We've Accepted Your Resignation: All About Protected Absences

Even employee-friendly California acknowledges that employers have a reasonable expectation that their employees will show up to work as promised, be on time, and will not have excessive absences. Indeed, tardiness and absenteeism can readily serve as legitimate employer defense to employee claims of unlawful termination. Absenteeism or tardies can also cause a denial of benefits with the Unemployment Development Department (“EDD”). However, not all absences are created equal. 

What type of absences and tardies are protected?

Some absences and tardies cannot form the basis of a termination at all. In-fact, depending on the reason for the underlying absence, employees who have been fired for missing too much work can sue for significant damages in a wrongful termination case. It all depends on the underlying reason for the employee’s absence or tardy, and whether or not the employer had reasonable notice. Numerous reasons can create a protected absence or tardy, including jury duty, the death of a family member, civil service obligations with the national guard, and parent-teacher conferences. However, medical reasons for the employee or for an employee’s family member are by far the most common type of protected absence. 

Medical-related absences can range from anything between the common cold and missing work because of cancer. Even if the underlying health condition does not qualify as a “disability” for purposes of the California Fair Employment and Housing Act (“FEHA”) or a “serious medical condition” under the Family Medical Leave Act/ California Family Rights Act (“FMLA/ CFRA”) it can still be a protected absence for purposes of an unlawful termination. Moreover, there is not a specific legal cap on the total number of medical-related absences or tardies that can occur before they become unprotected, automatically allowing termination in all instances. The total number of protected absences and tardies depends on the circumstances of the employee, the employee’s position, and the size and resources of the employer.

Do I need to give my employer notice if I am late or absent?

Almost equally important as the purpose of the underlying absence, is that the employer has notice that the employee has taken an absence or is tardy for a protected reason. In other words, employers who have no clue why the employee is absent or late will not likely face legal liability for terminating an absentee employee, even if the underlying reasons for the absence were protected. For these reasons, it is often helpful for the employee to specifically and proactively inform the employer of any medical issues that are causing absences or tardiness. 

Moreover, legally adequate notice can take the form of a doctor’s note, a note or call from a spouse, or the employee herself. Notice does not have to be in writing, on a human resources department or company form, nor come from a doctor. Similarly, the employee is only required to give reasonable notice to the employer when they are absent or tardy for a protected purpose. Reasonable notice could be months ahead of time, for instance if the employee has a specific date for a surgery. Reasonable notice could also be no notice at all, for instance if the employee woke up violently sick. Lastly, under a legal concept called “constructive notice” an entire company or organization is deemed to be on notice if the employee’s lowest ranking supervisor was notified. 

Can my employer automatically fire me for missing a specific number of work days? 

No, not if any of the missed days are protected. An employment policy that disciplines or terminates an employee who has been absent or tardy a specific number of times is illegal if any of the underlying absences were for protected reasons. These policies are called, “no fault attendance policies.” Such policies are unlawful because they ignore that there are many situations where the employee cannot be punished for missing work. Despite being illegal for decades, no fault attendance policies are still prevalent. 

Can my employer say I resigned if I did not show up at work? 

Although decreasing in prevalence, employers will still frequently tell the employee that the employee has “resigned” if the employee did not show up to work, even if the absence was for a protected basis and the employee had no intention of quitting. This often is told to the employee in a letter from the employer that reads, in substance or affect, “We have accepted your resignation.” 

There is no legal authority in California for this practice. An employee’s involuntary termination, even if legally justified, does not become a voluntary resignation simply by the employer deeming it as such. Unfortunately, this practice is frequently used with the EDD in an effort to deny the employee unemployment benefits. Employers who engage in this practice risk exposure to both defamation and punitive damages.

Have you been fired for taking protected absences? Contact the Law Office of Brian Mathias. 

How to Win Your EDD Appeal, Part 1

All employees who are terminated are presumed to qualify for unemployment benefits through the Employment Development Department or “EDD”. Because of this presumption, it was once common for employees to be readily granted unemployment benefits, even in the case of “for cause” terminations. That has now changed, and following a series of scandals the politically motivated EDD is aggressively denying unemployment benefits when given the weakest excuse for doing so. This means that employees who should readily receive unemployment benefits are being denied and must file a formal appeal to fight back against their former employer and against America’s worst run State-level bureaucracy. 

This article discusses one of the common reasons given by the EDD for denial of unemployment benefits: that the employee broke a reasonable employer rule (22 Cal.Code.Regs. § 1256-42). 

What is misconduct for purposes of the EDD?

For background, employees are entitled to unemployment benefits if they lose work through no fault of their own. This means that employees who voluntarily quit or who are fired for misconduct do not get benefits (Unemployment Insurance Code § 1256). For EDD purposes, misconduct does not automatically exist simply because the employee was fired for cause. Misconduct has to be intentionally bad behavior that threatens or damages the employer in a material or substantial way (22 Cal.Code.Regs § 1256-30 (b). A technical violation is not enough. 

What does violation of a reasonable employer rule mean? 

That the employee broke a reasonable employer rule is just one of many forms of employee misconduct that can disqualify the employee from receiving benefits. To establish that the employee violated a reasonable employer rule and cannot be awarded benefits, the EDD must establish all of the following:

1. The employee’s behavior actually violated the rule: Oftentimes, employers will terminate an employee alleging misconduct, despite clear evidence showing that the employee was just doing their job. An employee’s conduct must have actually violated some rule to be denied EDD benefits. If the employer was simply mistaken or has exaggerated what actually occurred, this can be the best way to win an EDD appeal. 

2. The rule is reasonable: Assuming the underlying conduct actually violated a rule, the EDD must find that the employer rule is reasonable. This means that the employer rule cannot violate the law, that the rule is more than a mere technicality, and that it must be feasible for the employee to adhere to the rule in the first place.  

3. That the employee knew or should have known about the rule: If the employer failed to inform the employee of the rule in the first place, misconduct cannot be found. 

4. The violation is willful or wanton: This means that the employee acted in more than a negligent way when violating the rule. While even some accidents could be considered “willful” the EDD will have to find that the employee made a conscious decision to disregard a rule which led to the accident. Simply being an inefficient or poorly performing employee is not enough to show “willful or wanton” behavior. 

5. That the violation is material: This means that the violation of the rule was more than a mere technicality, but a serious rule that substantively mattered. 

6. That the violation substantially injures or tends to injure the employer: This means that the violation of the underlying rule actually harmed the employer or that the violation could have harmed the employer even if no harm occurred. Rule violations that could not have possibly harmed anyone cannot be the cause of a denial of benefits. 

How to disprove violation of an employer rule at an EDD Appeal:

If your EDD benefits have been denied for violating an employer rule, you as the employee will want to provide facts showing that no such misconduct occurred. This is done through the testimony of the employee herself, through documents, or through the testimony of witnesses. While each case is different, the following sources of evidence can help disprove violation of a reasonable employer rule: 

1. Job descriptions: The job description can be helpful to the employee if it shows that the employee was authorized to engage in the underlying conduct alleged to be problematic by the employer or the EDD. 

2. Authorization from supervisors/ bosses: If the employee’s boss authorized the underlying employee conduct, has tolerated the same conduct from other employees, or has engaged in the conduct themselves, this can disprove violation of a reasonable employer rule. 

3. Selective rule enforcement: If the alleged conduct that violated the rule is tolerated by the employer from some employees, but not others, this too can disprove employee misconduct. A “reasonable rule” that is “materially violated” should lead to employee discipline every single time. 

4. Performance history: Although more serious rule violations could constitute misconduct upon the first violation, it is helpful to show that the employee was a positively performing employee with an absence of prior warnings about the underlying violation. 

5. Employee-intentions: Because only “willful or wanton” behavior can be the basis of misconduct, the employee’s subjective intentions and the reasons for the underlying violation are important. If the underlying rule violation was accidental, or if the circumstances leading to the violation were out of the employee’s control, this should be brought to the EDD’s attention at the appeal.

Have you been denied your unemployment benefits? Thousands of dollars could be on the line. Contact the Law Office of Brian Mathias for more information. 

What happens at an EDD Appeal?

The California Employment Development Department, or the EDD, has long been the worst run bureaucracy in California, even before the COVID-era when its many deep problems and poor customer service were brought to light via millions of additional claims for unemployment insurance benefits in 2020. Things then got a lot worse.  Following Governor Gavin Newsom’s campaign to clawback purportedly fraudulently issued benefits, applicants for unemployment benefits are now being denied benefits at an unprecedented rate. Employees who readily qualify for benefits are now being denied benefits in the name of fighting fraud.  Fortunately, an employee who is denied benefits or is being threatened with having to return thousands of dollars worth of benefits is able to fight back against bogus EDD determinations by appealing. This article will briefly explain the EDD appeals process. 

First, an employee who wants to appeal or challenge an action or decision by the EDD faces a strict deadline of just thirty days. Importantly, this thirty-day deadline often begins from the date on the EDD’s underlying letter to the applicant (called a “Notice of Determination”). This date is often different from the date that the letter was actually mailed or the date that the envelope was postmarked.  Because the EDD will delay the mailing of its letters, this means that the employee will actually have closer to three weeks to appeal. Employee-applicants who want to seek legal help should initiate their search for an attorney right away.  

Second, the appealing employee will want to provide the EDD with a written, fact-based explanation for why the employee is challenging the EDD’s decision and why the EDD made the incorrect decision. This written explanation should be succinct, clear, and based on readily provable evidence such as the employee’s own oral testimony or documents. While the EDD will provide a short, one-page appeal form, the short space provided for the employee to explain his or her side of the story is usually insufficient and an attached letter may be used for additional space. The applicant may also want to provide the EDD with written evidence, such as employment records, along with the written explanation. The appeal letter and any evidence should be copied, scanned, and sent via certified mail to the address stated on the Notice of Determination. It is free for the employee to submit the appeal. 

The EDD will then schedule a hearing with an EDD judge. Unfortunately, this is a process that can take up to six months from the date that an appeal is submitted by the employee.  If the prospect of an EDD hearing with a judge sounds intimidating, do not fret. EDD hearings do not have the look and feel of a regular trial or courtroom and much more relaxed rules of evidence and procedure are applied. Similarly, as of August, 2022 EDD hearings are still being conducting remotely via telephone. 

 Careful preparation for the hearing is critical. Applicant-employees should thoroughly prepare for their hearing by reviewing their own evidence and written explanation, by reviewing the details of their former employment, and by giving practice answers to likely questions. The hearing itself will typically last between 20 and 40 minutes long and the applicant-employee should assume that his or her former employer will also attend the hearing with the aim of denying the employee’s benefits.  The hearing itself will typically begin with the EDD Administrative Law Judge (called an “ALJ”) explaining the hearing process and describing what documents he or she  has received in conjunction with the appeal. The ALJ will then ask the employee background questions about the employee’s title, job responsibilities, their rate of pay and frequency of payment, the circumstances surrounding the employee’s termination, and what the employee has done since the termination to look for new work. The employee and former employer will have an opportunity to present evidence through their own testimony and the testimony of witnesses. The applicant and former employer are also permitted to cross examine each other at the hearing, including through an attorney if they are represented. 

Following the hearing, the ALJ will issue a written decision in approximately one week and will declare the winner. The ALJ’s written decision can also be appealed, however the prospects of winning that second appeal become much more difficult. 

Are you looking for an EDD lawyer? Contact the Law Office of Brian Mathias today. 

Why were my EDD benefits denied?

California’s Employment Development Department, or “the EDD”, issued twenty billion dollars in fraudulent unemployment benefits during California’s early COVID-era lockdowns. Unemployment benefits were automatically and mindlessly doled out to tens of thousands of people who were plainly not qualified to receive them, even under generously written and applicant-friendly rules. 

In an apparent face-saving measure, Governor Gavin Newsom has publicly campaigned on trying to claw back the benefits that should never have been issued in the first place. In reality, the EDD’s “claw back” campaign means that now workers who clearly and readily qualify for unemployment benefits are being categorically denied benefits. Indeed, employees who were granted benefits years ago by the EDD are now being retroactively targeted by the EDD. While it was once rare for employees to need help navigating a once employee-friendly system, employees are now needing legal help with unemployment benefits at an unprecedented rate. 

This article discusses some of the more common excuses the EDD will assert when trying to claw-back your unemployment benefits. 

First, the EDD will assert that the employee is disqualified from obtaining unemployment benefits for making a false statement to the EDD. (Unemployment Insurance Code § 1257 (a).) The law rightfully forbids applicants for unemployment insurance from lying in order to obtain them, legally called making a “willful” false statement or representation. However, the EDD will often confuse, perhaps intentionally, the existence of conflicting or confusing facts or versions of events with the employee lying and use this as a justification to deny benefits. This often arises over the reasons and circumstances of the employee’s termination, including whether they were fired for “misconduct” or when the employee’s last day of employment was. Employers and employees often have a good faith dispute about these issues, but again, this does not mean one party is willfully lying. Worse yet, the EDD will often fail to state in their underlying Notice of Determination what they even contend the employee is wilfully lying about. 

Second, the EDD will claim that the employee is “medically unable to work”. This often arises if the employee suffered from some health condition while employed and/or that the employee’s health factored into the employer’s decision to not accommodate or terminate the employee. Legally speaking, the EDD requires that an applicant for unemployment benefits to actually, “able to work and available to work”. (Unemployment Insurance Code § 1253 (c).) While theoretically some employees may be so injured or unhealthy that they can perform no work whatsoever, the law requires that employees be provided with reasonable accommodations. Only if no reasonable accommodations exist may an employee be lawfully fired because of their medical condition or disability. Moreover, just because the employer  claims that no accommodations exist does not mean that the employee can be denied benefits. Unfortunately, the EDD is often ignorant of the employer’s duty to provide reasonable accommodations and/or will blindly defer to the employer’s version of events and as a result deem the employee unqualified for benefits. 

Third, the EDD will often seek to deny benefits by claiming that the employee quit or resigned from his or her employment. The law disqualifies employees who quit or resign, without good cause, from obtaining unemployment insurance benefits. (Unemployment Insurance Code § 1256.) However, employers will frequently mischaracterize a termination or lay off as a resignation or as the employee “quitting” simply to frustrate the employee’s ability to get benefits. The EDD, who are now incentivized to deny and claw back benefits, will often blindly defer to these characterizations. 

Employees should be extremely cautious when dealing with a politically-charged EDD. The employee should carefully monitor all correspondence from the EDD so that he or she can promptly and timely appeal any denials of benefits. Appeals must be promptly initiated. Are you experiencing challenges in obtaining unemployment insurance benefits? Contact the Law Office of Brian Mathias today. 

Employment Law 101: Unemployment Benefits and What You Need to Know

What are Unemployment Benefits?

Unemployment benefits are offered through California’s Employment Development Department (called the “EDD”). Employers pay a tax to the EDD for every one of their employees.  That tax covers, in part, unemployment insurance benefits paid to eligible terminated employees. The purpose of the tax is to provide the employee with some compensation while unemployed.

How much do benefits pay?

Benefits do not pay as much as you earned at your old job. Benefits range from $50.00 per week to $1,129.00 per week. It all depends on the amount paid while employed. High-wage earners get paid more than minimum wage earners. Benefits last up to one year. Benefits are now paid to the employee through an individual debit card at Bank of America, not by check.

Can I get benefits if I was fired “for cause”?

In most cases, yes. Unemployment benefits are not paid to employees fired for “misconduct.” However, the legal definition of “misconduct” is narrow. Misconduct is more similar to deliberate and obvious wrongdoing. Examples may include drinking on the job, falsifying records, stealing from an employer, fighting with other employees, and insubordination. Ordinary poor performance, employee mistakes, and most “for cause” terminations do not justify a denial ofbenefits.

As an illustration, Arnie is a construction worker for Wave City Construction in Santa Cruz. Arnie is assigned the job of digging post holes for a residential fencing job. Arnie is clearly and repeatedly told by his boss, Gilbert, to not break any underground water and gas pipes. Arnie is even provided a metal detector to locate the pipes in advance. Unfortunately, Arnie ruptures a water line. The customer is very upset and terminates its large contract with Wave City Construction. Arnie truthfully admits to his mistake, but Gilbert fires Arnie on the spot.

Was Arnie fired for cause? You bet. Did Arnie make a very expensive mistake? Sure. Did Arnie deserve to get fired? Probably. However, Arnie would still be eligible for unemployment benefits because his poor performance does not sink to the level of misconduct.

What does the employee need to do to receive and keep getting benefits?

First, an employee must apply for benefits, which can be done online. Then an employee must actively look for a new job and be “able and available” to accept work. An employee’s job search efforts are tracked by the EDD through a form provided by the EDD that needs to be completed and signed every week.

It is critical that employees honestly and accurately document their efforts to find a new job and that they timely return any information to the EDD.

If an employee locates “suitable employment” in his or her customary line of work, the employment benefits cease.

What should I do if my benefits are denied?

Even though most employees are eligible to receive benefits, benefits are sometimes denied by EDD. There are typically three reasons behind the denial of benefits. First, the EDD is the perhaps the largest, busiest, and most unruly bureaucracy in California. The first line employees at EDD will often spend just a few minutes on a case before deciding to approve or deny benefits. The employees at EDD can make mistakes leading to a denial of benefits.

Second, vindictive or cheap employers will often contest an employee’s right to benefits. Some employers will provide false information to the EDD about poor performance or misconduct to cause a denial of benefits.  Employers also have a financial incentive to contest your benefits.

Third, the denial could have been legitimate. For example, benefits could be properly denied if an employee voluntarily quits their job.

If benefits are denied, you should immediately contact an employment law attorney to help you. In the process of answering your questions about unemployment benefits, an employment law attorney may be able to identify valuable claims for wrongful termination or unpaid overtime that you never knew you had.

Employees have thirty days to appeal a denial of benefits. Employees will then have an opportunity to present their case in-person to an administrative law judge in a mini-trial. The trial is held in an office-like environment at one of the many EDD facilities, including one in Salinas (for Monterey-based employees) and one in San Jose (for Santa Cruz-based employees).  

Are you a Monterey, Salinas, San Benito, or Santa Cruz County employee who has been terminated? Contact the Law Office of Brian Mathias for a consultation.