct and there is no history of disciplinary action. In order to prove willful misconduct, your employer would have had to demonstrate that you made these errors on purpose. I expect the determination from the State will arrive shortly.

I suspect you're worrying over nothing.

 

[commentator]

If it goes much past this two weeks, you may need to call the appeals unit and ask if there has been some unnecessary delay. Get them to check on it, in other words. Sometimes, once in a blue moon, there's a glitch, where the appeals unit fails to change a code that needs to be changed and the claimant never gets a response But since you have not received your decision letter or any checks, give it a bit longer.

I hope you've been making your regular certifications for weeks as they passed since you filed a claim, that way if your initial decision is overturned and you are approved, you will be back paid for the weeks you've certified for since the claim was filed.

And agreeing with my fellow posters, this sounds as though you have a pretty good chance of approval here. But you should hear within another week, at least. If not, check on it, don't just assume you haven't been approved and let it go on.

 

[ESteele]

What's up with the wage payment suit?

I think the posters are all correct. Absent a record of misconduct or serious performance deficiencies, it does not appear likely your employer can establish that you engaged in gross misconduct warranting denial of unemployment compensation. While “stranger things” have been known to happen, you will probably prevail on your appeal based on your recitation of the facts.

I am even more interested, though, in the issue you mentioned initially. How did your employer “confiscate” your $23,000 commission check? Did your boss physically take the check out of your hand? Or did he terminate you first and then refuse to issue the check as you were ushered out the door?

Separately and more importantly, have you retained counsel to represent in you seeking the commission, the minimum wages and the expenses? Without researching this point, I suspect that California has a relatively strong wage payment law. This law may subject employers which fail to pay “wages” (a statutory terms which likely includes commissions and other forms of pay) timely to liquidated damages and to attorney’s fees in addition to the withheld wages plus interest.

If you are proceeding pro se in your lawsuit to recover the withheld wages, it would likely behoove you to speak with an employment attorney ASAP about your case. You want to assure that you recover all of the damages due you under the law. You may be particularly well served here by having experienced counsel take over what appears to be a meritorious wage case.

 

[tinker925]

Hey there ESteele,

I was due a commission check which had been conveniently postponed for whatever excuses, for almost two months. Honestly, I had been on a draw against commissions, its actually a little confusing... without going into too much detail when I was terminated I was told they were "confiscating" my earned commissions to pay back my draw and other costs. My actual agreement was to pay them 15% of my commissions toward draw... NOT 100% of my commissions - but they took it upon themselves to confiscate 100 % on my final day - which I believe is illegal in California.

All the attorneys who want to represent me want me to become the lead plaintiff in a Class Action - because I really do not truley qualify as an excempt employee nor do most others in my position and was not provided a minimum wage, yet at the same time I had extensive monthly business expenses that were required of me - BUT the Company does not reimburse. I thought I would just try to get my commissions with DLSE and keep it short and sweet and not open this whole bug can of worms - but found out the DLSE is at least a year out in their hearings... so I am going to be deciding on which law firm to represent me right now as we speak.... basically they have done this type of behavior with many others.... unfortunately Ithink I may have been the highest dollar amount lost at $23,000 in confiscated commissions - which I wasn't about to "let go"... had it been a few thousand dollars I probably would have looked the other way.

I would though appreciate referrals of any Bay Area Law firms that have proved experience in this type of employment lawsuit though....

 

[tinker925]

Just thought in case someone is researching this I would update this post.

I still am waiting for the ALJ Judge decision... its going on 4 weeks now since my hearing. I called the Appeals Office they sent him a note but the gals told me that it really depends on the judge and how he/she handles his workload.... "Some Judges file a decision in a few days, while others can take months".

So I waited 10 weeks just to get my hearing date after being denied, and now I am going on another 4 weeks (and counting) to get his decision on a case that I feel really should have never been denied.

I did call the main ALJ Judges office in Sacramento a week ago (even though I risk making my original judge mad so its a little scarey going over his head) and they thought the time was getting excessive and sent him a message, but still, a week later, my case is showing still open/no decision submitted.

WOW.... thats all I can say....

 

[commentator]

You're going about it the right way, doing all you can do. Keep after it, maybe you'll hear soon. As I said, if you've been making your regular weeks of certification as they've passed, you will be backpaid, about 14 weeks and counting now.

 

[tinker925]

Update

Again just updating for anyone researching this in California:

FINALLY on Saturday, I received my decision and THANK YOU as all predicted my EDD was reversed and I AM eligible for benefits. very grateful.

SO it took 10 weeks from filing my Appeal to get a hearing.
Another 6 weeks to receive my decision (however it sounded like that was excessive and uncommon from the tone I got from the Appeal staff) SO... at the end of the day receiving your decision depends on the Judge you get, his workload and how he handles his workload.

NOW I am waiting on EDD to release my checks... and hoping and praying that isn't also another battle! I am reading that they take their time doing that too and that I MAY wait another 4 weeks.... GOD, I HOPE NOT!

 

[commentator]

About a week? Should be at the time the next batch of checks are released. That's my guess, and I sure do hope it happens. More than 7 days.... call the appeals tribunal again! Congratulations, incidentally.