CA UI appeal

[anthonyp82]

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

I was denied my unemployment benefits. I would like to appeal. I feel I was retaliated against and do have some proof: I was given a write-up on 1/7/2010 and then not given any other notice regarding my attendance until my termination on 5/7/2010. Prior to this termination, I had voiced my concerns in being transferred to a work site in Orange County CA, which would have posed a great difficulty to me (when I was hired, I was told I would only be required to work in downtown Los Angeles.)
After the write up on 1-7-10 and until I was fired on 5-11-10, I had been late during that time, but was never told anything from my boss or HR, all they would do is tell me what a good job I was doing at the sites I was at, it was only after I told my boss that I couldn't make it to our orange county office since I had my car in the shop, that he tore me a new backside and told me "I'd be sorry if I don't make it there", then I was told by my HR that it was fine I didn't make it to the OC office, to just go to a different LA office, two days after that I was fired. they never talked to me or anything any of the times I was late, even after I was about 3 hours late, they also used dates I was written up for on 1-7-10, some of the dates I was also out due to a work injury, all the dates I had doctors appointments and was taken off work by the doctor were used in the in write up for my termination. Also after I was late that 3 hours I was told it is don't worry about as long as Im there its ok.

I would like to appeal this but would like to know if anyone else has fought a case like this and won, and if so what steps should I take in appealing it?

I'm in Los Angeles CA

 

[CourtClerk]

You have to be told not to be late to work? You don't think that habitual tardiness is a good reason for being terminated?

 

[swalsh411]

If you can show that they did not follow their established discipline process in terms of warnings, or told you it was OK if you were late from time to time, you might be eligible for benefits.

 

[commentator]

First, send back notice to them that you wish to appeal this decision. This letter does not have to say anything else, except that you wish to appeal. You do not have to make your argument in this letter. You will be able to request either a telephone or in person hearing, at which time both you and the employer will be able to show up and present your case.

Make sure that you keep doing your weekly or bi-weekly certifications for benefits. If you were to win approval in the appeals hearing, you would be back paid for these weeks if you have certified for them. It may be quite a while until your hearing is held.

Now, what you are going to have to do is sit down and figure out a logical presentation of your case. Begin with what you were told about lateness when you began there, what was the company's established policy about lateness if they had one. If not, of course, you'll mention that. Be sure you say if it was common practice for others who worked there to be tardy, that no one seemed to make a big deal of it, and no one else was disciplined for it. Of course, if you were the only big offender, if you were known throughout the business as the "late John Smith" then you need to avoid this issue.

The biggest problem you'll have to get around, first question I would have to ask you is, would your termination have been more fair and justified if they had fired you on any of the occurances of lateness between January and May? Did you know that being late could possibly lead to your being fired? If so, why were you late again after you received that Jan. warning?

What you will need to go is sit down and figure out exactly how many times you were late. Go over the occasions they listed as lateness and pick out the ones that were due to illness or injury. How many does that leave? Those are the ones that will be problematic in your appeal. They may accept the fact that you couldn't be at work on time due to illnesses, that you produced or could have produced a doctor's excuse for each of these times. But they'll not be as impressed by the times you were late since your warning that were not related to illness or work related injury.

Biggest issue, the company did not follow its own attendance/lateness policies, (because they did not actually fire you after giving you the warning) so they did not administer the policy in a consistent manner. You were given no feedback that these incidents were unacceptable, no disciplinary measures were taken, and then after you had refused a work assignment, they came in and fired you for tardiness.

Big issue. Were you actually late on the day you were terminated, or on a day before or sometime close there? In other words, what was the precipitating incident for the termination? Was it that you told your boss you couldn't make it to the Orange County site, and then he called you in three days later and said you are being fired for tardiness? If so, when was the last incident of tardiness? After or before you didn't make it to Orange County? This is really important.

What you are going to have to answer, and if you do not, you will be asked by the referee, I suspect, is Did you know that the next incident of non-medical related lateness could result in your termination? and your answer is going to have to be something like, "I thought I might be terminated after I was given the warning in Jan, but when time went on, and I had some (unavoidable of course!) latenesses and nothing was ever said, and I was being given positive performance feedback about my job, I assumed it was not going to be enforced and I didn't expect to be terminated."

And of course you'll be able to say that you suspect the reason you were terminated was that you were told to show up in Orange County, and you had established when you were hired that this job would be in the downtown area only. This made them angry with you and they fell back on the tardiness issues, which they had not been enforcing before, to get rid of you. Don't get too enthused with the "retaliation" word or issue. Just state your case reasonably.

Chances? Some, but not great. Worth doing, but not guaranteed. If they'd enforced their policies, they'd have you dead to rights. As it is, it's a maybe thing, depends a lot on what they have as evidence, how many times you were tardy after warning without a medical excuse, knowing that it could reasonably result in your termination any time it happened.