I’ve been working for a company for 1.5 years and I’ve been a manager there for 9 months. My boss just sold half of the company to another company so that he could sit back and he a silent partner, and now I have a new regional manager and a new owner to report to.
Long story short, I’m basically being pushed out. I don’t know if it’s that the guy doesn’t like me or whatever but he’s just plain rude, has created an environment where I’m afraid to go to work for fear of getting written up for something bogus and being fired. I’ve already received 2 write ups (one of which I can dispute with several emails and I told them this and they still gave me the write up.) The second write up is basically his word against mine and I wrote in the comments section that what he was saying was not true. I’ve been told that if I get a third write up I will be let go, and they’re trying to talk me into stepping down from my position and taking a lower position in the company with less money. I think it’s because they feel like they pay me too much money to run my store. They’ve made several comments about my pay which was agree upon between me and my previous boss before he sold half the company.
My regional manager is playing games with me and giving me instructions, but when I do what he told me, he comes back and saying that what he “actually meant” was for me to do something else and that I “wasn’t listening and using common sense.”
Anyway, California is an at-will state so they’re perfectly within their rights to do what they’re doing and push me out, but I’m scared that I will not get unemployment because of the write-ups even if I’m saying that they’re not true. Does anyone have any experience who can tell me what my chances are of getting unemployment with the write-ups? I’m documenting everything I can on my own with a notebook, but I don’t think our company has an HR dept that I can file a formal complaint with and I’m afraid to ask because the new 50% owner is on the side of the regional manager, so I feel like I have no one to appeal to.
In order to receive unemployment benefits in CA, you have to be separated from employment through no fault of your own. When it comes to separation for cause, the threshold the state (EDD) must demonstrate rises to misconduct. It is extremely difficult to demonstrate misconduct.
In general, “not using common sense” will not amount to misconduct. The devil is in the details. You can consult with a lawyer about your options if you feel the fee is worth the investment. For peace of mind, it’s probably worth it.
As an example, a decision I recall speaking to misconduct involved a taxi driver. He fell asleep at the wheel and got into an accident, rear ending someone IIRC, but was not under the influence of drugs, alcohol or anything illegal. The court ruled this was not misconduct. It is a precedent drawn upon by EDD administrative law judges when determining appeals.
I should mention that there is a good chance EDD will deny your claim. It seems they like to do this with anyone fired for cause by the employer. You’ll need to appeal to an ALJ in order to receive benefits if this happens. Several years ago, it took about 10 weeks for my case to be heard. I had to fill out the paperwork in the meantime as if I was unemployed, but received no benefits.
A couple weeks later, I received an envelope with the judge’s 20+ page decision, ruling in my favor. Two weeks later I got a fat check from EDD, catching me up on my benefits.
I have had to file for unemployment twice in my life. I was turned down the first time, back in 1985. In California, by the way. I’ve also been the office manager who dealt with the CA EDD for 25 years.
File your claim. If you are turned down, you can make an appeal. I think you have a decent chance of success if you can prove that the complaints about you started after the new owners took over. If the write-ups are indeed obvious nit picking, of course.
On the other hand, some companies routinely appeal all decisions granting unemployment benefits to employees even if there is no reason to. In fact a whole industry exists just to appeal benefit decisions.
The purpose of these appeals is to delay and intimidate. They know that a lot of people will be scared off by an appeals hearing (or that they will have gotten a new job by the time the hearing is scheduled and can’t take time off of work without risking their new job) and will lose by default. Also, if there is any possibility of a wrongful discharge or other lawsuit, they can sometimes get former employees to say things under oath that will hurt them in the lawsuit.
If your employer does appeal, don’t get scared and don’t take it personally. It’s just a business tactic, it doesn’t mean that they actually have any grounds to win the appeal. Attend any hearings and respond to any requests from the EDD in a timely manner.
And keep a detailed journal of where you have looked for and applied for work, even if they didn’t accept your application.
You might look into suing on the basis of constructive termination. Basically, that means that your employer has made the workplace so unbearable that you were forced to quit. States vary in their interpretation of this concept, but CA is one that recognizes it as a legitimate complaint. You would have to have documentation of what’s going on and probably corroborating witnesses. I’d check with a lawyer before you quit. You might talk to them and confront them with what they are doing and that you know you are not welcome there. You could then tell them that you’ll go quietly with a layoff as long as they put in writing that you are “eligible for rehire”, which is the litmus test for a future employer to hire you. If they refuse to do that, I would then mention that you are hiring an attorney to look into wrongful termination.
**What are the eligibility requirements? **
To be entitled to benefits you must be:
[ul]
[li]Out of work due to no fault of their own.[/li][li]Physically able to work.[/li][li]Actively seeking work.[/li][li]Ready to accept work.[/li][/ul]
**How are UI benefits calculated? **
Benefits are calculated using an individual’s earnings during a specific 12 month period (this is called a base period). The base period begins approximately 15-17 months prior to the date the claim is filed. The amount paid each week is calculated based on the calendar quarter with the highest earnings during the base period.
One thing to keep in mind for your situation is this section
Job Offer Made Prior to Filing a Claim A refusal of suitable work without good cause may be disqualifying even when it occurs prior to the filing of a claim as long as there is a causal connection between the job refusal and the current unemployment.
It is not necessary for a claimant to be in claim status when the offer is made in order for there to be an issue under Section 1257(b). If the job offer takes place during a period of unemployment which is prior to the filing of a new, additional, or reopened claim and the refusal of the job offer is related to the claimant’s current unemployment (causal connection), a potential disqualification exists.
The Board has consistently held that the language of Section 1257(b) is clear and unambiguous, and under its terms a claimant is subject to disqualification from benefits even though the cause of the disqualification may have arisen prior to the filing of the claim. In other words, it is immaterial that the offer of employment was refused before the claim for benefits was made. However, any full-time, permanent employment after the refusal and prior to filing the claim breaks the causal connection. Work that is offered and accepted as temporary work does not break the causal effect unless the job offer was made while the claimant was actually employed.
Example 1: An employer, in response to a DE 1545, advised the Department that she had offered the claimant a full-time permanent job on June 22, which the claimant declined. The offer was made seven weeks prior to the claim filing. The claimant had worked on a two-week temporary job between June 22 and the claim filing date. It has been established that the employment offered was suitable and the claimant has not provided a good cause reason for refusal. In this case, there is a definite relationship between the claimant’s current unemployment and the offer of full-time permanent employment. The two-week temporary job does not break the causal connection.
Example 2: The same employer responded regarding another claimant stating she had offered the claimant a full-time permanent job on June 24, but the claimant was working on a full-time temporary job which was to last another four weeks. The employer could not wait and hired someone else to fill the position. The claimant completed the temporary assignment and filed a claim. In this case, the job offer was made while the claimant was fully employed. The claimant would not be subject to the disqualifying provisions of Section 1257(b).
The length of any intervening employment is not material. The controlling factor is whether the intervening employment was permanent rather than temporary in nature. If the claimant was hired as a permanent employee and, due to a slow down in the employer’s business, was laid off after a few weeks, there would be no causal connection between a prior job refusal and the claimant’s current period of unemployment. Additionally, it should be noted that the Board held in P-B-314 that a claimant who is employed on a part-time basis, earning less that his or her weekly benefit amount, is “unemployed” and subject to disqualification the same as a totally unemployed individual.
I’m going to give you some bad but cathartic advice.
Confront them. Tell them you’ve noted the bogus write ups and you want to know what is going on. Ask them if they have a professional problem with your work and if so what you need to do to correct it. Tell them if it is a personal problem they need to drop it right now because while they may reserve the right to fire you, you reserve the right to sue them and go public once you’re no longer in their employ. If they want to get personal, advise them you will get professional and once the letters from your lawyer get to their general counsel (assuming they have one) that high school bullying satisfaction they’re feeling will fade very quickly. DEMAND to know who is in charge of HR and how you can get ahold of them NOW. You have every right to that information and they have every right to be sued into destitution if they won’t provide it. Tell them you are documenting everything and you will not go quietly under any circumstances, especially fear and intimidation.
If they do fire you, get your legal options out of the way first and if that doesn’t work out for you, I suggest as vicious of a smear campaign as you can get away with without getting yourself sued. Truth is an absolute defense against slander so stick to the facts and you can cause them an immense amount of damage reputation wise. Hell, get yourself sued if you have to. Why? Because it makes them look like total assholes. They’ll be spending money to shoot themselves in the foot.
Companies can suffer plenty of damage from outside sources. However, nothing hurts a company like the sting of a pissed-off ex-employee who wants to tell everyone what kind of jerks he’s been dealing with. If they don’t realize that, they don’t deserve you and they do deserve every single bad thing you can do to them.
Bullies do not like being confronted. They may respond in a typical weak-minded way and fire you on the spot. They may also realize they just kicked a tiger in the nuts and they will back off if they know what is good for them. I recently left a shitty company that ran by fear and intimidation and I haven’t looked back, except briefly to ensure the steaming turds I was sending their way were landing on target. You should never have to go to work in fear of some power-tripping asshole. Tell him what the score is and he’ll either back the fuck off or do something stupid. Either way, you win.
I’m interested in that interpretation too. Can an employer offer you your own position and cut your salary in half but prevent your claim because they did, after all, offer you a job?
All you can do is document everything and apply for unemployment. If your employer disputes it, just bring your documentation to the unemployment hearing and the arbitrator will decide.
From past threads I’ve read here, it seems the arbitrator decisions are not 100% consistent. So one arbitrator may say one thing and a very similar case will go the other way.
If you lose the arbitration, you can still appeal through a court, but that take a very long time.
Best advice, document and I hope your looking for a job. I had two months notice and I spent at least 4 hours everyday looking, on days I worked 8 hours and I spend 8 hours a day on my days off.
Really? Why not? I am an employer. I’ve had three situations over the years where people quit their job and then applied for UC. I received notification, including an appeal form which I completed and submitted. In all three situations my appeal was approved.
Had I not appealed it would have cost me money, certainly more than what the five minutes it took to complete the form required.
My interpretation is that if you are in a temporary job and you know it will end, you cannot refuse work in the meantime, wait for the term to end, and collect unemployment. OTOH, if you are permanently employed and no direct knowledge it will end, are offered an alternative job, and turn it down, then you did not deliberately chose to become unemployed at a certain time and do qualify. Am I reading it right?
I have trouble imagining that an employer can offer you the same job at substantially less simply to avoid unemployment insurance, but I find all aspects of US employment law are already incredulous.
In my experience, yes. I was employed FT as an account manager, had just received a great review and very nice raise, all was well, until TheKid and I got sick and I was out of the office for 7 days. When I returned, I suddenly was the worst employee ever; however, they were still willing to offer me a PT job at less than half of what I had been earning.
When I applied for UI, it was denied as the employer had offered me what they considered an equivalent position.
Luckily, I found a different job the same day and didn’t need to pursue it.