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How to Win an Unemployment Appeal

By on August 23, 2019

If you disagree with the decision of the ALJ, you will have 20 calendar days from the date of the decision to file an appeal with the CUIAB in Sacramento. The date of the decision is generally specified on the first page of the decision.

The appeal must be in written format and does not need to include long statements on why you disagree with the final decision by the ALJ. Your letter should briefly state that you are requesting an appeal of the ALJ’s decision because you believe it is incorrect, and it should give your address, name, social security number, phone number and the case number associated with unemployment benefits. Don’t forget to sign and date the letter and mail it to the Office of Appeals where your case was held.

IMPORTANT TIP: Filing documents with the CUIAB: Each document filed with the CUIAB should be “served” through the mail, on the opposing party (i.e your former employer). The original document should be mailed to the CUIAB and postmarked by the particular date. With every filing you must comprise a proof of service to substantiate that the opposing party was appropriately served.

There are a number of steps that can be taken by individuals in order to significantly increase the probability of a successful appeals. This article discusses both the procedural and substantive actions that individuals should consider prior to and during the appeals process.

Acknowledgement of Appeal

You will receive a letter acknowledging receipt of your appeal from the Office of Appeals. This letter will contain your CUIAB case number and will provide further procedural instructions for you to follow. This same letter would be provided to your former employer if he or she filed the appeal.

Request a Copy of the Record

You may request a copy of the record of your hearing any time prior to 12 days after the mailing of the appeal acknowledgment letter. The record will likely include a copy of the recording from the hearing or a written transcript. You will not be charged for the copy of the records.

Written Argument

Written arguments may also be submitted any time prior to 12 days after the mailing of the appeal acknowledgment letter. The written argument should outline the facts related to the case, all legal arguments, and clarify with supporting reasoning how the decision rendered by the ALJ was incorrect. While the written argument is not compulsory, it provides an opportunity to explain why the decision should be overturned. For this reason, it is highly advised that you draft and present a written argument with your appeal.

Additional Evidence

Generally, you are not permitted to include additional evidence unless for some good cause reason the evidence was not heard at the initial hearing. If you want to submit documents or affidavits that you were unable to present at the hearing then you must request permission on or prior to the date specified in the letter acknowledging the appeal.

Standard of Review

Two of the seven members of the CUIAB will be randomly selected to handle the appeal. These two members will review the record and evidence and decide whether to overturn the ALJ’s decision. If the two member are unable to obtain a unanimous decision, a third member will be included at that time to decide based on majority quorum.

Board’s Decision

Within 60 days of the submission of the appeal, a written decision will be issued by the Board panel.

Notably, the Board panel’s decision may be further appealed to the California Superior Court. The Superior Court appeal must be filed within six months following the date of the mailing of the CUIAB decision. The Superior Court would also perform a review of the record in order to decide whether

The decision of the CUIAB in Sacramento can be further appealed to the superior court. But, this appeal must be filed within the next six months from the date of mailing of the CUIAB decision. In the majority of the cases, you can approach the court only after carrying out the administrative procedure including CUIAB and the ALJ hearings.

The superior court will also review the administrative record, but to decide whether the decision-making process and ultimate decision was the result of prejudicial abuse of discretion, or on the other hand, it was a fair trial where you were fairly afforded your due process rights.

An Abbreviated Timeline of the Complete Appeals Process

  1. Date of ALC decision (20 days)
  2. Simple appeal must be submitted (time for CUIAB process appeal)
  3. Acknowledgement letter sent by CUIAB (12 days)
  4. Request for record of hearing must be submitted (time for CUIAB to process request and send record)
  5. Hearing record sent by CUIAB (12 days)
  6. Full appeal arguments must be submitted

Common Appeals: Voluntary Quits and Misconduct

Unemployment Insurance offers benefits to workers whose employment ended through no fault of their own. There are three general terms used in the unemployment context to illustrate how your employment ceased – via “discharge”, “quitting”, or a “lay-off”. It is important to know the differences between these terms because it will determine whether you meet the eligibility requirements to obtain benefits.

  1. Lay-Off (Lack of Work): A Lay-off occurs when you are unable to continue with the job because your position or job duties have been removed and no additional job duties/position was provided by the company. You are typically eligible for benefits when you have been laid-off.
  2. Quit (i.e. “Resignation”): The term “quit” is defined as the employee’s rejection to continue with his or her employment despite the employer maintaining a position and/or job duties for him or her. Generally, you are not permitted to obtain unemployment benefits if you quit your employment unless it was for “good cause,” as described below.
  3. Discharge (“Terminated” or “Fired”): Discharge is defined as your employer’s refusal to let you continue the job notwithstanding the fact that work remained available. If you were discharged then you are generally eligible for benefits except when your employer can prove that the reason for the termination was based on your misconduct, as described below.

Did you Voluntarily Quit without Good Cause?

If you quit your job, then you will be eligible for the benefits only if you can justify that you took reasonable steps to resolve the issues at work, or in the alternative, you quit for “good cause.”

“Good Cause”

This means you had persuasive reason(s) which forced you to leave your employment despite the fact that you desired to continue working. “Good cause” may include compelling personal reasons (i.e. care-taking of a close family member, pregnancy/maternity; relocation; or domestic violence), or “good cause” may be work-related (i.e. harassment, hostile work environment, unsafe working conditions, discrimination, fraud, or retaliation). Some examples of reasons that likely would not meet the criteria of “good cause” are: unhappiness with a change in your work schedule; a belief that you are overqualified for your job position; not receiving a promotion for any reasons other than discrimination; or a non-discriminatory reduction in hours.

“Reasonable Steps to Resolve the Issue”

This is generally interpreted to mean that you attempted to discuss the issue(s) with your former employer at least on one occasion and he or she did not provide any reasonable opportunity to resolve the issue(s).

IMPORTANT TIP: The primary focus on your claim and arguments at the hearing should be proving that you had “good cause” to end your employment, while simultaneously expressing any and all actions taken to continue with your employment. It is advised that you prepare a written statement describing the specific events which resulted in your ultimate decision to quit, and any and all actions taken by you to reasonably preserve your employment. Some examples of actions taken to preserve your employment may be: requesting time off from work, providing doctor’s notes, communications with HR or supervisor (i.e. text messages and/or emails), etc.

Were You Terminated Because You Committed Misconduct?

As previously explained, individuals terminated for work-related misconduct are not entitled to benefits. To prove misconduct, your employer must prove the following 4 elements:

A Material Duty That You Owe to the Boss

“Material duty” is a duty that is inherently incorporated into the job position. For example, a retail salesperson has a material duty to sell the employer’s products or services, but the salesperson likely does not have a material duty to walk the owner’s dog.

A Substantial Violation of That Duty

“Substantial” means that the employee’s actions were more than a small deviation from the usual or reasonable course of actions. For example, leaving work a few minutes early would not likely rise to the level of substantial, but departing from work several hours before your schedule ends may be considered substantial, particularly if it is a repeated behavior and/or there have been warnings.

A Violation Which Indicates Wanton or Willful Disregard for the Duty

This means that you committed the violation either intentionally, knowingly, or with reckless disregard of the company’s policies and the resulting consequences.

A Violation Which Tends to Spoil the Business Interests of the Employer

This is more of a case by case analysis of the nature of the business and the circumstances surrounding the violation. Some examples may be causing the company to lose a customer due to the violation, disrupting the business operations which resulted in the company losing money, or causing the quality of the product or service to be reduced in some fashion.

The ALJ must decide whether the employer has met all four of the foregoing elements. In order to prevail against your employer, it is advised that you attempt to attack each or as many of these four elements as you can. Some examples would be arguing that the violation does not meet the wanton or willful element because no material damage or harm (i.e. company did not lose money, customers or product) was caused to the business by your actions.

In addition to attacking each of the elements of misconduct, you should also consider asserting specific defenses that have been recognized by earlier CUIAB decisions, such as any of the following.

Poor Performance Defense

In this defense you would allege that your poor performance was not intentional or done with reckless disregard, but rather was just an inability to meet your employer’s desired standards. This defense may not prevail, however, if your employer characterizes your work product as consistently far below a reasonable standard or care, or had dropped to that level leading up to the date of the termination.

Isolated Incident Defense

This defense may be asserted when the termination was a result of a first-time offense, particularly when it is the result of conduct that was no in line with your previous actions, or was caused by a brief lapse in good judgment. For example, if you had achieved several positive reviews for your ability to work with customers in a polite and honest demeanor, and you were fired due to one client characterizing you as rude, this defense is likely worth asserting.

Casual Connection Defense

The employer was show a direct causal correlation between your termination and the misconduct they are alleging caused the termination. If you believe and have supporting evidence indicating that the employer’s alleged reasoning is really just pre-text, and you were actually terminated for a different reason that was unrelated to misconduct, you should assert this defense. An example would be if your employer alleged that you were terminated for arguing with a customer, but you can show that this was the first argument you ever had with a customer and the real reason you were terminated was because you had reported the company to OSHA for unsafe working conditions. Notably, the close proximity in time between the reporting to OSHA to the time of termination would be strong evidence in your favor.

Employer Condones Behavior Defense

This defense should be asserted if you have evidence that your employer has permitted others to remain employed for the same actions that he or she is claiming as the misconduct, or the employer has not disciplined or warned you in the past despite you taking the same actions that they are alleging were the misconduct.

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