How to File An Unemployment Appeal California

This guide is for attorneys who help claimants navigate and access Unemployment Insurance benefits. If you’re an employee, please consult with an attorney because every case has different facts.

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Introduction

What Is The Purpose Of This Guide?

The purpose of this guide is for attorneys who help claimants1  navigate and access Unemployment Insurance benefits in the State of California. It is for law students, community workers, advocates, and attorneys, whether they are offering brief assistance or full representation to claimants. The guide will offer a brief overview of the claim process but focus on aspects which require the most assistance, such as appeals or filing the claim.

  • Chapter 1 will focus on the framework and history of Unemployment Insurance and the employer’s role.
  • Chapter 2 will explain the amount and duration of Unemployment Insurance.
  • Chapter 3 will give an in-depth overview of the requirements for eligibility.
  • Chapters 4 will go through the steps to claiming benefits.
  • Chapter 5 will explain the decisions that the Employment Development Department may come to.
  • Chapter 6 will take a comprehensive look at the appeals process.
  • Chapter 7 will discuss different special programs such as work-sharing, partial claims, Disaster Unemployment Insurance etc.
  • The Appendices provide extra resources.

Chapter 1.   How The Unemployment Insurance System Works

The Social Security Act, signed by President Roosevelt in 1935, gave the states financial incentive to create Unemployment Insurance programs. These programs were to take care of workers who lost jobs due to circumstances outside of their control and who were seeking work. 2 Later that year, California created the Unemployment Reserves Act and benefits were first paid at the start of 1938. Since then, the federal and state laws have been amended multiple times, but the Unemployment Insurance system is still quite similar to the original.

The current Unemployment Insurance system is still based in federal law but controlled by the states, which makes it different from many of the other states’ social insurance programs.

What Part Does The Federal Government Play?

The federal government establishes the minimum requirements for the state social insurance programs. The Legislature that sets these requirements are the Social Security Act and the Federal Unemployment Tax Act. It is the Secretary of Labor must certify that each state unemployment insurance system is compliant with the federal law. 3 The Secretary of Labor must conduct a quality control program to assure that the state complies with the federal standards. 4

The federal government gives the states two financial incentives to ensure their unemployment insurance systems allow federal monitoring and pass compliance checks. Firstly, employers will receive a tax credit of up to 5.4% against the 6.2% of federal unemployment tax. Secondly, the state will receive a federal grant to cover the cost of the program administration. These state grants are paid by the remaining 0.8% federal unemployment tax that employers pay.

What Part Does The State Government Play?

Each state designs its own Unemployment Insurance program as long as it meets the federal requirements. The state’s system will determine:

  • The benefit amount
  • Eligibility for benefits
  • Disqualification from claiming benefits
  • State tax rates
  • State taxable wage base

The state will receive the funds for the administration of the program from a federal grant. Raising the money to pay the benefits is the state’s responsibility. In California, the state does this by requiring employers in the state to pay a payroll tax.

California has only one piece of legislature that deals with unemployment insurance law, the California Unemployment Insurance Code. This code was created to create a financial cushion for those suffering unemployment through no fault of their own. There are two administrative agencies for California’s Unemployment Insurance program: the California Unemployment Insurance Appeals Board and the Employment Development Department.

The Employment Development Department

The Employment Development Department (EDD) 6 is responsible for:

  • Determining the eligibility of people claiming benefits
  • Collecting taxes from the employer to fund the benefits
  • Giving out benefits checks
  • Providing job seeker services
  • Adopting, amending, and revoking regulations7

Every year, nearly $5.3 billion is paid in Unemployment Insurance benefits, and 2.4 million new claims are filed and processed. 8  All of the unemployment insurance services are conducted over the phone, online, or through letters. The only exception is some of their job services.

The EDD has an online job bank called CalJOBS, which all claimants are required to use in conjunction with their job seekers services. If there is a requirement for more specific training or job placement, then the claimant will be referred to a local or state agency.

The California Unemployment Insurance Appeals Board

The California Unemployment Insurance Appeals Board or CUIAB is an independent agency. They are run by a seven-member appeals board who are appointed by the Speaker of the California Assembly, the California Senate Rules Committee, and the governor.

When an appeal is requested, the CUIAB holds a hearing with an Administrative Law Judge presiding. If either party ask for a review of the Administrative Law Judge’s decision, then the case is reviewed by three members of the Appeal Board. A\Three hundred twenty thousand cases are appealed each year, of these 20,000 go to the second level of appeal.

The Appeal Board is given the authority to review, decide, and even designate precedent if a case has a significant policy or legal determination that may recur. These precedents will shape the decisions of the EDD Director as well as the CUIAB and Administrative Law Judges. To this date, the Appeal Board has made 500 precedential decisions. 9

The Role of The Employer

The employer’s most important role in the Unemployment Insurance system is that of the funder. Every employer in the United States pays 0.8% Federal Unemployment Tax to the federal government. They also pay payroll taxes for each of their employees to the state to fund the unemployment benefits. 10 These funds are pooled by the state, but there is a record of how much each employer contributes, it is called a reserve account. 11 The payments for their former employees will come out of the reserve account.

The rate of the payroll tax per employee depends on the amount in the employer’s reserve account. If the reserve account is high, the employer will be taxed at a lower rate. 12 However, when the reserve account it low because of a high number of former employees, the employer will be taxed more in future years. 13 This system is based on other insurance models, the more claims against the insurance policy, the higher the premiums.

By employing this taxation system, the hope is that employers will have a financial incentive to create less unemployment. However, in practice, this is not the case. It just means that employers tend to challenge benefit claims, so they don’t have to pay more tax. Employers will often argue for every employee their fire that their former employee is ineligible for benefits. The reasoning behind this is just to lower their rate of tax. A lot of companies are outsourcing their human resources department to agencies which have policies of contesting all Unemployment Insurance benefits claims. These are done in every single case, regardless of whether or not the former employee is eligible. Unfortunately, this can mean in some cases; former employees do not receive the benefits they are eligible for and rightly deserve.

Additional Responsibilities of Employers

In addition to paying the correct taxes, employers have other requirements and roles in the Unemployment Insurance system.

  • Not deducting Unemployment Insurance Tax from wages – employers are not allowed to take the unemployment tax from an employee’s wage. 14 Even if an employee and employer have an agreement, this is illegal. 15
  • Unemployment Insurance benefit waivers – an employer may offer a former employee severance pay if they release or agree to drop claims against their former employer. While this practice is legal for a lot of types of claims, an employee cannot waive their right to claim Unemployment Insurance benefits.
  • Retaliation – An employer is not allowed to discriminate or terminate an employee or job applicant if they seek information from the EDD, testify in any proceeding related to Unemployment Insurance, or cooperate with an EDD investigation. 17 Retaliation is also prohibited if an employee files for unemployment benefits if their work schedule changes and they have considerably fewer hours. If an employee feels they have been retaliated against, they can file a complaint within six months with the California Labor Commissioner. 18 There is a six-month statute of limitations.19
  • Notice posting – Employers must have a notice of Employee rights to Unemployment Insurance posted in their office at all times. 20If they do not comply with this, it will be considered a misdemeanor. 21
  • Notice on separation – when an employer lays off, discharges,22or places an employee on a leave of absence, the employer must give the employee these two notices:
    • Notice in writing of their rights to unemployment insurance benefits. This should be in the form of the pamphlet “For Your Benefit, California’s Program for the Unemployed” which is found on the EDD website. This notice needs to be given by the date they will no longer work for the employer.
    • Notice in writing that the status of their employment is changing. The written notice needs to include: the name of the employer, name of the employee, the employee’s social security number, what the action was (layoff, discharge, leave of absence, or change from independent contractor to employee,) and the date of the action. 23This notice must be given by the date this action comes into effect.

If an employer fails to meet these minimum requirements, they will be given a misdemeanor. 24

  • Right to employment records – Employees have the rights to access their personnel files at any time. 25The California Labor Commissioner has ruled that this applies to current and former employees. Employers must also be able to produce a copy of all employment records with the employee’s signature if it is requested. Employers must keep the following information for each employee for a minimum of three years:
    • The date of employment
    • Hourly rates and the number of hours the employee works at each hourly rate
    • The beginning and end time of each work period including breaks
    • Hours worked by the employee
    • Deductions
    • Gross wages
    • Net wages27

A copy of this information must be made available to a former employee on request by 21 calendar days from the date of request. 28  If this information is not given to the employee within 21 days, then the employer will pay the former employee a $750 penalty. 29

Chapter 2.   Duration and Amount of Unemployment Insurance Benefits

This chapter will give general information about the amount of benefits a claimant will receive and the duration of their pay. The eligibility for benefits is discussed in the next chapter.

An Unemployment Insurance benefits claim starts with a valid submission to the EDD. The Sunday before the application submission is called the effective date. From this date, the base period, benefit year, and waiting period are all calculated. 30

  • Base Period – This is the 12 month period which ends three to six months before the effective date. 31 This is calculated differently depending on the month of the effective date.
    • If the claim is filed in January, February, or March, the base period is 12 months ending on the previous 30th of September.
    • If the claim is filed in April, May, or June, the base period is 12 months ending on the previous 31st of December.
    • If the claim is filed in July, August, or September, the base period is 12 months ending on the previous 31st of March.
    • If the claim is filed in October, November, or December, then the base period is 12 months ending on the previous 30th of June.
  • Benefit year- 52 weeks starting from the effective date. 32
  • Waiting Year – There is a one week waiting period in which the claimant will not receive the benefits they would otherwise be entitled to. It is usually the first week of a new claim. There is only one waiting period per benefit year.

The base period and benefit year will help determine the weekly benefit amount and maximum benefit amount.

Weekly Benefit Amount

The EDD will determine the claimant’s weekly benefit amount. This is a fixed amount that the claimant will receive each week that they are eligible for full benefits. In some cases, such as the claimant earning wages during the week, the claimant may receive less than the weekly benefit amount. The claimant will never receive more than the weekly benefit amount.

The weekly benefit amount is not based on need; it is calculated on the wages paid to the claimant during their highest grossing quarter in the base period. 33 Only the wages paid by covered employment are considered in this calculation.

  • Wages paid – when calculating wages in the base period, it only takes into account wages paid in the base period, not wages earned. 34This distinction can make a real difference since wages are paid after the period of work.
  • Covered employment – Some types of employment and employers are excluded from the Unemployment Insurance system. In these cases, wages earned in covered employment will not be calculated in the weekly benefit amount.

Maximum Benefit Amount

A claimant will have a maximum benefit amount they will be paid during one benefit year. This is the lower of:

  • 26 times her weekly benefit amount
  • Half of her base period wages35

Claimants may get their benefits intermittently or continuously throughout the benefit year. In some cases, claimants may be temporarily ineligible for benefits for part of the benefit year. This does not reduce the Maximum Benefit Amount of the claimant.

For example, if a claimant earned $10,400 in their highest earning quarter during their base period, the weekly benefit amount is $400. The Maximum Benefit Amount would be capped at $5,200 (one-half of their base period earnings), so they would only get thirteen weeks of benefits at the weekly benefit amount. Not all claimants will get 26 weeks of benefits.

Taxes

A claimant will not pay state income tax on their Unemployment Insurance benefits. They will pay federal income tax, but the first $2,400 of their Unemployment Insurance benefits are tax-free. Claimants can choose whether they want the federal taxes to be deducted from the bi-weekly checks or if they would prefer to receive the entire benefits and pay the tax later.

By the end of January, the EDD will post-tax for 1099G to claimants. This form will summarize the total taxable unemployment benefits the claimant received for the prior calendar year. Claimants will use this when filing a federal income tax return.

Chapter 3.   Eligibility Requirements

Eligibility for Unemployment Insurance benefits has two stages.

Stage 1 – When a claimant submits a new benefits claim the EDD will conduct an initial eligibility determination based on three criteria. Firstly, the claimant has to have earned a certain threshold of base period earnings in covered employment. Secondly, the claimant must have satisfactory immigration status. Thirdly, the claimant is unemployed through no fault of their own.

Stage 2 – If the claimant is satisfactory in stage 1, the EDD will look at their ongoing eligibility. To receive their weekly benefits, claimants must prove to the EDD that they:

  • Are physically and mentally able to work
  • Available for suitable work
  • Did not refuse a suitable job offer
  • Is actively looking for a job
  • Is unemployed or underemployed

These eligibility requirements are discussed further in this chapter.

Base Period Wages In Covered Employment

The first point that the EDD will look at for eligibility for Unemployment Insurance benefits is if the claimant has been paid a certain amount of base period wages for work in covered employment with lawful immigration status. In this section, we will unpack all the parts of this requirement.

Sufficient Base Period Wages

The EDD has a minimum threshold for the wages paid to a claimant during the highest-grossing quarter of their base period. In order to meet the requirements for sufficient base period wages, a claimant must have:

  • Been paid a minimum of $1,300 in their highest-grossing quarter of the base period

Or

  • Been paid a minimum of $900 in the highest-grossing quarter of the base period and have gross wages for the rest of the base period of at least 1.25 times of the highest-grossing quarter.

For example, if a claimant was paid $1,000 in the highest-grossing quarter of their base period, the total base period wages must be 1.25 times that, so $1,250. If they meet this requirement, they are eligible for the minimum weekly benefit amount. If the claimant’s base period wages are higher, they will have a higher weekly benefit amount.

Covered Employment

To be included in base period earnings, the wages must have been earned in covered employment. These are types of employment where the employer pays into their reserved account on behalf of the employee.36 The majority of types of work are covered employment, but there are some types of work which are not covered, such as:

  • Household or domestic services in a private home. This includes jobs like housekeepers, babysitters, caretakers, chauffeurs, cooks, gardeners etc. 37The only exception is if the employer pays more than $1,000 to any of their domestic employees in a calendar quarter in the current or previous year. 38
  • Employees who are close family members such as parents, spouses and children. Stepparents and stepchildren are included. 39
  • Federal workers40
  • Employees of religious organizations such as churches41
  • Newspaper delivery workers under eighteen42
  • Students and their spouses who are employed by schools, universities, and colleges43
  • Employment outside of the United States unless the company’s principal place of business is California or the employer or company is organized under California laws44
  • Work experience programs for students under the age of 2245
  • Hospital workers who are students46or patients47

Most of these categories will have different rules and exceptions. Covered employment does not include work done under self-employment or as an independent contractor.

Lawful Immigration Status

Wages earned in the base period while the claimant was a US citizen, US national, or lawful alien are the only ones counted towards Unemployment Insurance eligibility. 48  Lawful aliens are those who are admitted for permanent residence, for the purpose of working or permanently residing in the US under the color of law (PRUCOL). 49

If a worker is currently authorized to work in the United States, their wages before they were authorized will not count towards base period earnings. If a worker is a lawful alien, then the burden of proof lies with them in terms of proving how much of the base period services were performed under lawful status. 50

Disagreeing With the EDD’s Calculation of Base Period Earnings.

A claimant may disagree with the EDD’s calculation of their base period earnings for a number of reasons. There is a process to dispute the calculation with the EDD; this is discussed further in Chapter 5.

Satisfactory Immigration Status

So that they are eligible for Unemployment Insurance benefits, a claimant must prove that they are a US citizen, US national, or alien with satisfactory immigration status. 51  Satisfactory immigration status means that the claimant has a legal right to live and work in the United States. 52

The EDD has to determine the citizenship status of all claimants as part of their eligibility check. 53  If a claimant is neither a US citizen nor US national, then the EDD must contact the INS to check the claimant’s immigration status based on the documents provided. 54

This verification is done either:

  • Through an automatic system known as SAVE (Systematic Alien Verification for Entitlements system)

Or

  • By the INS through photocopies of the documents, the claimant submits. .55

If a claimant says they have satisfactory immigration status but does not file their claim with evidence, then the EDD must provide a reasonable opportunity to present documents to prove their claim. 56  Reasonable opportunity is 21 calendar days from the date of submitting the claim. 57  In this reasonable opportunity period, the EDD may not delay, reduce, deny, or terminate the claimant’s eligibility, and they also may not do the above until they have a response from the INS. 58

If the claimant does not have satisfactory immigration status, then they are not eligible for benefits. If the EDD had paid benefits pending immigration verification, the claimant might be required to pay them back.59

Unemployed Through No Fault of Their Own

The legal wording is “a claimant must have been separated from their most recent employer through no fault of their own.” 60  This is usually the eligibility section which employers contest and is the most frequent reason for someone being denied benefits.

Most Recent Employer

The benefits the EDD pays the claimant come from the reserve account of the employer for the claimant’s base period. However, the eligibility for benefits is based on the separation from the most recent employer. 61  This is the job the claimant was separated from immediately before they applied for benefits, even if they had the job for one day. 62

Most recent work does not focus on whether it was covered employment or not as in calculating base period wages. 63  The most recent job refers to services performed as an employee in return for wages, not a profit share. 64 Through this definition, self-employment and an independent contract is excluded from most recent work,65  unless the claimant has elected coverage under the Unemployment Insurance Code section 708. 66  If a claimant has worked as an independent contractor, then the EDD will look at the separation from their last job as an employee, even if that was months before the benefits claim.

Presumption In Favor Of The Claimant

The EDD assumes that the employee is separated through no fault of their own unless the employer gives written notice to the EDD to the contrary. This written notice will need to include sufficient facts. 67  When giving their written notice, the EDD gives an employer a 10-day window to submit their facts about a claimant’s eligibility. 68   If facts aren’t provided, or the facts do not show sufficient fault of the claimant, then there is a rebuttable presumption which places the burden of challenging eligibility on the employer. This presumption is rebuttable and can be overcome if for example, the claimant’s facts render them ineligible.

If this presumption comes up in the initial eligibility stage, then it is re-triggered automatically on appeal. 70

Types of Separation

There are two main types of separation from an employer, either discharge or voluntary quit. These two types mean different eligibility criteria for Unemployment Insurance. The EDD will pay close attention to the facts surrounding the separation and how to classify the separation. Other types of separation which have their own eligibility standards are layoffs, “constructive quits” or job losses as a result of strikes or trade disputes.

The Moving Party

If there is a dispute over whether the claimant quit or was fired, then the EDD will examine the facts to determine the moving party. The moving party is the party whose actions led to the ending of employment. Even if the employer and employee agree on what to call the separation, the EDD will still make their own determination. 71

The moving party is the employer in the following scenarios, thus labelling these separations as discharges:

  • Traditional Discharge – the employer does not allow the claimant to continue working when the claimant is ready, willing, and able to work. 72
  • Quit in Lieu of Discharge – if the employer tells the employee they will be fired if they do not quit. Alternatively, if the employer allows characterizing the separation as a quit, so their future job prospects are not in jeopardy. 73
  • Discharge Before the Effective Date of Resignation (Without Pay) – If the employer fires the claimant before the date of their resignation and does not pay the worker until that resignation date. 74
  • Leaving the Day of or After the Discharge Date – If the worker leaves early on the day of the discharge date75 or works additional hours or days after the discharge date. 76

In the following circumstances, the worker is the moving party, and these separations will be classified as quits:

  • Traditional Quit – the claimant, leaves their job while work is available and their employer will give them work.77
  • Quit in Anticipation of Discharge – The claimant quit because they believed they might be fired.
  • Discharge Before the Effective Date of Resignation with Pay – When the worker gives notice of resignation and the employer discharges them but pays them up to the resignation date. 78
  • Resignation before the Effective Date of Layoff or Discharge – The claimant leaves their job before the effective date of layoff or discharge. 79
  • Quit With an Offer to Continue Working – If the claimant resigns but offers to work until a replacement is found. This is the case even if the employer accepts the offer but then discharges the claimant before they found a replacement.80

There is one rare circumstance which fits into neither of these categories; the EDD categorizes it as a mutual mistake. It happens when a claimant sincerely and reasonably believed they were terminated and the employer reasonably thought the employee quit voluntarily. 81

For example, if an employer yells at an employee and takes away their employee ID and keys, and the employee says “I’m leaving” and walks off the job and doesn’t return. The employer might have been intending just to suspend the employee and took the employee’s actions as a voluntary quit. The employee, on the other hand, may have read the employer’s actions as being fired. If each party’s actions and beliefs are reasonable, then a mutual mistake is considered a no-fault separation and therefore the claimant is eligible for benefits. 82

Discharges

To be eligible for unemployment benefits when a claimant is discharged, their discharge must be due to no fault of their own. This means that their discharge cannot be related to misconduct. 83  If all of the following elements are present, then the discharge was due to misconduct. 84

  • The claimant owes a material duty to their employer – a material duty is something that is an integral part of the job eg. Turning up to work on time.
  • There is a considerable breach of that duty – this means that the breach needs to be a significant one, rather than trivial. For example, reporting to work one or two minutes late would not count against the claimant in a claim eligibility check.
  • The breach shows willful or malicious disregard for their duty – the claimant breached their duty intentionally or with complete disregard for the consequences.
  • The breach harms the employer’s business – this could include sabotaging the product or making the business look bad to customers.

The wording of California state law states that a claimant will receive Unemployment Insurance benefits if they are unemployed through no fault of their own. 85  Therefore, testing whether a claimant was discharged due to misconduct is important in determining eligibility for Unemployment Insurance benefits.86

It is the employer who must prove the above four elements of misconduct.87

Over time, a guide has been created that list certain discharge reasons as typically being classed as misconduct or not.

What Reasons Are Not Considered As Misconduct?

Under the following circumstances, employers will have difficulty in showing these reasons for discharge as misconduct.

  • Performance failing to meet the employer’s standards – Inefficiency, ineptitude, failing to meet an employer’s standards, or poor work performance is not counted as misconduct. 88A claimant may not feel comfortable admitting that they were fired due to ineptitude, but it will not affect their benefits claim. The only cases where poor work performance will count as misconduct is if an employer can show the claimant had an intentional disregard for the employer’s business interests. If the employee is knowingly negligent, fails to perform, or repeatedly acts negligently after warnings, then that will count as misconduct. 89
  • Good faith error in judgement or a single incident of negligence- if the grounds for dismissal was an isolated incident of poor judgement or negligence, then it is not usually classified as misconduct.90This can only be used as a defense if the incident was unusual conduct, uncontrollable, or caused by a momentary lapse in judgement. If the claimant was repeatedly warned by their employer regarding similar conduct, then the claimant will not be able to use this defense. 91 Similarly, if there is a higher duty of care in the case of doctors or aircraft pilots, the claimant will not be able to use this defense. 92
  • Employer has acted on their internal definition of misconduct – Employers will often dismiss staff or challenge Unemployment Insurance benefit claims on the basis of an employee’s actions violating their internal code of conduct. Eligibility for Unemployment Insurance benefits is based on the legal definition of misconduct.
  • Employee fired for an off-duty offense – Even if an employee performs illegal actions, if it is done outside of the workplace and work hours, it does not count as misconduct. 93 Duty of care does still need to be taken into account, and if the crime hurts the employer’s interests then it can be considered misconduct.94
  • There is no connection between the misconduct and the dismissal – If a claimant committed misconduct, but can show they were fired for another reason, then they still claim benefits. This defense can be used when there were other circumstances that reduce the connection between misconduct and discharge.
  • Employer condones the misconduct – If the employer does not immediately reprimand or dismiss the employee immediately following misconduct, then the employee may be eligible for Unemployment Insurance benefits. 96 A significant amount of time has to pass between the misconduct and dismissal, though. If the employer can give a good reason for time passing before dismissing the employee, then the employee cannot use the condonation defense. 97 If the claimant can prove the employer accepted similar misconduct from other employees without reprimand, then the claimant can use the condonation defense.

 

What Reasons Are Considered Misconduct


Insubordination.
This refers to any behavior that intentionally goes against the employer’s interest and the standard of behavior an employer could reasonably expect.98  Insubordination has to meet the legal definitions of insubordination, rather than the employer’s ideas. Generally, for insubordination to be classed as misconduct, it needs to happen multiple times with warnings. If a single act causes severe damage to an employer’s interests, it can be called misconduct.

Examples of subordination can be disobeying an order, exceeding authority, making a statement that is damaging to the employer, or swearing at your employer. We will discuss these points below.

  • Disobeying an order – this only applies to disobeying reasonable orders which do not include those outside of the job scope, illegal acts, or those that will endanger other workers. 100 This also only applies to orders coming from a supervisor or employer, not a co-worker or another person without authority. 101 However, refusing to cooperate in a reasonable manner with co-workers may be considered misconduct even though it is not insubordination.
  • Exceeding authority – When an employee goes beyond the authority expressly granted by an employer or indirectly implied by the employer not objecting to certain conduct, that is considered exceeding authority. 102 If the act which exceeds authority was necessary to prevent damage to the interests of the employer and there was no time to check with the employer, or it was a good-faith error in judgement then it will be excused. 103
  • Disputing authority – There are remarks or statements that damage or have the potential to damage an employer’s interests. 104This can also refer to the manner or time and place in which an employee has a dispute with an employer. 105  Differences of opinion, misunderstandings, and disagreements are not considered as misconduct. 106
  • Ridiculing authority – Unless it is joking with no malice or an error in judgement, this will be considered as insubordination.
  • Cursing at your employer – In some cases, this may be considered misconduct, in others not. The normal practices of the workplace and the circumstances surrounding the remark must be examined. 107 If the offensive remark was a one-off occurrence, then it is often considered an error in judgement. 108

 

Absenteeism and tardines. These are the two most common misconduct charges. The EDD evaluates them in the following manner.

  • Absence or tardiness due to illness – If the employer was informed or there is a good reason why they weren’t, then this is not misconduct. 109
  • Absenteeism for reasons besides illness – It is not misconduct if the employee has been given approval either in advance or when they notified their employer of the absence. 110 If approval has not been given, but the absence is a first time incidence of error in judgement, then it is also not misconduct. 111 Similarly, if there is a substantial, real, and compelling reason112  for the employee’s absence, and they notified the employer of the reasons and the absence, then it is also not misconduct. 113
  • Tardiness – Repeatedly showing up late to work is a reason to be dismissed for misconduct. 114 A single case of tardiness will only be considered as misconduct if the employee has been reprimanded115 for other violations of the employer’s standards or the incident of tardiness causes considerable injury to the employer. 116 If there are no prior warnings, though, or a good reason for tardiness, then it will not be considered as misconduct. 117

Dishonest acts or statements. This will be considered misconduct in most cases, even if there were no prior warnings. 118  Good faith misunderstandings, based on how a reasonable person would understand the situation are an exception. 119 If the employer knew about the dishonest act and did not reprimand the employee, then it can be argued that the employer condoned the dishonesty.120

Misappropriation of property or funds. Regardless of the circumstances stealing property belonging to your employer121 or co-workers122 is considered as misconduct.123  If the employer can show the worker should not have had the property and the worker does not have a reasonable explanation. For this dismissal reason, there is a “preponderance of the evidence” which means that if the employer can back up their claim that the employee should not have that property and the employee does not have a reasonable reason; it is enough to make the claimant ineligible for benefits. The claimant does not need to be found to be guilty as in a normal criminal proceeding.124  However, if the situation is a good faith mistake in following the employer’s rules, then it is not considered misconduct. 125

Lying in the job application. This is considered misconduct, 126  the only exception is if it was unlawful for the employer to ask the question in the first place127 or the question was outside what is “proper and necessary” to protect the employer’s interests. 128 If there was a slight exaggeration that was not intentional or false, then it would not be misconduct. 129

Discourteous behavior towards the customers or public.  This is only considered as misconduct if the employee had previous warnings or reprimands about the behavior. A one-off incident is not considered misconduct unless there is significant rudeness. 130

Failure to get along with co-workers or deliberately annoying them.  This is only misconduct if the employee has previous reprimands and warnings for this behavior. Without a prior warning, it is not considered to be misconduct. 131

Violence in the workplace or while working.  It is misconduct for the employee who started or provoked the fight, regardless of the reasons.132  If the employee was defending themselves against an attack that they did not provoke or begin, then it is not misconduct. 133 Threats of violence or physical harm is also considered misconduct. 134 The only exception is if the worker against whom the threat was made didn’t see it as a threat, rather as a joke or as inconsequential. 135

Sleeping on the job.  Unless it was a short, isolated incident, or not done deliberately, and did not endanger others, it will not be considered misconduct.136 If the employee did not realize they were tired or could not have prevented their tiredness in any way including taking sick leave, then they will have a better case.137

Alcohol or illegal drug use.  This is generally considered misconduct if this behavior is engaged in at the workplace, and not if it is done off-duty. This explained more below.

  • On duty: An employee has a duty to remain sober on the job, so even a single isolated incident of consuming alcohol or illegal drugs at work or come to work under the influence is considered misconduct. 138If the employer allows of condones the behavior or if the use if common to the job, such as drinking alcohol for a bartender, then it is not a misconduct.139

If the employee suffers addition or alcoholism, then they will still be disqualified from receiving benefits, regardless of the compulsion to consume the intoxicants from the addiction. 140 However, if the employee does a treatment program and is certified as being fit to return to work.141

  • During a lunch period or break: Taking drugs on a break is considered misconduct, regardless of the circumstances. 142 Drinking alcohol while on break is not misconduct unless there is an employer rule that the employee knew about, or they had previous warnings. 143
  • Off the job: As long as it does not affect their ability to work, 144especially for dangerous jobs, alcohol and illegal drug use while off the job is not misconduct. 145  Even if the employer discovers illegal drug use through a drug test, this rule still applies. 46 If there is a higher duty of care owed due to the employee’s position, such as a doctor, then use, or possession off-duty may be misconduct. 147

Good Cause and Reasonable Steps To Solve The Problem

To be eligible for benefits, a claimant who quit their job voluntarily has the following requirements to be eligible for benefits. The employee must have:

  1. Quit with good cause.
  2. Taken reasonable and appropriate steps to solve the issue and keep their job.

Good Cause

Under the law, “good cause” is a reason that is substantial and compelling, that would make another reasonable person who genuinely wants to keep their job take similar action. 148  The reasons might be personal149  such as child care, 150  or work-related, such as unsafe work conditions. 151

  • If the employee has multiple reasons for quitting: Even if the employee has multiple reasons for quitting, as long as one of the reasons fits the definition of good cause, and it was a major factor in the decision to quit then it is fine.152
  • It must be their genuine reason for quitting: Even if good cause has been discovered in the EDD’s investigation of the employer-employee relationship, unless it was a reason for quitting, the claimant is not eligible for benefits. Additionally, if too much time passed between the situation arising and the employee resigning, the EDD may not believe that it is a genuine reason.

Reasonable Steps To Keep Their Job

Even if good cause exists, unless the claimant takes reasonable steps to keep their job, they may not be eligible for benefits. 155  This will negate good cause. Reasonable steps are an employee discussing the problem with their employer and giving them a reasonable opportunity to fix the issue. Even though the claimant must seek some solutions, 156  they do not need to exhaust all avenues. 157  In some cases, such as personal reasons for a good cause, the employer may not need to be involved. For example, if childcare was the reason, the claimant must seek other options such as daycare.

  • Leave of absence or transfer – If a leave of absence or transfer would solve the problem, and the employee does not request or accept those options, then they may negate their good cause. 158 If the employee does not request leave or a transfer because they do not know about the employer’s policy or if the employer would not have granted it, then this may be excused. 159

If there is a good reason for a claimant rejecting an offer of leave of absence or a transfer, 160 then this may be excused. For example, good reason would be a transfer that would mean a three-hour round trip commute and increased transport costs. 161  An employee may also reject a leave of absence if they do not believe it to be bona fide. Bonafide means that both parties believe the employee will return after their leave. It is not guaranteed that they will be reinstated, but they will receive preference in hiring. 162

  • Emergency exceptions – If the employee resigned due to an emergency, then reasonable efforts to keep their job does not apply. An emergency would be an immediate threat to the employee or worksite, such as the risk of illness, injury, fire, or a bomb threat. 163 Family emergencies also fall under this category, such as a parent who has a short time left to live. 164 A leave of absence is not necessary.

The burden of proof is on the employer to submit evidence to prove there is no good cause for the employee quitting. 165  The employer must submit these facts in writing to the EDD. The presumption that the employee quit with good cause stands if the claim is appealed. If the employer submits sufficient facts to overcome the presumption of good cause, then the claimant must prove good cause.

Examples of Quits With Good Cause

  • Relocating for a spouse or partner – if an employee moves to maintain a relationship with their spouse, 166  registered domestic partner, 167 or betrothed to whom marriage is imminent168  have good cause to quit their job. This is only if the move would make commuting unreasonable169 and a transfer is not available. 170  An employee can also tell their employer that their reserve account will not be charged due to these reasons for resigning. 171 This will mean the employer will not challenge the claimant’s benefits claim. 173

If the employee is relocating because of an unregistered domestic partner or boyfriend/girlfriend, then this does not give good cause. 172  The exception is if they have children with their partner and live together.

  • Caring for family members – If there is no other reasonable alternative, an employee quitting to care for their minor children is good cause. 174In terms of other family members, it is only good cause if there is no other choice and the person is sick and needs help with their household chores or personal care. 175  Good cause does not apply if the reason for quitting is to provide emotional care, 176  unless that person is at risk of death. 177

Unless the situation is an emergency, the claimant must look into a leave of absence or reasonable alternatives before they quit to care for the family member. Even if the employee quits with good cause to care for a family member, they will be ineligible to claim benefits while the care stops them from seeking work. Once their care obligations are finished, they will be eligible to claim Unemployment Insurance benefits.

  • Domestic violence – Leaving a job to protect one’s self or children from domestic violence, whether threatened or an incidence is good cause. 179 The EDD may want proof in the form of a police report or restraining order but does not often request it. 180  Additionally, the claimant must show that a transfer or leave of absence was not a reasonable solution or not available. 181

If an employee quits due to domestic violence, then the employer’s reserve account will not be charged, this means the employer should not challenge the claim. 182

  • Pregnancy – If a pregnant employee has to quit for their or their fetus’ health, then evidence like a doctor’s note will be good cause if a leave of absence was not available. 183
  • Reasonable good faith to fear for one’s health – In most cases, this will be good cause. 184   If an employee fears exposure to lead, for example, would have good cause to quit. 185  Similarly, an employee who resigns due to the workplace being so cold they have numb hands or feet also has good cause. 186  Objective evidence such as a doctor’s note187   or aggravating a pre-existing health condition is necessary. 188  If a doctor’s letter was not obtained before the decision to quit, then it should be sought as soon as possible.

If a transfer or a leave of absence would solve the problem, the claimant must seek one of those two solutions, 189  unless the situation is an emergency. 190

If a claimant knew that the work may aggravate a pre-existing health condition when they accepted the job, then they will not have good cause to quit for that reason. 191

  • Unsafe working conditions – If the unsafe working conditions are more than the usual day to day risks of the job, then it will count as good cause. 192 For example, there are some risks to the job of a window washer, but if an employer’s equipment make it riskier than usual, they have good cause. Before quitting, the employer must bring the hazard to the employer’s attention and give them a reasonable time to correct it before quitting. 193  The only exception is if there is an immediate threat of serious illness or injury. 194  Serious illness or injury is defined as a serious risk to need immediate emergency medical care and may cause loss or impairment of a body part, or permanent disability, or death. 195
  • Intolerable working conditions or abusive supervisors – Good cause includes working conditions that are harmful to an employee’s wellbeing, or the actions of a supervisor that are particularly oppressive or harsh. 196 For example, if a supervisor repeatedly criticizes an employee in front of a customer until they are reduced to tears, that is harsh and oppressive. 197 Stressful working conditions which lead to insomnia or a nervous disorder are good cause. A disagreement with a supervisor or job dissatisfaction is not good cause. The employee must notify their employer of the issue and give them reasonable time to fix it before they resign. If the employee knows the employer cannot fix the problem or has refused to fix the problem when employees have asked, then the employee does not have to complain. 198
  • Illegal harassment or discrimination – An employee has good cause to quit if they are discriminated or harassed because of their sex, age, marital status, sexual orientation, ancestry, race, religion, color, disability, national origin, medical conditions, or any other protected reasons.199 Good cause is not applicable if the employee believes the employer’s actions were harassment or discriminatory; they need to provide proof to the EDD that the employer’s actions were illegal. 200  The employee must be able to give specific examples and explain why they believe the employer’s actions were discriminatory.

 

If the discrimination or harassment was unintentional, then the employee must talk to the employer and give them a chance to fix it, 201  but if the act was intentional or is persistent, then the employee does not have to let the employer remedy it before resigning. 202  For sexual harassment cases, the employee does not need to take steps to keep their job if it would be pointless. 203  In cases of sexual harassment, the steps for determining what would be pointless is less demanding to protect the employee.

  • Duties outside the scope of job description – An employee has good cause to quit if the employer imposed duties which are beyond the usual scope of employment if the duties are unreasonable or create an undue hardship.204 Duties are considered unreasonable if:
  • The duties cause a substantial (threefold for example205) increase to the employee’s workload. 206
    • The duties are beyond the physical abilities or skills of the employee. 207
    • The duties are so below the employee’s status or job that they could be considered demeaning.208 For example if a pottery hand decorator was ordered to clean the bathroom. 209
    • The duties are imposed with the goal of punishing, harassing or demeaning the employee.210

The employee must speak to the employer about the problem and try to resolve it before quitting. For example, they can ask the employer for help with the workload. However, if colleagues have raised the issue and the employer has refused to correct it, they do not have to talk to the employer before quitting.211

  • Illegal or unethical orders – If an employee is asked or told to engage in dishonest, unethical, immoral, or illegal acts, they have good cause to quit.212 For example, if a salesperson is being asked to give misleading or false sales pitches, they will have good cause to quit. Before quitting, an employee must speak to their employer to ask to fix the problem or to be able to miss the objectionable task.213
  • Fraud or misrepresentation in the employment agreement – An employee has good cause to leave their job if the employer breaches the employee’s contract or misrepresents the duties, hours, pay or working conditions in the job offer. The misrepresentation must be of a material term of employment rather than an incidental matter.214 If the misrepresentation is of the job role, then the employee must try out the duties for a short period of time, so they don’t negate their good cause. 215
  • Withholding of wages or other violations of the Labor Code – An employee has good cause to quit if the employer illegally withholds wages, 216or other violations of the Labor Code such as paying wages late or with bad checks. 217  If there is a good-faith dispute over wages, it happened one time, and the employer promptly paid the wages when they noticed the mistake, then the employee does not have good cause. 218 To have good cause, the employee must notify the employer of the missing wages. 219
  • Considerable reduction in pay or job downgrade – If the employee reduces the pay rate by a considerable amount, then the employee has good cause to quit. A considerable reduction is defined as a reduction of 20% or more. 220 If the employer reduces the pay rate and also downgrades the employee’s position, then the employee will have a good cause if:
    • The employee has prospects for another job with another employer that gives them wages similar to those before the pay cut. 221
    • The job they might be able to get will need skills similar to their position before the downgrade. 222
    • The cost and distance of commuting means that it is difficult to accept the job downgrade or pay reduction. 223
    • If the employee accepts the job downgrade or pay reduction, they will use opportunities for advancement, seniority, or recall rights. 224

A change in shift times, hours, or workdays will not be good cause, even if the change reduces the pay.

  • Choosing to be laid off in a collective bargaining agreement – A worker in a union that chooses to be laid off instead of an employee who is less senior has good cause to quit. 225 If the situation is not as part of a collective bargaining agreement, the EDD will look at the worker’s choice to take a layoff instead of job downgrade or pay reduction.
  • Substantial commute or transport difficulties – Depending on the distance and travel time of the employee’s commute, this may be good cause when compared to local transport options226 and the cost vs wage. 227    For example, if a worker on a low wage had a 15-minute commute which increases to an hour and a half with higher transport costs, then they may give good cause. If a higher paid worker’s commute increases and they could easily afford it then they may not have good cause. The employee must show there were no other reasonable alternatives for their commute. 228
  • Valid offer of a much better job – Quitting to accept a valid job offer (one with a start date229) and the job offer falls through, is good cause. 230 The new job must have been better in the factors the claimant considered, such as pay, advancement opportunities, skills, working conditions, location, and seniority rights. 231 A better job offer would mean an increase in wage or benefits of up to 10%. If there are increases in other factors, a smaller pay increase may be considered substantially better. For example, a job with only 5% wage increase but a shorter commute and regular shifts might be considered better than a job with varying shifts and a longer commute. Even if the pay does not change, a permanent role is always considered better than a part-time or temporary job.232  Quitting to look for another job is not good cause. Taking a short break between jobs does not destroy good cause. 233 However, when the job falls through, the employee must ask for their old job back or show that the former employer will not have rehired them. 234
  • Religious beliefs or objections of conscience – If an employee quits because of a conscientious objection will have good cause if they can show:
    • The objection must be valid, not just to avoid work235
    • The working conditions or duty must have a direct effect on the employee’s beliefs236
    • The employee must have been unaware of the duties which clash with their beliefs or must show that the objection arose later. 237 For example, if a waiter takes a job knowing they would have to serve alcohol when it is in violation of their beliefs.

Claimants must show that their religion directly bans its members from doing the work they object to if they quit due to beliefs. 238  For example, if a restaurant starts selling alcohol and a will not transfer a waiter who says it is against their religious beliefs. Employees must seek alternative ways to resolve the issue before resigning. 239

Quits That Are Not With Good Cause

  • Disagreement with a manager or job dissatisfaction – This is usually not enough for good cause, 240 unless the situation is really abusive or intolerable. There is a normal amount of bad and inept supervisors and management in all jobs, so a certain level must be tolerated.
  • Changes in the schedule or reduced hours – A change in shifts 241 or schedules is not good cause if the issue is personal preference, slight hardship, or inconvenience. For it to count as good cause, there needs to be a substantial reason why the claimant can’t work the schedule, or show the employer’s changes as arbitrary, 242 for harassment, or unnecessary. 243  If a schedule change means an employee’s wages are reduced, then the free-time is to be used to look for a full-time job, rather than quitting. If the employer decreases the employee’s wages or reduces their position as well as the schedule changes, then it may be good cause.
  • Searching for other work – It is not good cause to resign and search for a new job,244 unless the claimant has to quit a part-time job as it hindered them looking for full-time work.245 As discussed above, if the claimant quits because they want to accept a genuine job offer, then that may be considered good cause.
  • Not qualified for the job – If the employee resigns because they believe they lack the experience or training to do the work, it is not good cause. 246 However, if the employer changes the job or creates new duties, then that may be good cause to resign.
  • Overqualified for the job – If an employee quits because they are overqualified for the job, then they do not have good cause. 247 They may be able to argue that there is good cause in extreme situations, where the skills required for primary duties are so below their skill and status, but it is rare. 248 If the employer misrepresented the skills for the job during the job application and hiring process, then there may be good cause.
  • Transitioning to self-employment – It is not good cause to resign to start one’s own business249 unless the employee reasonably anticipated losing their job. The self-employment must also be a certain way to earn a living such as if they had a definite job offer to be an independent contractor.250
  • Going back to school – Unless the employer requested the course or schooling, 251quitting a job to attend training or school is not good cause. 252  If the law says that the employee must attend school because of their age, then that is good cause. 253  If the apprenticeship or training is state-approved there may be good cause. 254 Other reasons are not good cause.
  • Resigning in anticipation of dismissal – It is not good cause if the employee quits because they think they will be dismissed soon, 255 unless there is another good cause reason as well. 256  Even if the employee has been given a date they will be dismissed, there must be another good cause reason why they need to leave their job before that date. If the employer tells the employee they will have to quit, or they will be fired, the employee will be considered as dismissed by the EDD.
  • Protesting the employer’s disciplinary actions – An employee does not have good cause if they resigned because they don’t agree with an employer’s disciplinary actions. 257 There is a potential for good cause if the employee took reasonable action to keep their job and:
    • The discipline was for a non-work-related conduct or conduct that would not hurt the employer’s interests. 258
    • The discipline was related to a rule that the employee was not aware of. 259
    • There was a delay between the conduct and the discipline, so the employer seems to have condoned the behavior. 260
    • The discipline or the way it was handled was an overreaction or unreasonable for the conduct, or the employer was hostile or abusive towards the employee. 261

For example, if a supervisor regularly criticizes an employee in front of customers for mistakes that were not the employee’s fault or not work-related, the claimant has good cause. 262

Constructive Quits

A constructive quit is when the employee does an intentional action which means they are likely to be fired, so they quit before they were dismissed. If this is the only factor in the separation of employment, then the claimant is not eligible for benefits as they did lose their job through their own fault. 263  There are three elements required for it to be a constructive quit:

  • The claimant intentionally committed an act for which they may be reasonably fired.
  • The act made it impossible for the employer to keep the employee on.
  • The claimant knew that the act would jeopardize their employment, so quit. 264

Constructive Quit Examples

  • Absenteeism due to incarceration – this can be a constructive quit in two ways, if either the claimant was discharged for being incarcerated for 24 hours and missed work, or if the worker pleads guilty and is convicted of the offence or any other offenses. 265If the reason is neither of these, the worker will have been discharged. 266  If the claimant accepted incarceration rather than paying a post-conviction fine because they were too poor to pay it, then it is also a discharge. 267  In those two cases, the EDD will determine whether there was a case of work-related misconduct. 268    Absence due to incarceration is not usually classed as misconduct even if there is a lack of notice, as usually they are concerned with being released. In those two cases, the claimant is likely to be eligible for benefits.

 

If a claimant did not plead guilty or has not entered a plea, then they can claim benefits with the risk of having to pay them back if they are convicted. Alternatively. They can wait for the court to make a decision on the criminal charges and receive back pay for benefits once they are acquitted. 269

  • Loss of a license needed for the job – If an employee is discharged for losing a license necessary for their job and they lost it because of their own fault, it is considered a constructive quit. For example, if a truck driver lost their license because of drunk driving, it is a constructive quit. 270 If the license is lost through no fault of the employee’s, then the claimant is eligible for benefits. This could be a good faith inability to pass a test. 271
  • Refusal to join a union – If being a union member is a condition of employment in a collective bargaining agreement, and an employee willfully refuses to pay union dues and therefore is no longer a union member, then this is a constructive quit. However, if there is good cause for the employee to refuse it, such as illegal requirements, then the employee is eligible for benefits. 272
  • Refusing to work certain hours or days – If an employee refuses to work certain hours or days, and is therefore dismissed, this is a constructive quit. 273  For example, if an employee is dismissed because they refuse to work Sundays so they can spend time with family, this is a constructive quit. 274
  • Employer’s liability insurer refuses to cover the employee – If the following two conditions are met, then a constructive quit happens, even if the employer dismisses the employee. Condition one is the employer has no alternative other than dismissing the employee (they could not get other insurance or transfer the employee.) Condition two is the employee knew or should reasonably have known their actions would risk their job. 275
  • Temporary work authorization expiration – Unless there is proof that the failure to renew the work authorization is not the employee’s fault, this will be a constructive quit.

Layoffs

If an employee is laid off because of a lack of work, this is neither a voluntary quit or a discharge. A layoff is the involuntary dismissal of an employee for business reasons (no available work or cost-cutting.) The employee’s job is eliminated, so they are not replaced.

Claimants who are laid off due to a lack of work will be eligible for benefits. 276 This includes all employees, whether they were on permanent or temporary contracts and were laid off either temporarily or permanently. If the separation was due to an expiration of a contract277 or because the business is sold, 278 the claimants are eligible for benefits.

The distinction between a layoff and termination is a difficult line to determine. A layoff is when an employee is dismissed, and their position no longer exists, whereas a termination is an employee being dismissed and their position is open. Because a layoff means they have presumptive eligibility for benefits (meaning the employer will have to give a reason why they shouldn’t receive benefits) employees are likely to characterize their employment separation as a layoff. This means that claimants often mischaracterize their separation as a layoff. Sometime it will be purposeful, other times because they don’t know the difference. This may not only hurt their chances at benefits but mean they get charged penalties for giving false statements.

Trade Disputes and Strikes

If a worker voluntarily leaves their job due to a strike or trade dispute, they are not eligible for benefits, even if there is good cause for leaving. Furthermore, they will be ineligible for benefits as long as the trade dispute is active in the workplace. 279

The EDD must determine all the following statements are true:

  • There was indeed a strike
  • The claimant voluntary left their job
  • The claimant left their job and stayed unemployed due to the trade dispute
  • The strike has not ended and is still actively in progress.

What Is a Trade Dispute?

A trade dispute is any kind of controversy which can be reasonably related to the employment and is for the purpose of collective bargaining. 280  Trade disputes are lockouts, and strikes, or any other organized activity by employees (even unionized employees) which is for the purpose of achieving better working conditions. 281

Voluntary Leaving The Job

An employee is only considered to leave their job voluntarily if it is their decision282  rather than the employer coercing them into leaving or not providing any work. 283

  • Striking versus lockout employees – Employees who strike are not eligible for benefits because they do not provide services to their employer during that time. Locked out workers are usually eligible for benefits as they were ready to work, but their employer prevented them from working.

 

However, if a union in a multi-employer bargaining unit calls a strike against one employer, all members in the collective bargaining agreement who lose their jobs during the strike will be ineligible for benefits. This applies even to those who showed up to work but were locked out. This is because of the lockout, and therefore, unemployment is as a result of the original union action. 284

  • Workers who refuse to cross picket lines – If a worker makes a principled decision not to cross the picket lines, either of their own or another union striking for the same employer, they are classed as voluntarily leaving their jobs. 285  If their decision not to cross the picket line was due to a reasonable fear that their physical safety will be harmed, then their actions are involuntary, and they will be eligible for benefits. These have to be specific threats that would be reasonably taken seriously, rather than the usual vague threats. 286
  • Workers who are laid off during the strike – If a worker was not involved in the trade dispute was laid off because the employer’s work has dried up due to the dispute, then they are eligible for benefits.

Trade Disputes That Cause Unemployment

A trade dispute simply pauses the employer-employee relationship; it does not end them completely. Therefore, if an employee is unemployed due to a trade dispute, that is only the reason for their unemployment as long as the trade dispute is happening. If the employer has to permanently close their office because of the trade dispute, then the trade dispute is no longer the cause of the separation.

  • Employee finds another job – If during the trade dispute or because the office closes, an employee finds another full-time job in good faith with another employer, then the trade dispute is no longer the cause of the employee’s unemployment. If the employee loses the new job, then as long as the loss was through no fault of their own, they will be eligible for benefits. The employee must be able to prove the new job was a legitimately a new job, and not a temporary job until the strike finished. If the employee loses the job shortly after the trade dispute finishes, then it will likely be seen as a temporary job by the EDD. 287
  • Employer permanently replaces the employees on strike – If an employer permanently replaces the people on strike, then they are seen to be severing the employer-employee relationship, then this is the cause of the unemployment, not the strike. 288 Threats of replacing striking workers are not counted as severing the relationship. 289  If the employer allows any of the workers to return to their jobs, even if they have replaced the majority of striking workers, then the employment relationship continues. If a worker chooses not to return to their job, they will not be eligible for benefits. 290
  • Employer rejects the employee’s offer to return to work – If an employee makes an unconditional and good-faith offer to return to their job during the trade dispute, and the employer rejects it then they are seen as severing the employment. 291
  • Firing or resignations – If the claimant quits or is fired during the strike or lockdown, then the employment relationship has been severed. Whether they receive benefits will be decided by the EDD after looking into whether they were fired for work-related misconduct, or if they quit without good cause. If there was a no-strike clause in their collective bargaining agreement, then an employee may be fired for misconduct. 292

Trade Dispute Must Be In Active Progress

If an employee loses their job because of a trade dispute, they will be eligible for benefits once the trade dispute is no longer in active progress. 293  The trade dispute comes to an end when the employees return to work, or when the employment relationship is severed. 294

Able To Work

A claimant must be mentally and physically able to work, so they are eligible for benefits. Being able to work means they must be capable of doing their regular duties and job. 295  The EDD will look at how the pregnancy, injury, or illness will affect the claimant’s ability to work when looking at eligibility for benefits.296

The Claimant’s Customary Occupation

To determine ability to work, their ability must be judged against their customary occupation, so a job similar to their last job or one for which they are skilled. 297  If there is a new illness or injury which means they cannot use their skills, but they have other skills, experience, or training in another type of work, they are still considered able to work.

If a claimant can still work but needs accommodations such as limited hours, or lifting restrictions, they are usually considered able to work. 298  If there are multiple restrictions in place, they may be considered unable to work, especially if their job cannot accommodate their restrictions. 299  If the claimant’s disability means they need additional training to change their occupation, then they may claim benefits from the California Training Benefits Program.

Temporary Illness or Injury

If the claimant cannot work for one or a few days because of temporary illness or injury, then the claimant’s weekly benefit amount will be reduced on a pro-rata basis. 300  For example, if the claimant needed bed rest for the flu or pregnancy for three days, then they would only receive four days’ worth of benefits pay for that week. If a claimant has a permanent or chronic medical condition, and they restrict their search to part-time work, then they will not have their weekly benefit amount reduced. 301

  • State Disability Insurance Benefits – if the injury or illness means the employee cannot work for eight or more consecutive days, 302 then they would be eligible for temporary State Disability Insurance Benefits. The employee can file a claim with the EDD to ask for their benefits be changed from Unemployment Insurance to SDI Benefits.

Available For Suitable Work

To be eligible for benefits, the claimant must be “available for work” 303  which means that they are ready and willing to accept suitable work and there is good cause for any restrictions on their ability to accept employment. Also, a substantial field of employment is available to the claimant in their labor market. 304 The terms are defined as follows:

  • Suitable work – This means the work must be in the claimant’s customary or usual occupation for which they have the skills. The work is reasonably fitted if the following factors would influence another reasonable person in similar circumstances305:
    • Physical fitness and prior training
    • Degree of risk to morals, safety, and health
    • Length of unemployment
    • Prospects for securing work in their customary occupation in the local area
    • Prior earnings and experience
    • Length of commute

If an employer does not possess the appropriate state license, does not carry workers’ compensation insurance, or does not make the necessary payments to the state Disability Fund, then that is not classed as suitable employment. 306

  • Good cause – The restrictions must be similar to that which a prudent person who genuinely wants to find employment would put on their job search if they were in similar circumstances. The claimant must also have looked into other reasonable alternatives before placing those restrictions. “Reasons for ambition, prestige, or taste, or similar motives, though they may be commendable in certain instances, will usually not be considered to constitute good cause.”307
  • A substantial field of employment – This means that there are at least a standard number of employers in the claimant’s area who have positions requiring the claimant’s experience and skills, and able to accommodate the restrictions. Vacancies in the claimant’s job type are not important to this requirement. 308
  • Labor market – This means that there is a potential demand for the claimant’s services in the area. A labor market might change with economic conditions, seasons, or consumer demands. 309
  • Burden of proof – The claimant has the burden of proof to show they are ready, willing, and able to accept suitable work and that any restriction had good cause. 310 If the claimant is able to prove this burden, then the EDD has the burden of proof to show the substantial field of employment did not remain open. 311
  • No good cause – If the restriction does not “materially reduce” the job opportunities, then good cause is not necessary for the restriction. Showing a lack of material reduction is difficult. In general, it needs to be a 20% reduction in a claimant’s potential labor market. In a smaller labor market, a 10% reduction could be a material reduction. 312

Common Availability Issues

Claimants will often need or want to place limitations on their job search. In general, if the restriction could be classed as good cause to quit a job, then they are reasonable restriction to place on the job search. Some common examples, such as lack of childcare, immigration status, incarceration, or working conditions, are discussed below:

  • Immigration status – If a claimant is not legally allowed to work or reside in the United States, then they are considered unavailable for work. 313 If they are unable to provide evidentiary documents of their immigration status when the EDD requests it, then they will be considered unavailable for work. 314 If a claimant is eligible for work but has not applied or authorization temporarily lapsed then they can be considered available for work. 315    The claimant must make good-faith efforts to fix their employment eligibility or be disqualified from receiving benefits. 316
  • Part-time work – If a claimant is only seeking part-time work, they are still considered available for work as long as they meet all of the following criteria: 317
    • The claim for Unemployment Insurance is based on part-time employment. Half of the base period for the claim was working less than 40 hours a week. 318
    • The claimant is willing to work under the same number or range of part-time hours as they worked in the base period.
    • There are no other restrictions on the job search, only hours and day as needed in the reasons for going part-time.
    • There is a reasonable amount of demand in their job market for part-time jobs in their skillset.
  • School or training – A student can be seen as available to work if they meet the criteria above for part-time work319 or if they are studying between jobs and would leave their schooling to accept a job. If the schooling is in the evening and the student is looking for full-time work they are also available to work. If the student is doing training or school which is approved through the California Benefits Training program, then they are available to work. 320
  • Lack of childcare – It is considered good cause to have job search restrictions due to caring for a minor child when there are no reasonable alternatives. 321 If a claimant cannot work at all322 or during hours that will allow them to have a substantial field of employment, then they are not available for work. 323 If a claimant is caring for their child full-time while they are looking for a job, but will make other arrangements once they find a job is considered available for work. The EDD might ask for declarations from the person who would be an alternative caregiver as proof of eligibility.
  • Travelling – If a claimant is travelling, they will be considered unavailable for work. The only exceptions are if the reason for the trip is to search for a job324or the claimant can show they will not miss any job opportunities while travelling. 325
  • Commuting – A claimant may believe they have good cause to limit their search to a short commute; however, the EDD will evaluate good cause based on the travel distance and time, local commuting practices, and the length of time they have been unemployed. If a claimant has been unemployed for a long time, they should be willing to commute further. For example, if a claimant has been unemployed for two months and does not apply for a job that is suitable apart from a two-hour round-trip commute, then they will be considered unavailable for work. 326  If the cost of commuting would be high, such as more than half of the gross pay, then the claimant would have good cause for refusing a job offer. 327
  • Moving to a new area- If a claimant moves to a new area, they can still claim unemployment benefits328 unless the new area does not have any market for their skills. 329  Even if the claimant moves to a smaller town, if there is a reasonable employment field, 330  then a labor market exists.331  If there are no job vacancies, that is irrelevant. 332
  • Self-employment – If a claimant is looking for work as an independent contractor or self-employed, then they are not considered available for work. If the claimant plans to leave self-employment or works flexible hours so they can get a part-time or full-time job, then that would be considered available for work. 333
  • Incarceration – Even if the charges are dismissed, if a claimant is detained for two or more workdays, then they are unavailable for work. However, if they are detained less than two workdays and the charges are dropped, then they are available. 334
  • Type of work – A claimant is allowed to restrict their job search to their usual work, even if they are trained or experienced in other fields. 335 When they have not been unemployed for long, they are allowed to deem jobs outside the customary occupation as unsuitable.

 

If a claimant is looking to change careers, they must show good cause for rejecting suitable work which they have experience and training to do. 336  Taste, ambition, or prestige are not reasons of good cause. 337  If the wages in that field are lower than they are accustomed to, 338 or the job would not use their highest skills, therefore causing them to lose proficiency in those higher skills, then those could be considered good cause. 339  The length of unemployment will also factor in the EDD’s decision though. 340   For example, if a bartender with five years of experience has only been unemployed for a few weeks, they could turn down work as a waiter due to the higher tips and wages in bartending and have good cause.

  • Wages or working conditions – If the wages, working conditions, or hours are less favorable than those in similar jobs in the field, then it is not considered suitable work. 341 If a job pays 10% less than the standard wage in the field, it is classed as substantially less favorable. 342  If the claimant’s prior earnings, experience, and training mean they are at the higher end of the field’s standard wages, then it will be seen as substantially less favorable, even though it would be a decent wage for most people. 343
  • No substantial field of employment –If the EDD says the claimant does not have a substantial field of employment, they are saying the claimant is unlikely to get a job. The claimant in this situation should look at all of the occupations they have had work or training, no matter how briefly. They should also challenge the criteria of the EDD by looking at job ads and federal statistics. This information is on the EDD’s website under “labor market information.” The EDD bears the burden of proof to show how the claimant does not have a substantial field of employment. 344

Refusing a Job Offer

If a claimant refuses a job offer without good cause, they may be disqualified from receiving benefits. 345  This is slightly different from the “availability for work” requirement above. To be disqualified on this basis, the claimant must refuse a valid offer for suitable work without good cause. 346

  • Valid offer – The offer must be for a genuine job opening and include details of the working conditions, hours of work, wages, and duties so the claimant can decide whether it is suitable. 347
  • Suitable work – This is the same as the above section, but work can be considered not suitable and then fine to refuse if:
    • The advertised position is vacant due to a labor dispute
    • The working conditions, hours, or wages or less favorable than the standard wages of this type of work in the area.
    • If one of the conditions of work would require the claimant to join a company union or resign from other labor organizations. 348
  • Good cause – the reason for turning down the job is one that would make a reasonable person who genuinely wants a job reject the job offer if they were in the same circumstances. The claimant must also have looked into reasonable alternatives before they reject the job. Taste, ambition, or prestige will not be considered good cause. 349

The EDD or employer must prove that the claimant refused a valid offer for suitable work. Once that happens, the claimant must prove they had good cause for their refusal if they want to receive benefits. 350 Reasons that are good cause for refusing a job offer are similar to reasons that are good cause for voluntary quitting a job.

Temporary Work

Temporary workers have more flexibility in deciding which assignments they want to accept, but they must still be available to work351 and have good cause to refuse suitable job offers. 352 They should be prepared to defend their decisions if they refuse work if they are too choosy they may be disqualified from receiving benefits. Suitable work for temporary workers is a broad definition. It generally looks at the work and assignments they have accepted in the past. For example, If a claimant takes a temporary job even though the pay is lower than they would usually get for their experience and prior wages, they might not be able to turn down a role with similar pay in the future.

If a claimant refuses temporary work to look for permanent positions, this is not good cause. 353  A claimant may be able to argue good cause if the temporary work directly interferes for their ability to look for permanent work. For example, if a claimant has job interviews which clash with the full-time hours expected in the temporary work and there is no alternative to take time off or change the interview times, then they might have good cause for the temporary assignment hampering the job search.

The issues that are good cause for refusing a job offer are the same as the restrictions allowed on a job search.

Actively Searching For Work

A claimant must be actively looking for suitable work to be eligible for benefits. 354  The search must be designed to that prompt employment will be found and follow the customary ways of finding work in the desired occupation and in the labor market’s current condition. 355  Submitting three or more job applications or contacting three or more employers will constitute an active search. 356  If the standard way to get a job in the claimant’s field is through the union, then they will not need to contact any employers. If the claimant keeps a record of any employers they contact, then they will be ready if the EDD enquires about how they are actively looking for work.

If searching for work would be fruitless, then the claimant does not have to look for work. These situations include:

  • The claimant has a definite job which they will start within a reasonable period of time. 357
  • The layoff is temporary, and they will return to their job within 30 days. 358
  • The claimant is seasonally unemployed, and it is extremely unlikely they will find work in the off-season. 359

Training or school – A claimant who receives benefits under the California Training Benefits Program are not required to be actively looking for a job.

CalJOBS and reemployment services – The EDD may require the claimant to sign up to CalJOBS, attend an Initial Assistance Workshop, or do any other EDD-sponsored reemployment services to show they are actively searching for work.

Searching for part-time work – the requirements for this are the same as the section on part-time work searches in the “Available for Suitable Work section above.”

Unemployment and Underemployment

To be eligible for unemployment insurance benefits, they must be unemployed. If a claimant meets any of the following conditions, they are unemployed in any week:

  • A week in which they perform no services and therefore receive no wages. 360 This does not require a separation of the employer-employee relationship. For example, a claimant on unpaid vacation or a leave of absence is unemployed and thus eligible for unemployment benefits if they meet the other criteria.
  • A week in which they perform full-time work (five consecutive days) as a juror or a subpoenaed witness and therefore cannot report to their job. 361
  • Any week where they work less than full-time work which means their wages are reduced by 25% or $25 (whichever is greater) so that the pay will fall below the weekly benefit amount. 362 There is no standard definition of full-time work in California, so the EDD uses the standard number of hours in the industry or geographic location. 363

Benefits Reduced Because Of Part-Time Work

Some claimants may be able to pick up odd jobs, or temporary or part-time work. If the claimant earns some money but less than 1.33 times the weekly benefit amount, they are considered underemployed and will receive reduced benefits.

  • If the claimant earns less than $100 in a week, the benefits for that week will be reduced by how much they earned over $25. For example, if they earn $90, their benefits will be reduced by $65.
  • If they earn more than $100 in a week, then the weekly benefits will be reduced by 75% of what they earned. For example, if they earn $120, their benefits will be reduced by $90.

The benefit reduction will happen during the week when the wages were earned, even if the wages are paid at a later date. The reduction will also be calculated based on gross earnings, so before tax. If a claimant’s earnings are more than 1.33 times the weekly benefit amount, they will not receive any benefits during that week. 364

Are school employees unemployed during school holidays

A school employee is defined as any person working for a non-profit or public school, or working for an educational institution, such as a principal, janitor, teacher, or substitute teacher. If the school employee has a reasonable guarantee that they will have a job during the end of the holiday period, then they are not eligible for unemployment insurance benefits. However, if the employee worked for the school and another employer who was not the school during the unemployment insurance base period, then they would be eligible for benefits on the non-school wages during the holidays. If the employee’s job offer is reliant on funding or enrolment numbers, then there is no reasonable assurance of their job, and they would be eligible for benefits.

If a non-professional school employee such as a teacher’s aide or custodian has a reasonable assurance of their job after the holidays but then is not given work, they can request back-paid unemployment insurance benefits. Professional school employees such as principals, registrars, and teachers will not be eligible for back-paid unemployment insurance benefits.

Chapter 4 – Steps to Claim Benefits

This chapter will run through all the steps required in a new unemployment insurance benefits claim. They all boil down in two overall steps

The first step is to determine initial eligibility based on the claimant’s application to the EDD.365

The second step is to make sure there is ongoing eligibility. Every two weeks a claimant must submit a continued claim form.

These are the overall two steps, but many additional steps are part of the process. These steps may include:

  • Amendments to the application
  • An eligibility determination interview
  • Verifying social security number, immigration status, and identity
  • Registering for CalJOBS

This chapter will also discuss how to file another claim after intervening employment and filing a claim at the end of a benefit year.

Submitting A Claim Application

A claimant should check if they met the initial and ongoing requirements for eligibility before they make a claim. There are two main disadvantages if you apply for a claim and the EDD decides you are ineligible.

  • Firstly, if the EDD disqualifies a claimant because they did not meet the no-fault separation requirement, then the claimant will not be able to collect benefits in the future. The claimant will have to “purge” the disqualification by working in bona fide employment where they earn at least five times the weekly benefit amount.366
  • Secondly, the EDD might also find that the claimant made a false statement when submitting the claim. This means the claimant is disqualified for between 2 and 13 weeks, and that they will be assessed any time within three years. For example, if a claimant applies for unemployment insurance benefits a year later and would otherwise be eligible, this might count against them. 367

Regardless of these concerns, if a claimant reasonably believes they are eligible for benefits, they should apply for them.

When To Submit The Application

A claimant can submit their claim anytime after being unemployed; there is no time limit at all. It is usually to a claimant’s advantage to submit a claim as soon as possible. If the claimant is eligible, the EDD needs to pay benefits promptly. They must also make a prompt decision if they deny benefits due to ineligibility.368

Applications are counted from the Sunday before the filing date, and this is the date which determines base period and benefit year. 369

A claimant might have an advantage waiting to submit their claim if it would mean they get a higher weekly benefit amount and maximum benefit amount. As these are determined by quarterly pay, it would be worth waiting, so your highest grossing quarter is considered. Also, it is worth making sure the quarterly pay is high enough to be eligible for benefits.

For example, a claimant was out of the workforce for several years and worked full time between January and May and was laid off in June. If the claimant was to apply for benefits right away in June (the 2nd calendar quarter), they would have no base period earnings and therefore be ineligible for benefits. But if they were to wait to claim benefits until July, which is the 3rd calendar quarter, then the base period would include the 1st calendar quarter when they were working full-time.

So it is up to the claimant whether they can wait for their benefits to get a higher weekly benefit amount or not. Also, if the claimant expects to start work again soon, this could mean applying for benefits earlier is the better option.

Backdating the Application – If the claimant requests, the EDD can backdate the claim if they find evidence that there was good cause to delay filing the claim, such as:

  • The employer coerced, instructed, or warned the employee not to file the claim, or to delay it.
  • An error was made by the EDD
  • There is a substantial reason which would have prevented any reasonable person in the same situation from filing the claim
  • A good-faith mistake, surprise, excusable neglect (not procrastination, carelessness, or negligence, or error. 370

After a separation, the employer must inform the employee about their rights to unemployment insurance, and they must give the employee an EDD pamphlet by the effective date of separation. If an employer fails to do so, this alone would not be cause to backdate a claim, especially if the employee is familiar with the program, 371, however, the EDD will consider it among other factors. 372

How to Submit the Application

In their application for Unemployment Insurance benefits, the claimant will provide the EDD with a lot of information. The EDD recommends that the claimant gather the following information prior to starting the application:

  • Personal details – all current and previous names, mailing and residential addresses, social security number, telephone number, driver’s license or state-issued ID card, alien registration number (where applicable).
  • 18 months of employment history – Names of all employers as they appear on pay stubs, wages earned, and whether they were paid hourly, weekly, or monthly, also dates of employment.
  • Information about the most recent employer – employer name, mailing and work address, telephone number, and reason for separation. The EDD must mail a notice of claim to the employer so accurate information is important for an efficient application process.
  • Income information – sources of current and future income. The EDD needs this information to calculate the correct deductions for taxes, pension, and holiday pay from the benefits.

The claim may be filed by an underemployed or unemployed worker using the following methods:

  • By phone – The claimants can submit their application by phone by calling the EDD during business hours.
  • Online – Claimants can submit applications online at any time.
  • Fax or mail applications – They can submit a paper application, but there are a few different forms depending on the circumstances. To ensure they have the right form, visit the website to print the correct paper application.

Claimants cannot submit applications in-person.

The question that trips claimants up the most is about the separation from their most recent employer. “Briefly explain in your own words, the reason you are no longer working for your very last employer, within the space provided.” The common explanations that may fit are:

  • Discharged/Terminated/Fired – The employer initiates the separation, and the worker’s position still exists.
  • Laid-Off – The employee’s position is eliminated either permanently or temporarily eliminated for business reasons.
  • Voluntary Quit – The employee ended the employment relationship.
  • Trade Dispute – A trade dispute was the root cause of the separation.
  • Still Working Part-Time (Underemployed)

Claimants should answer this question honestly and accurately; it will make the application quicker and prevent penalties for making a false statement. If one was terminated, it is important to communicate the nature of the termination truthfully. Even if an employee is eligible for benefits, they may be disqualified if the EDD finds them guilty of making a false statement.

Where to Submit The Application If The Employee is Moving to a New State or Country

If the claimant is moving to a new state, they will likely still be able to collect unemployment benefits. Most states in the US have reciprocal agreements that the benefits will be paid as per the rules of the state where the claimant was unemployed. 373  The claimant should contact the EDD to ensure they will be able to collect their benefits in the new state. If the claimant has rights to benefits under more than one state, then the states may be able to organize the benefits paid through one agency. 374  If the claimant moves to a different country, however, they might be able to file for unemployment insurance under the new county. The claimant should contact the equivalent agency in the new country to see if they have an arrangement with the US.

The chart below shows how inter-state unemployment insurance benefits claims are handled by the agencies.

Worked in State “X,” relocated to CA Worked in CA, relocated to State “X”
Who will determine eligibility? State X’s Unemployment Insurance (UI) agency CA’s Employment Development Department (EDD)
Where to apply for Unemployment Insurance? Apply by mail or apply at an EDD office using a uniform interstate claims form.376 Apply with the EDD by phone at 1-800-300-5616 or apply through a local UI office in State X with a uniform interstate claims form.
Where to register for job search assistance, if required? CA (follow CA’s registration requirements). State X (follow State X’s registration requirements).377
Which state’s eligibility requirements apply? State X CA
Which state investigates whether worker is able and available to work? CA State X378
Which state will send the benefits checks? State X CA (through the Sacramento office)
Which state handles any appeals? State X. Claimant should mail in appeal. CA. The claimant should mail in appeal as usual.
Where do appeal proceedings take place? Over the telephone or in a host UI office in State X.379 Over the telephone.380  The

EDD will mail claimant a copy of appeal file for the hearing.

This chart is only used for claimants who are applying for benefits when they move into or out of California. Circumstances may be different if the claimant has employment in another state which needs to be analyzed to determine the weekly or maximum benefit amount. If this is the case, the claimant should call the EDD to check if this is possible before filling out their application. The EDD will contact the other state to calculate the credit and send an amended notice to the claimant once the benefit calculation has been updated. 381

Most Recent Employer’s Response To Application

The EDD will send a “Notice of Unemployment Insurance Claim Filed” to the most recent employer as well as the claimant. The most recent employer is the employer that the claimant worked for immediately before they submitted their new benefits claim. 382

The notice will contain the claimant’s full name, social security number, the effective date of the claim, last day worked, and reason for separation. The employer is able to provide any facts about the employee’s eligibility and any other compensation that they have paid or will play after the effective date of the claim.

The employer does not have to reply, in fact, if the claimant was laid off due to lack of work, and there are no eligibility issues, the employer does not reply. If the employer chooses to reply, they have ten days to do so in writing. 383  The ten-day period may be extended for good cause, such as the employer not receiving the notice, or the employer later learning a fact which may affect the claimant’s eligibility. 384

If the employer does not respond and does not have good cause for no response, they lose their right to challenge the eligibility of the claimant at any point. The employer has the burden of proof to challenge the claim for benefits, 385  so if the employer does not challenge eligibility, the claimant is likely to be eligible for benefits. The EDD may still find the claimant ineligible for benefits based on information in their claim.

It is also important to note; the EDD is not bound to any reasons an employer provides to dispute a claimant’s eligibility. 386

Next Steps

After a claimant submits an application, the EDD will respond in writing with a document from the following list:

  • “Notice of Unemployment Insurance Claim Filed.”
  • “Notice of Unemployment Insurance Award.”
  • “Request for More Information.”
  • “Continued Claim Form.”
  • “Notice of Telephone Interview Notification and Instructions.”
  • “Notice of Determination” or “Notice of Determination/Ruling.”

 

Submitting Continued Claim Forms

Claimants must also show that they continue to be eligible for benefits, and the way they do that is by submitting Continued Claim Forms.387 These are forms which the claimant will receive from the EDD every two weeks after they submit an application for benefits. They will also receive these after submitting an additional claim.

These are automatically generated and mailed by the EDD, so receiving a Continued Claim Form does not mean you are eligible for benefits. Claimants might have to submit multiple forms while waiting to hear about their initial eligibility.

Continued Claim Form

The Continued Claim Form has six questions to determine ongoing eligibility.

Question 1 – Were you too sick or injured to work? If yes, enter the number of days (1-7) you were unable to work.

A claimant must be available to work every day they receive full benefits. Therefore, if they would have been unable to work because they were ill or injured, they must report the number of days they would not have been available to work. Benefits will be paid pro-rata as to the amount of days they would have been able to work.

Question 2 – Aside from illness or injury, was there any other reason you could not have accepted full-time work each workday?

In order to receive benefits, a claimant must have been able to work. If they were unavailable to work, they must report the number of days that was the case. Benefits will be paid pro-rata as to the amount of days they would have been able to work.

Question 3- Did you look for work?

A claimant must be actively looking for a job in order to receive benefits. This might include contacting employers by telephone, in person, by mail, or over the internet. If a union member meets their union’s dispatch and reporting requirements, they should answer yes.

Question 4 – Did you refuse any work?

If a claimant refused a suitable offer of employment, they might lose eligibility for benefits unless they have good cause. If a union member refuses a union referral to a job, they should answer yes.

Question 5 – Did you begin any kind of training or school?

Attending training or school may affect a claimant’s eligibility for benefits.

Question 6 – Did you work or earn any money, whether you have been paid already or not?

a/ Enter pre-tax earnings here

b/ Report employment or source of earnings information below.

Earning money or working may affect the claimant’s eligibility for unemployment insurance benefits. Any earnings reported must be in gross wages, and the claimant must report all wages earnt that week, whether or not they will be paid at a later date.

Along with those six questions, the form will ask if the claimant wants their federal income tax withheld from the benefits checks and if they want to update their address.

The claimant must sign the form, stating that they understand the question and their immigration status means they have the right to live and work in the US. Any false information will be considered perjury.

Additional tips

  • Use only blue or black pen on the Continued Claim Forms.
  • Fill in the box completely, do not mark the answers with an X.
  • Send the form only to the EDD, not to any other address and not by overnight mail.
  • Do not add any additional forms or documents when sending your Continued Claim Form back.
  • Submit the forms promptly. The claimant should mail back their Continued Claim Form by the date on the front of the form. If the claimant does not submit the form in time, they will not receive their benefits for that period unless there is good cause. 388 Good cause is a substantial reason which would have prevented any reasonable person in the same circumstances from filing the claim on time. 389 Forgetting or procrastinating is not good cause, 390  but needing to care for a family member is likely to be good cause. 391

Next Steps

Once the EDD receives the Continued Claim Form, they will respond in one of three ways:

  • They will mail a benefit check and the next Continued Claim Form to the claimant.
  • They will mail a “Notice of Determination” which will explain to the claimant why they have disqualified them.
  • They will mail a notice to say they want to conduct an eligibility determination by telephone. This occurs when at least one of the responses on the Continued Claim Form might pose an issue with eligibility.

Additional Steps to the Claims Filing Process

Amending the Application

After the claimant submits their application for benefits, the EDD will send the claimant a written confirmation letter to say they have received the application. This will show vital pieces of the application information such as:

  • Effective date of the application
  • Full name of the most recent employer
  • The final day worked for the most recent employer
  • The reason for the separation from the most recent employer
  • If the claimant is receiving a pension or has any other income sources
  • Whether the claimant is available and able to work

The claimant has a chance to correct any information on the written confirmation if it is incorrect. They have ten days from the date the notice was posted.

An Eligibility Determination Interview

If there is a discrepancy between the information an employer and employee give to the EDD, they will request an eligibility determination by phone. This means an EDD employee will make an appointment to call the claimant. The notice will include a list of potential questions. If the claimant is not available on that date, or the EDD does not call at the scheduled time, the claimant should call the EDD right away.

The EDD will have called the claimant’s most recent employer to follow up on the information they provided and discuss their understanding of the reason for separation. The EDD interviewer will discuss any doubts about eligibility with the claimant.

Eligibility Interview

This will often be the last step before the EDD makes a decision on a claimant’s eligibility. The interviewer will make notes during the interview, which be permanently on the claimant’s record. This is important, because if there is an appeal at any point, these notes will be made available to all parties including the Administrative Law Judge, and be a key piece of evidence in the appeal.

Preparing For the Interview

The written notice of the interview will often include questions that are likely to be asked; these will be specific to the eligibility issues of your claim. It would be beneficial to learn the criteria around the specific eligibility criteria in question and what constitutes good cause. The claimant should also gather any documents or employment records that are relevant.

During the Interview

These are some tips for the claimant to keep in mind during the eligibility interview; not all will be relevant to their claim.

  • At the start of the interview, the claimant should ask what information the employer provided. The EDD interviewer might not give this information, but if they do, knowing what your employer said will be beneficial to knowing what the eligibility issue is.
  • Focus your points around the law rather than personal feelings. The interviewer is assessing whether your behavior was misconduct or not, whether you were a hard worker or not is irrelevant.
  • Be clear. If the claimant does not understand the question, they should ask for clarification. Also, a claimant is allowed to request the interviewer repeat back any notes they made on a point to ensure the record will accurately reflect the discussion.
  • Do not give more information than necessary. A claimant should only answer what is asked to avoid giving away information or thoughts that might disqualify them. For example, if a claimant casually mentions to the interviewer that part-time work would be ideal so they can spend time with their children, they might disqualify themselves from eligibility. Unnecessary information or chit-chat can distract from important facts, or at worse disqualify you from eligibility for other reasons.

Your initial eligibility determination will be made promptly after the eligibility determination interview.

Registering For CalJOBS and Other Reemployment Services

CalJOBS

Once they have submitted their benefits claim, claimants will receive a brochure about CalJOBS. In some cases, claimants will need to register will CalJOBS to satisfy eligibility requirements for registering for job searching with a public employment office. 392

If the claimant fails to do so, they might need to attend job search sessions at the local job search center. This appointment will help claimants with their resume, labor market information, and other job search services. A claimant will receive appointment letters in the post with the details of their session.

Profiling and Reemployment Services

The EDD often requires claimants to take part in reemployment activities such as orientation and assessment. This is often the case when a digital profiling system identifies the claimant as likely to struggle to find work. 393

A claimant’s first reemployment service is usually an Initial Assistance Workshop which will tell them about why they have been selected and will run them through reemployment services on offer. The claimant will need to sign an agreement to take part in suggested reemployment activities. If selected, the claimant must participate in the orientation as well as additional activities suggested for them. If the claimant has good cause for being unable to attend the initial workshop, it may be rescheduled for that week.

If a claimant fails to attend the workshop or sign the reemployment plan, they will receive a one-week disqualification from benefits unless there is good cause. 394

Referral to a Local Workforce Investment Area – If the EDD refers a claimant to the LWIA and they fail to report, they may be disqualified for one week even though this is not a reemployment service.

Seek Work Requirements – Even if a claimant is participating in reemployment services, they do not get a reprieve from the requirement to be actively seeking suitable work. If after they report to the LWIA, they skip scheduled services, the claimant will be disqualified for the week. 395   The service appointment is seen by the EDD as specific job search instructions.

Verifying The Claimants Identity, Immigration Status, and Social Security Number

The claimant must verify their identity as well as social security number, and immigration status.

Identity

After a claimant submits their application, they might receive a letter requesting for verification of their identity. They will receive two documents which will walk them through the whole process and documents they can use as proof.

The EDD may ask to verify a claimant’s identity so they can ensure the wages under the social security number were in fact earned by the claimant. 396  The EDD may ask for additional information like photo ID, and one of the following:

  • Social security number verification
  • Address verification
  • Date of birth verification
  • Employment data397

The claimant forms will ask them to sign as to the accuracy of the information, risking perjury if the information is false. 398  The claimant has the right to a reasonable time to provide this information and can ask for extra time to obtain proof if needed. 399 If the claimant has not provided the additional information, or contacted the EDD to request extra time within ten days, then the EDD will make their decision based on the available information. 400

Social security number

If the social security number the claimant provided seems invalid or like it belongs to someone else, the EDD might contact the claimant to ask if that is the social security number issued to them by the Social Security Administration. 401  The EDD will send a Request for Information form to check on the social security number.

Immigration status

The EDD must check that applicants are able to live and work in the United States. They will need to check claimant’s immigration status and citizenship status. 402

Cancelling the Application

If a claimant wants to cancel an application because they are likely to be found ineligible, or they realise they will get higher payments if they file later, they may if they meet the following requirements:

  • The request to cancel is made within 30 days of the EDD mailing the Notice of Unemployment Insurance Award. If there is good cause, the 30 days deadline may be extended. Good cause is a substantial reason why a reasonable person would not have submitted the request earlier.
  • The claimant has not received and cashed the first benefit check
  • The claimant has not received a Notice of Determination, disqualifying them from receiving benefits. 403

A claimant can cancel as many claims as they wish but they cannot re-establish a claim and backdate the claim-filing date of a claim that has already been cancelled. 404

Filing An Additional Claim

Even though a claimant must be unemployed to receive unemployment insurance benefits, 405  they might find intervening employment for a little while after receiving benefits.

If a claimant has employment, even if it was for a few weeks, their claim will be deactivated. If at any time during the benefit year the claimant loses their intervening employment and wants to seek benefits, they may submit an additional claim to reopen their claims. 406  The claimant should contact the EDD to submit an additional claim. They will need to show that the separation from the intervening employer was at no fault of their own.

Filing a Second Claim After Exhausting Benefits

If a claimant has used up all of their maximum benefits, they may have two avenues to continue to claim benefits. The first option is the claimant may be eligible for an extension. The second option is if the claimant is at the end of their benefit year, they may be able to file a second claim, whether they used all their benefits or not.

At the end of the benefit year (52 weeks after the date of filing) a claimant can file a second claim. To be eligible, a claimant must pass all standard requirements and show that during the first benefit year, they met the past earnings requirement and the some work requirement. 407  If a claimant was eligible for SDI or worker’s compensation during their first unemployment claim, they have different rules.

A claimant must have earned during the benefit year and worked because otherwise, some claimants may be eligible for benefits in their second year without having worked during their first claim year. This is because they earned enough during their base period. This issue is called the “lag period” problem. A lag period is the period between the first claim’s base period and the effective date of the first claim. 408 For example, a claimant’s effective date for their first claim was the 5th of June 2009, so the base period for the first claim would be 1st of January 2008 until 31st of December 2008. Therefore, the lag period is the 1st of January until the 5th of June or the claim date. When the claimant files a second claim at the end of the first benefit year in June 2010, then the lag period would be part of the calculations for the new base period.

If the second claim’s base period does not coincide with the lag period, then the past earnings and some work requirements do not apply. 409    A claimant without a lag period only needs to meet the same standard eligibility requirements as the first claim.

Past Earnings

For a valid second claim, the claimant must have been paid:

  • At least $1,300 in wages in one of the benefit year’s quarters for the first claim.

OR

  • At least $900in one of the benefit year’s quarters and gross yearly earnings of 1.25 times the highest quarter. 410

These wages must have earned these wages as an employee, but not necessarily in covered employments.411

Some Work

To be eligible for a second claim, the claimants need to have done some work during their first claim’s benefit year. 412  Work is defined quite broadly as any service performed for remuneration including self-employment, employee, or independent contractor. 413  The claimant has to earn wages rather than just receiving pay or benefits for no work. 414  Remuneration can include stand-by or call-in pay, but not vacation pay, severance, or sick leave. 415

Exceptions for People Receiving Worker’s Compensation Benefits or State Disability Insurance

If a claimant cannot work for some weeks, they will not be eligible for unemployment insurance benefits. During a benefit year, claimants may be on unemployment insurance benefits and SDI. If the claimant qualifies for SDI, they will collect those benefits, not unemployment insurance benefits.

If the claimant was disabled for the whole duration of their first claim and received SDI or worker’s compensation benefits, there is no work requirement or past earning requirements. 416

If the claimant collected some unemployment insurance benefits, then the rules are different. In this case, if SDI or worker’s compensation benefits were paid to cover loss of wages, then the benefits can be considered as wages.417 To ensure the claimants will make the past earnings requirements, their compensation will be doubled when counting towards eligibility. 418  When calculating the weekly benefit amount, the SDI or workers compensation will not count.

Chapter 5 – EDD Determinations

How Benefits Are Paid

If the EDD determines a claimant is eligible for benefits, they will not get written notice; they will receive a benefit check. The benefit check will come within ten days of mailing the Continued Claim Form to the EDD. The check will have three parts:

  • The stub at the top of the form will have important messages and information about the claim. The claimant should save this for their records.
  • The middle section is the Continued Claim Form for the next period of two weeks. The claimant should read the instructions and submit the form. Once the EDD receives this form, they will send the next benefit check as long as the claimant is still eligible.
  • The bottom section is the check. This can be detached so the claimant can check it; the check is valid for a year after issue.

I haven’t received my check – If they haven’t received their benefit check, claimants can call the EDD’s automated telephone system to check if the check has been mailed. Follow the automated instructions to check on the progress.

Challenging the EDD’s Calculation of Base Period Wages

A claimant must have sufficient base period wages to be eligible for unemployment insurance benefits. Monetary eligibility is one of the first things the EDD will look at first. Once the claimant has passed this hurdle, they will receive a written notice that they have passed this eligibility requirement or not.

The written notice will provide the following information:

  • Claim start and end date
  • The base period wages as per the EDD’s tax records
  • The base period employer details

The written notice will also show the calculations of the maximum benefit amount, weekly benefit amount, base period wages, and highest quarter earnings.

Protesting the EDD’s calculation of the base period wages

The claimant has the opportunity to protest the information on the EDD’s written notice. Sometimes an employer may not report wages due to cash payments or misclassification of workers. Failing to challenge the EDD’s notice promptly may result in underpayment or disqualification from benefits.

Requesting a Recomputation – If the claimant thinks that any of the information on the Notice is wrong, whether inadvertent or intentional by the employer or EDD, they should contact the EDD. The claimant has twenty days from the date the notice was mailed. 419    If there is good cause, the EDD may extend the protest period. 420

The request for recomputation may be made online or by telephone. In writing is the best method as the claimant has the chance to explain fully and submit supporting documents to show the error. The claimant should have their date of birth, full name, and social security number on all letters to the EDD.

If the claimant thinks the employer under-reported the base period earnings, then they should supply evidence to the EDD. Evidence could be W-2 forms, bank deposits, paystubs, a claimant’s record of hourly rate and hours worked. The more detail a claimant can provide, the better.

If one of the claimant’s employers is not on the notice as a base period employer, then the claimant needs to show evidence that they were paid by this employer. The claimant should also show evidence of the duties performed and the nature of the work to ensure there is no question of the employment status.

Notice of Amendments to the Unemployment Insurance Award – the EDD will promptly respond to a request for recomputation with a confirmation or denial.421 The EDD may also decide to launch an investigation if an employer does not correctly report wages.

Appeals – A claimant may appeal a denial or confirmation of recomputation within twenty days of the date the notice was mailed. 422

Non-Monetary Determinations

If the EDD determines a claimant is not eligible for benefits, then they will have written notice. 423  They may be disqualified for failing to meet any of the eligibility requirements.

The notice is written in very legal language and therefore, difficult for many claimants to understand. However, it lays out the reasons the claimant has been disqualified and EDD’s calculations. It will also inform the claimant of their right to appeal and how to do so. Included in the notice is an appeal form.

The claimant can either appeal their disqualification or re-open the claim. The most common reasons for disqualifications and the way to remove them are laid out below.

Satisfactory Immigration Status

To be eligible for benefits, the claimant must have satisfactory immigration status and must be able to prove it if asked. The claimant will be disqualified while their immigration status is unsatisfactory. If the claimant wants the disqualification lifted, they will have to fix their immigration status and contact the EDD.

Once the claimant provides the necessary information to lift the disqualification, the EDD will lift it the Sunday or that week in most cases. If the disqualification condition continues into a reporting week, then the EDD will lift the disqualification the following Sunday.

No-Fault Separation From Most Recent Work

If the claimant voluntarily left their most recent job without good cause or was discharged because of misconduct, the EDD may disqualify them from benefits. 425

This is one of the biggest reasons behind disqualifications for benefits. The ways a claimant can purge the disqualification are:

  • Returning to work
  • Earning five times of the weekly benefit amount in covered, bona fide employment
  • Separating from the new job through not their own fault. 426

Bona fide employment is a good-faith attachment to the labor market. If the claimant took the job just for the purpose to purge or avoid disqualification, then this is not bona fide. 427

The claimant can contact the EDD and re-open their benefits claim once the disqualification is purged.

Available and Able to Work

If a claimant is unavailable or unable to work, then they may be disqualified from claiming benefits.428 Until the claimant demonstrates they are able to work again, and therefore “lift” the disqualification, they will remain disqualified from benefits. 429  To “lift” the disqualification the claimant must contact the EDD and re-open the claim once the factor which makes them ineligible is lifted.

Refusing an Offer of Suitable Work

If a claimant refuses a job offer for suitable work, without good cause, then they may be disqualified from claiming benefits. 430  The disqualification will result in benefits being stopped for between two and ten consecutive weeks. 431  The disqualification period will be decided by the EDD based on the following factors:

  • The length of the claimant’s unemployment versus the strength of the reason why the claimant turned down the job. If the claimant has only been unemployed for a week or two, then the reasons do not need to be that strong to get a mild disqualification period.
  • The claimant’s hardship, if they have an extreme financial hardship, they may have a lower disqualification period.
  • The duration of the job that was rejected. If the job was only going to last less than three weeks, then the penalty would be lower.
  • The claimant’s general job prospects and how hard they’re working to seek work. If they have rejected only one job and their job prospects are quite good, they may have lower penalties.

Actively Searching for Work

If a claimant is not actively seeking suitable work, they may be disqualified from claiming benefits. 432  A disqualification can only be backdated if the claimant gave a false statement and was given benefits. 433  Since the claimant has all week to make an adequate effort to look for work; the disqualification cannot be issued until the week has ended.

If a claimant doesn’t register with CalJOBS, or the Local Workforce Investment Area as per their reemployment program, they will be disqualified. 434  If they are required to do an action, such as adding their resume to the system, and they fail to do so, they will be disqualified on the Sunday of the week they were meant to do the action. The disqualification will continue until the claimant has rectified the cause, for example, updated their resume in the system.

A claimant can be disqualified if they do not participate in the required reemployment services. This includes if they do not attend the initial appointment or sign the Reemployment Plan. 435  The EDD will give one-week disqualification if there is a failure to participate in reemployment services without good cause. 436

False Statements

If the claimant gives false information to the EDD, they will face serious consequences. If the false information is a good-faith mistake, then there will be no problem. If the claimant knowingly provides false information then there may be fines or criminal consequences.

What Is a False Statement?

A false statement is when a claimant deliberately gives misinformation, either in writing or verbally to the EDD. For a claimant to be accused of giving a false statement, the EDD must prove all of the four things below: 437

  • The claimant withheld a fact or made a false statement. If the claimant withheld a fact which has an impact on their eligibility, then they may be disqualified, even if it doesn’t definitely make them ineligible for benefits.438 For example, even if the claimant attending school does not make them ineligible for benefits, they can be penalized for not disclosing that information.
  • The claimant knew the statement was false or they omitted the fact. The EDD must show that the action was deliberate or done knowingly. They must show the claimant knew that the information they provided was false. 439  If the claimant does honestly believes that their statement is true, then it will be ruled as an innocent mistake, negligent, rather than willful.440
  • The claimant knew the statement or omission was incorrect. The EDD can show that the claimant either acted with reckless disregard for the truth, knew the statement was false or did not believe it was true. 441 Reckless disregard is when a claimant understands the question and chooses to leave out information or gives false information. 442
  • The reason for making the false statement or omission was to get benefits. A claimant may be able to argue that they did not know the information they provided would change the EDD’s determination, and therefore they did not make a false statement for the purpose of obtaining benefits.

Examples of False Statements

  • Mischaracterizing the separation from work – The most common false statement is a claimant telling the EDD that they were laid off due to a lack of work, but was actually fired. The claimant will not have made a false statement if they genuinely believed that they were laid off. For example, if the employer told the claimant, they were laid off and later told the EDD that they terminated the employee. Alternatively, if the employer did not tell the employee if they are being laid off or fired, then there is no false statement if the employee assumes it is was a lay-off. If a claimant knows that they were fired and tells the EDD that it was a layoff because a lawyer tells them it will make it easier to get benefits, then this is a false statement.
  • Mischaracterizing the reasons behind the separation from work. If the claimant does not know the reason for the separation and incorrectly guesses, then it is an innocent mistake, rather than a false statement. This applies even if the employer’s reasons for the separation differ from the claimant’s reasons.443If the claimant knew the reason but withheld or altered it to increase their chances of being eligible for benefits, then that is a false statement.
  • Failing to report earnings – It is a requirement that claimants report all contractor payments, or wages while they are collection unemployment insurance benefits. If they do not report their earnings correctly or they withhold any information, they may be disqualified. The EDD checks all the reported earnings on the Continued Claim Form against the claimant’s Internal Revenue Service or State Franchise Tax Board records. This makes it easy for the EDD to find claimants who are misreporting their earnings. The EDD may even check the records again a few months later and find the false earnings at a later date.

Continued Claim Forms are filled out to get the next set of benefits, and the claimant needs to fill the form out accurately and to completion. 444   The EDD will not accept excuses of “I forgot.” The EDD will see a day of work for someone who is unemployed as an important fact that a claimant is unlikely to forget, even temporarily. 445 A substantial reason for not reporting earnings correctly may be difficulty calculating earnings, or confusion.

  • Using false ID – A false statement includes using false identification, a false name, or false social security number for their application. 446

 

Consequences of Making a False Statement

The EDD categorizes false statements into two categories, each with different disqualification periods.

  1. False statements that did not result in benefits – In this case, the EDD will disqualify the claimant for between two and thirteen weeks from receiving benefits when they would otherwise be able to receive benefits. 447
  2. False statements that did result in benefits- Similar to above, the EDD will disqualify the claimant for between five and ten weeks from receiving benefits when they would otherwise be able to receive benefits. 448 The EDD may also require the claimant to pay back the benefits that were paid and impose a penalty. The EDD has discretion as to how long the disqualification period will be. 449 The disqualification will not reduce the amount of benefits in the benefit year; it will just delay the claimant from receiving the benefits.

Criminal prosecution

If a claimant makes a false statement, they may face criminal prosecution. 450  If a claimant has a criminal conviction, they are ineligible for benefits for at least one year, beginning the week of the criminal conviction. The claimant may also have to face jail time or fines. 451  The claimant will not get both criminal penalties and the disqualification period, though. 452

Responding to the Disqualification

A claimant can either appeal the disqualification or serve it. If the claimant doesn’t appeal or loses the appeal, then submitting Continued Claim Forms for the disqualification period and not receiving benefits even though they are eligible is how the claimant can serve the disqualification period. If the claimant does not serve the disqualification period for any reason, the disqualification will be withdrawn three years later. 453

 

Overpayments

If a claimant receives payments they were not entitled to, then that is an overpayment. There are some cases in which the claimant may be able to waive the overpayment, but other than that, the claimant will be liable for the overpayment. 454

If the claimant was overpaid because they made a false statement or withheld facts with the purpose of obtaining benefits, then the EDD will penalize the claimant 30% of the amount of the overpayment. 455

Overpayments and Backpay Awards

A claimant may receive back pay if they were wrongfully terminated and filed a grievance. The backpay may affect the unemployment insurance benefits in the following ways:

  • If the settlement or backpay was not lowered by the amount of unemployment benefits received, then the claimant must pay back the amount of unemployment insurance benefits they received.
  • If the settlement or backpay amount was reduced by the amount of unemployment insurance benefits received, then the claimant does not have to pay back the benefits. 456 In these cases, the employer will pay the unemployment fund back the amount subtracted for benefits. The backpay will be a stan in for wages for that period. 457

An arbitrator who is involved in the backpay process will within 30 days of the settlement, give the EDD the name and address of the employer, name and social security number of the claimant, and the amount of unemployment benefits by which the settlement was reduced. 458

Legal Standard for Liability for Overpayment

If a claimant can show that all of the following three factors apply, they will not be liable for an overpayment. 459

  • There was no willful nondisclosure, fraud, or misrepresentation – If the claimant did not make a false statement, or the false statement did not lead to the overpayment, then they will avoid the 30% penalty. 460
  • The claimant was not at fault – The claimant must not have been at fault when they received the overpayment. Even if the mistake is made negligently, without intent, or they knew about the overpayment and did not alert the EDD, they are still at fault. 461 For example, if a claimant reported their income incorrectly, even if it was a reasonable and good cause mistake, they will be at fault. However, if the mistake occurs due to the claimant believing with good faith an EDD error, then they are not at fault. For example, in a case where an EDD representative filled out a form on a claimant’s behalf and asked them to sign. Because the form had information that the EDD knew was incorrect, even though the claimant should have read the form before signing, the EDD ruled that the claimant was not at fault. 462
  • Recovery would unduly burden the claimant – Even if the claimant was overpaid benefits through no fault of their own, they would have to repay the overpayment. The only exception is if the overpayment would be against “equity and good conscience.” The EDD considers a few different factors in this determination; not all have to be present to allow a claimant to avoid repaying the overpayment. 463
    • The reason for overpayment – If the mistake was made solely by the EDD, this weights the EDD’s decision higher. Even if the claimant is not at fault, this alone will not constitute a reprieve from repayment. 464
    • If a duplicated benefit was received – If the claimant collected benefits from two states for the same period465 will be highly unlikely to avoid repayment. 466
    • If the claimant changed their position because of the benefits – If the claimant has used the money towards expenses or to pay for a service that they otherwise would not have paid, then recovering the overpayment would be against good conscience and equity. 467 The definition requires the claimant to have taken reasonable action, or paid necessary financial obligations that they otherwise wouldn’t have done. 468  For example, if a claimant used the benefits to pay expenses because their savings were dwindling, then this would apply. 469
    • If the EDD recovered the overpayment, it would impose extraordinary hardship on the claimant – The Unemployment Insurance Code must be interpreted in line with its goals470to reduce the hardships of unemployment. 471 Therefore, if the claimant would endure hardship if the EDD recovered the overpayment, they should not be liable to pay it back. 472  The EDD will review these on a case-by-case basis, taking into account the amount of the overpayment and the claimant’s financial details. 473

For example, if a claimant found full-time work and admitted that they could easily pay back one week’s of benefits would have to pay it back, even if the overpayment was the EDD’s fault. 474  In another example, if a claimant had been unemployed for five months and had halved their savings in that time, even a small overpayment recovery could be against good conscience and equity. 475

The Overpayment Process

When the EDD notices an overpayment, they will follow these two steps.

Step One – Notice of Potential Overpayment

If the EDD believes they may have made an overpayment, they will provide written notice to the claimant and inform them of their right to request the overpayment is waived. 476  The EDD will advise and assist the claimant in providing all the information needed to check whether an overpayment was made, and in preparing the overpayment waiver, or establishing a repayment schedule. 477

The EDD will do this by sending a written notice by the Notice of Potential Overpayment form which provides all the necessary steps. A Financial Disclosure form will often be sent along with the notice as the waiver requires information about the claimant’s financial situation.

Step Two – Notice of Overpayment

If the EDD decides that the claimant is liable for the overpayment, then the EDD shall calculate the amount of overpayment and any applicable penalties. The EDD will then send written notification to the claimant for the amount and cause of the overpayment and the reason for denying the waiver. The notice will also include the repayment schedule and information about their right to appeal. 478

If the overpayment occurred without a false statement, then the determination of overpayment notice will be sent either:

  • Within one year of the end of the Benefits year in which the overpayment occurred.
  • Within six months of the settlement or backpay. 479

A claimant can respond to the notice in the following three ways:

  • Appeal the Overpayment – The claimant has twenty days from the date of mailing to appeal the overpayment. 480 If there is good cause, the EDD may extend the twenty-day period for good cause such as inadvertence, surprise, mistake, or excusable neglect. 481
  • Repay the Overpayment and Penalties – If the claimant chooses to repay the benefits and any applicable penalties, they can send a money order or check to the EDD. Alternatively, the EDD also accepts credit card payments online. If the claimant cannot make the repayments in a lump sum, then they can contact the EDD to set up a repayment schedule. The claimant can also request a change to their repayment schedule if they are able to prove there is a significant change to their financial position. 482 If an agreement on the repayment schedule cannot be reached, then the field office manager will decide on an appropriate repayment schedule. The claimant cannot appeal a change or refusal to change a repayment schedule. 483 If the claimant has been disqualified because of an overpayment due to false statement, then repaying the overpayment does not remove the disqualification.
  • Ignore the Overpayment – While the claimant can technically do this, it does have consequences. The EDD may take the overpayments out of unemployment insurance benefits or state disability benefits over the course of the next six years. 484 Within three years, the EDD can also seek action to reduce other forms of garnishment and lien. 485    The EDD, being a state agency, can also take the overpayments out of state financial sources, such as state tax refunds, and lottery winnings. 486

Chapter 6 – The Appeals Process

This chapter will discuss all of the potential steps for appealing an EDD decision, in chronological order. Every step from the initial appeal to the California Unemployment Insurance Appeals Board, through to a petition to the Superior Court. For an advocate representing the claimant, this will be an in-depth guide to each step of the appeals process. A claimant does not need a licensed attorney to represent them in an appeal hearing.

Either the employer or claimant can initiate an appeal, but an employer can generally only appeal the nature of the claimant’s separation. A claimant, on the other hand, can appeal any EDD determination about their claim. All EDD determinations are made by written notice and will have information about the right to appeal and an appeal form. These appeals are called first-stage appeals.

Even if the claimant is appealing an EDD determination, they must continue to submit Continued Claim Forms to prevent disqualifying themselves from future benefits. While the appeal is pending the claimant might need to request the EDD send Continued Claim Forms.

Submitting the Appeal

A claimant must submit their appeal in writing via the appeal form that comes with their disqualification notice. 487  Alternatively, the claimant can submit an appeal by a letter as long as the letter includes the claimant’s name, address, and social security number. 488  It is also useful to include the case number and employer’s name and address to speed up the process. If the claimant needs special accommodations such as an interpreter or accessibility, they should note this in the letter. 489    The claimant’s signature and date are also required.

Keep it Brief

If the appeal goes to hearing then the written appeal submitted by the claimant will be part of the hearing record. The opposing party and Administrative Law Judge will have access to the appeal. Therefore, it is best to keep the appeal brief, and to the point, it does not need to include a full explanation of the reason’s the claimant disagrees with the EDD’s decision. 490  In fact, the claimant should refrain from giving the reasons why they disagree because:

  • They might unnecessarily reveal information that will damage their case.
  • They might reveal their appeal strategy, thus inadvertently helping the opposing party.
  • If their appeal contradicts their testimony in the hearing, then their credibility may be questioned.

Including more detail in an appeal letter will not help your case, the EDD rarely reconsiders its determinations, so this is a mere formality in the appeals process. The claimant can even be as brief as writing on the form:

“I disagree with the EDD’s decision as the EDD made a mistake and I am entitled to benefits under the law.”

Deadline to Appeal

The claimant has twenty calendar days from the date the notice was mailed to appeal the decision to deny benefits491 or the notice of overpayment. 492  The mailed appeal must have a post-mark for twenty days of the notice, but the claimant may be able to argue timely filing if they can show they out the appeal in the mailbox within twenty days. 493  If the 20th day is on a holiday or weekend, the last day for posting the appeal is the next business day. 494

Late Appeals

Unless a claimant can show good cause for missing the deadline, their claim will be dismissed. 495  Good cause is circumstances outside of a claimant’s control that they could not have anticipated and that reasonably stopped them from filing on time. Some examples are excusable neglect, surprise, mistake, or inadvertence. 496  For example, if the EDD mistyped the claimant’s address and so they received their written notice late, that would be good cause. 497  The Administrative Judge determining good cause will look at: 498

  • The length of the delay
  • The reason for the delay
  • If the claimant acted diligently to protect their rights (did they notify the EDD of changes, or forwarded their mail)
  • If there is any prejudice to the employer or EDD if good cause is granted.

The longer outside of the twenty days the appeal is mailed, the more substantial the claimant’s reasons must be. 499  For example, if the claimant filed the appeal two days late because their attorney made a mistake is likely to be granted as good cause. 500  If the claimant filed a month late because they misread the portion of the notice explaining their rights to the appeal because they were upset over the decision, is not good cause. 501  Also, the California Supreme Court has ruled that good cause must be broadly interpreted to ensure that unsophisticated claimants are not denied their rightful benefits due to a technicality. 502

Withdrawing an Appeal

The party who is appealing can withdraw their appeal at any time before the Administrative Judge issues their decision. They could even withdraw the appeal during the hearing. 503  The way to withdraw the appeal is to contact the Office of Appeals and tell them the issue to withdraw. If a party withdraws an appeal, they can have it reinstated as long as they show good cause, and make the request within twenty days. 504

EDD Redeterminations

The EDD has fifteen days to issue a redetermination on their prior decision after a claimant files an appeal. The EDD may review the statements that the claimant submits to support their appeal. They have staff who are there to review appeals and issue redeterminations. 505

The EDD usually does not reverse their decision based on an appeal. The appeal will be sent to the California Unemployment Insurance Appeals Board for a hearing. The goal of the appeals process is just to get an appeal hearing; there is no need to put a lot of information on the appeal form.

Acknowledgement of Appeal

After an appeal, the EDD will acknowledge the appeal in writing. The EDD will also continue or start sending Continued Claim Form. The claimant should complete and submit the forms, every week while the appeal is in process, that way, they can receive backdated benefits if their appeal is successful. If the EDD fails to send the forms, then the claimant needs to request the forms and keep records so they can fill out the form when it arrives.

Employer Appeals

When the EDD finds a claimant eligible for benefits, the EDD will mail the most recent employer a notice of determination and appeal form. 506  The Notice will state the details of the determination and inform the employer of their rights to appeal.

If the employer appeals, then the claimant will receive a “Notice of Appeal and Transmittal of Appealed Determination” along with a copy of the determination notice that caused the employer to appeal.

If the claimant is otherwise eligible for unemployment insurance benefits, they will receive benefit checks every week they submit a Continued Claim Form. Therefore it is best practice for the claimant to continue to submit their forms until the appeal hearing. 507 If the employer wins the appeal, then the claimant might have to pay back the benefits received after the written notice of the appeal. This will then trigger the overpayment process with the EDD, so they will not have to pay back the benefits right away. 508

The claimant will not have to pay back the benefits they received before the notification of the appeal. A claimant will not have to pay back the benefits if the EDD and Administrative Law Judge deemed them eligible, but they lost the appeal to the CUIAB. The same thing goes if the claimant loses their appeal in state court after the EDD, Administrative Law Judge, and CUIAB deems them eligible for benefits.

Notice of Hearing

Once the EDD acknowledges the filed appeal, the Office of Appeals will send out a “Notice of Hearing” too all partied. The notice must be mailed to the claimant at least ten days before the date of the hearing, regardless of when the claimant receives the notice. 512

Place, Time, and Date of the Hearing

The notice will give full information about the hearing and the Administrative Law Judge who will preside over the hearing. 513 If the employer’s details are not on the notice, then it means the employer is not involved in the hearing, so they did not get a copy of the notice.

Interpreter

The notice will say whether an interpreter is scheduled for the hearing, a claimant has to request one when they appeal. If no interpreter is listed and one is needed, then the claimant should contact the Office of Appeals immediately to request an interpreter. The Office of Appeal’s phone number will be listed on the notice.

The Issue Being Appealed

The Notice of Hearing will also explain the issues which are being appealed; the Administrative Law Judge will only rule on these issues. When the claimant is preparing their appeal, they should focus solely on these issues as the Administrative Law Judge will not hear evidence on issues if they are not listed on the notice. 514  During the hearing, if an employer tries to give testimony to an issue, not on the notice, the claimant and their advocate can object. The claimant can contact the Office of Appeals if they believe a relevant issue is not stated on the notice.

The notice will cite the Unemployment Insurance Code section, which is relevant to each issue and briefly summarize the requirements. An advocate will likely need to translate the section of the notice as it is written in legal language. Even if there is one issue the claimant raises, it might have two parts to the legal requirements; therefore it is normal to see more than one reason for appeal on the notice. For example, if the claimant is appealing EDD disqualification because they said they were fired for misconduct from their most recent employment, they will see the following two code sections on the notice.

  • “1256. Did the claimant voluntarily leave employment without good cause? Was the claimant discharged for misconduct connected with the work” and
  • “1030/32. Should the employer’s reserve account be charged for any benefits paid to the ”

This section of the notice is just providing the relevant section of the code; the statement or question may not be applicable to the claimant’s appeal.

Another example will be if a claimant did not file the appeal in time, the notice will show:

  • “LATE 1 Was the appeal filed within 20 days of notice. If not, is there good cause for any delay (UI sections 1030(c), 1328, 1377, 2707.2 ”

The Administrative Law Judge will accept evidence as to the merits of the appeal and whether the claimant had good cause to file the appeal late. The Administrative Law Judge will first make a decision on whether the claimant had good cause for filing late, if not, then they will not make a decision on the merits of the case.

If the Claimant Is Unable to Attend the Scheduled Hearing

If the claimant has a substantial scheduling conflict with the date of the hearing, then they need to immediately contact the Office of Appeals to ask for the hearing to be rescheduled. If the claimant cannot show good cause for being unable to make the hearing date, the Office of Appeals may not reschedule the hearing. 515  Personal obligations will not be accepted as good cause unless there is no reasonable alternative. If the notice was not mailed ten days before the hearing date, then the claimant may have good cause. If the claimant’s mail was late due to no fault of their own, then they may have good cause. If the claimant was the appealing party and they fail to attend the hearing, their case may be dismissed. 516  They can request another hearing, at this hearing, the claimant will have to show good cause for not attending the first hearing before they can present their appeal.

If the claimant knows of any scheduling conflicts in the timeframe which a hearing might be scheduled, then they should notify the Office of Appeals in writing of the conflict. This letter will be proof of the claimant’s attempts to appear at the hearing.

Interviewing the Claimant

As an advocate who is considering representing a claimant at an appeal hearing, it is important to conduct a detailed face-to-face interview. Due to the possible time frame on the hearing date, it is possible you may only have a few days to prepare for a hearing. Make sure to cover the following topics at least:

  • The facts of the case – Have a clear understanding of all the facts relevant to the case. Claimants may not see information as relevant, so it is important to guide this process. Ask open-ended general questions to get as much information as possible, and then ask more specific questions to clarify. Make sure you understand all the facts of the case. For example, it is not enough to know why a claimant decided to quit their job, but you need to also know the steps they took to resolve the issues before resulting to quitting. If the claimant was fired for being absent, then it is important to know how many absent days they had, which days they had advanced permission for, why they were absent, and if they received a warning for absences. These will help you prepare a case for the hearing.

 

A good exercise may be to ask the claimant to explain the case from their employer’s perspective and ask how their employer might present the key facts. This will help you to identify any weaknesses in the case and for the claimant to explain any discrepancies. Focus on the Hearing Notice and do not stray too far from the issues on the notice.

  • The appeal file – Make arrangements to get the appeal file
  • Documents, statements, and witnesses – Ask the claimant to bring relevant documents to the first meeting, any employment documents, or correspondence from the EDD and CUIAB. You can also discuss any possible witnesses who may be able to provide a statement or testimony. Discuss any documents that the claimant may not have that would be helpful to procure.
  • Retainer and Authorization – The first meeting will also be the point to discuss a retainer if you intend to charge one. This will also help specify how much involvement you will have in the appeal and sign an Authorization to Disclose Information form which will allow you to access the claimant’s Appeal File on their behalf. Even if you do not enter a retainer agreement, this is the time to clarify your role in the appeal.
  • Next Steps – This is the time to set up a second meeting with the claimant and any documents they need to procure in the meantime. The second meeting should be as close as possible to the hearing date so you can prepare the claimant. In some cases, you may even schedule it for the day of the hearing.

It is important to remember that the claimants have often been unemployed for a while and are in a bad financial situation. They will be stressed about having to fight for unemployment benefits which only cover a fraction of their expenses. Interviews should be conducted with the utmost sensitivity.

The Appeal File

When a claimant or employer appeals a determination, the EDD sends all of its files to the Office of Appeals, these documents are called the Appeal File. The Appeal file is the only set of documents the Administrative Law Judge will review before the hearing; they will also be part of the record for the appeal hearing.

Claimant’s Right to EDD Records

A claimant has a right to access their Appeal File so they can prepare a claim for benefits with their advocate. 517 A request is submitted by email or telephone, and the EDD will post a paper copy of their Appeal File within ten days.

The claimant can study the contents and copy them without charge. 518  The Appeal File is transferred to the Office of Appeals three weeks before the hearing, once it is sent there, the claimant can access their file. By the time the claimant has received their Notice of Hearing letter, their file will be accessible in the Office of Appeals. The claimant should visit the Office of Appeals immediately to view and make a copy of their file for the use of them and their advocate. If the claimant has not received their Notice of Hearing, they can call the Office of Appeals to find out if their file is there to view. There should be no barriers to the claimant accessing their file, but if issues arise, the claimant should be firm in their right to view the file and speak to the presiding judge if necessary to request access.

If the claimant cannot attend the Office of Appeals in person, they can call and ask for a copy to be faxed. If you need to access the file as an advocate, you will need to fax or present an Authorization to Disclose Information form signed by the claimant. This will show you are able to obtain this information on the claimant’s behalf.

Review the Appeal File

As the claimant’s advocate, you should know the Appeal File back to front as it has all the information from the employer, claimant, and EDD. The Administrative Law Judge will be referring to the file’s documents during the hearing. You will find the following documents in the file:

  • Claim Notes – These are EDD computer dot-matrix printouts to show the activity on the claim. These can be difficult to read but are helpful in establishing a timeline of all the interactions between the claimant and EDD, phone calls and notices etc.
  • Employer Protest – The written response from the employer to the EDD’s Notice of Unemployment Insurance Claim Filed. This will show the facts the employer presented to the EDD about the claim. This document will have a written explanation of why the claimant separated from the employer, from the employer’s perspective. If the document contradicts the claimant’s story or is damaging, it is worth discussing it with them. In some cases, employers do not respond or may not have put a lot of information on their response.
  • Record of Claim Status Interview – These are notes from the interviews between the claimant and the EDD or the employer and the EDD. They will either be computer generated or hand-written. Compare both sets of notes closely to see if they align.
  • Notice of Determination – This is the written notice of the EDD’s decision, sent to the claimant and their former employer. Most of the letter is a template, with some personalized information in the second paragraph.
  • Appeal Letter – If the employer is the appealing party, this letter will show why they challenged the unemployment insurance benefits. Check this for any inconsistencies or issues with the claimant’s story.
  • Notice of Hearing – The claimant should already have a copy of this.

Securing Documents, Witnesses, and Statements

It is rare to have witnesses at appeal hearings. A lot of the possible witnesses will be former co-workers and may fear retaliation from the employer if they testify. Retaliation is illegal, but a lot of employees are understandably nervous about testifying against their employer. Even worse, a witness may lie in their testimony in order to protect their job.

If a claimant decides to call a witness, it is important that the witness be relevant to the case, not just a friend who can say the claimant was a good worker. A good quality witness must have first-hand knowledge which is relevant to the case.

Witnesses can either appear at the hearing in person or submit a written testimony which highlights the first-hand experiences relevant to the case; this is called an affidavit. The affidavit can be sworn by writing “I swear under the penalty of perjury and the laws of the state of California that the foregoing is true and correct to the best of my knowledge and belief.” In the line before the signature. Affidavits are easier to organize than a witness attending the hearing. In-person testimony has more weight than an affidavit as the opposing party can cross-examine the witness. 519

Witness and Document Subpoenas

A claimant can ensure the attendance of witnesses that are happy to appear at the hearing by requesting the Office of Appeals to issue a subpoena. Do not subpoena a hesitant witness as they may be hostile.

This can be tactical if a former co-worker is hesitant to testify against the employer but will if they are “forced to” can be subpoenaed, so they are not voluntarily hurting the employer. Also, witnesses who are subpoenaed will have job protection for any work they miss in regards to the subpoena. 520  The claimant will also be able to request a continuance if a subpoenaed witness does not appear in court. However, if a witness who is not subpoenaed does not turn up, the Administrative Law Judge will not reschedule the hearing.

The claimant has limited time to seek a subpoena, so must act quickly. The subpoena should be requested no later than a week before the hearing. First, the claimant should visit the Office of Appeals and submit a Subpoena Declaration; then, it needs to be approved by an Administrative Law Judge. There are two types of subpoenas.

  • Document Subpoenas – This is in order to gain access to documents. The claimant must include the name and description of the documents they want to access, as well as the person who has the document, and how the document is relevant to the case.
  • Witness Subpoenas – This document compels a witness to attend the hearing. If the witness does not appear then the claimant can apply to a superior court to enforce the subpoena. The claimant must fill out the form with the name of the witness and how they will help the case.

 

Serving a Subpoena

A subpoena must be served in person to the employer or the witness. The claimant is not allowed to serve the subpoena themselves but can get a representative to do so. When the employer is the person being served, serving the person at the front desk is sufficient. The person who serves the subpoena must complete a proof of service to show who was served and when. The proof of service needs to be filed with the Office of Appeals to be enforceable.

Notices to Attend

If the subpoena process is too much trouble, a claimant can request a Notice to Attend. This does not compel the witness to appear, but it is easier to obtain, and the Office of Appeals will post the notice in the mail.

Developing a Theory of the Case

Before the hearing, it is important to have a basic theory of the case; this is a clear theme which is supported by information and evidence. Fit the facts of the case in with an advantageous application of the law to develop a strong theory of the case.

Misconduct Cases

Dispute one or more elements of the alleged misconduct by showing the behavior did not fit the legal definition of misconduct.

Disputing the elements of misconduct

The employer must prove that there was a duty owed to the employer, that the duty was breached substantially, that it was a willful breach, and that it harmed the employer’s business interests. The claimant only has to convince the Administrative Law Judge that one of these elements was not present.

  • Argue that the claimant did not owe the duty to the employer – An employee does not owe a duty to their employer to commit illegal or dishonest acts, or to perform work which endangers their safety or that of others. Employees also do not owe a duty to do work outside of their job description.
  • Argue that the breach was not substantial, it was trivial – An Administrative Law Judge will use a common-sense definition of substantial. For example, if an employee was away from work for three days without permission, that would be substantial. If they were ten minutes late to work on one occasion, that would be trivial.
  • Argue that the breach was not wanton or willful – This is the hardest part for the employer to prove. They must show the claimant knew that their behavior was a breach of duty, or at least reasonably should have known. It is possible to argue that the claimant’s conduct was ordinary negligence or a good faith error in judgement. If the claimant did not receive a warning for behavior or they can prove that the employer accepted that type of behavior, this will be easier.
  • Argue that there was no harm to the employer’s business interests as a result of the claimant’s behavior – This is the hardest element to dispute, the employer will only have to show that the type of behavior tends to harm business interests, not that the claimant’s behavior directly damaged the business.

Voluntary Quit Cases

The employee bears the burden of proving that they had good cause for leaving their job. Arguments can be structured in one of the following ways:

  • If there was more than one reason for quitting, argue the Rabago rule – Many times, an employee may have more than one reason for quitting their job. Rabago v. UIAB established that an employee would have good cause to quit if one of their reasons is good cause, and that reason was the main motivating factor in the decision. 521
  • Compare the case to established good cause reasons – Discuss statues, case law, and regulations which define some of the most common reasons for quitting jobs as established good cause reasons. The reasons could be intolerable working conditions, a substantial domestic situation, or reasonable fear for health or safety.
  • Argue based on the definition if there is no case on point – The definition of good cause is “a real, substantial, and compelling reason of such nature as would cause a reasonable person genuinely desirous of retaining employment to take similar action.” 522 If the claimant’s reason for quitting is not an established good cause reason, then argue a reasonable person would have done the same in similar circumstances.
  • Ensure the claimant did not negate good cause – Even with good cause, if the claimant did not take reasonable steps to preserve their job before they quit, they may have negated good cause.

Able and Available Cases

See chapter 3 for the requirements to show a claimant is able and available for work. The structure of a claimants case will vary depending on the facts. The best tactic is to show that any limitations the claimant put on their job search or availability for work are trivial and will not affect their ability to get a job in a substantial way. For example, if the EDD says the claimant has limited their ability to work as they limited the geographical area of the job search, the claimant should show the travel distance they are willing to make and what transportation forms they are willing to take. If the EDD determined that childcare commitments or school drop off and pickups make the claimant unavailable to work, then they should show what alternative options they have for childcare or school pickups. The tactic is to show that the EDD may not have considered creative ways the claimant may solve the problem in availability for work.

Overpayment Cases

A claimant who has received an overpayment of benefits will need to repay the overpayment unless all three of the following factors are present:

  • Fraud, willful nondisclosure, or misrepresentation by the claimant was not the reason for the overpayment.
  • The claimant had no fault in the overpayment.
  • If the EDD were to recover the overpayment, it would be against equity and good conscience.

If the overpayment occurred because of a false statement from the claimant, they will have to pay a penalty of 30% of the overpaid benefits. The shape of the defense will depend largely on the reasons for the overpayment, but here are some examples:

  • The reason for overpayment – If the EDD is saying the overpayment occurred because the claimant made a false statement, then the defense should show that either:
    • The claimant did not omit information or make the alleged false statement
    • If the claimant did make the statement, then there was a good reason to do so.

If the overpayment occurred due to a mistake by the EDD, then this part is very easy as the claimant is not at fault. Regardless of the reason, the claimant will still have to pay back the overpayment unless they can convince the judge that it would cause financial hardship.

  • Argue that the claimant cannot afford to repay the overpayment – In most cases the claimant will be required to pay back the overpayment, regardless of the cause. However, the claimant will need to show that the EDD recovering the overpayment would be against equity and good conscience. The claimant will have to show their financial hardship and what the money was used for. Their financial details, such as income, assets, expenses, and debts, will be used as evidence. An important factor in this argument is to show that because of the extra money, the claimant changed their financial position. This means that the claimant made payments or covered expenses that they otherwise would not have been able to afford. The Administrative Law Judge will weigh these financial moves against the claimant’s current financial position. Overall, bring the argument back to the Unemployment Insurance Code’s objective, which is to “be liberally construed to further the legislative objective of reducing the hardship of unemployment.” 523

 

Drafting Examination Questions and the Closing Argument

Preparing thorough and well-reasoned questions for the witnesses and parties is key to providing quality representation for the claimant. In preparation, anticipate the responses and defenses of the employer as well as emphasising points that tie into your case theory.

It is impossible to know exactly what will happen in the hearing, but it is helpful to have questions, and a closing argument prepared. Use the Appeal File to anticipate the employer’s possible arguments and responses, if the employer does not use a particular argument, then do not use the relevant questions or closing argument section. However, if the employer does use that argument, you will be prepared.

Guidelines to Craft Questions

The theory of the case should inform the overall flow of your questions and arguments. Make sure you arrange your questions according to the appeal issues to ensure your case follows a logical path. Therefore, if the two issues are good cause for a late appeal and whether the claimant was fired for misconduct, then the arguments for each should be separate, so your case is clear. This applies for when you are examining a witness, deal with one point at a time to ensure everyone can follow your case.

Do not ask questions that are irrelevant or have no clear connection to the issues in the case. The claimant may be emotional and bring up other wrongdoings by the employer, but if they are irrelevant, leave them out. Questions should also be phrased so that they are simple, requiring only a yes or no answer, or short response. Do not ask a question that will result in a complicated or multi-part answer.

Make sure your question references your source of information, whether that is an earlier testimony or written statements in evidence. This will make it clear for the judge and the witness to follow. Your questions should not present any new information; they should just clarify information in evidence or testimony.

Direct Examination

The Administrative Law Judge will usually start the questioning with some basic questions about the claim and the parties. As the advocate, the Administrative Law Judge may ask you to conduct these questions, so prepare for them just in case.

The goal with the direct examination is to present favorable testimony on all the of elements of the claim and appeal. Ensure you do not ask leading questions and do not ask about irrelevant matters. In an appeal, hearsay is admissible but will be given less weight. To keep the claimant on track, especially if they are nervous, avoid any questions that invite a long, open-ended response.

When preparing, writing the answers that you expect to hear will help you to control the flow of information and identify any holes in the claimant’s story. Knowing what information a particular question will provide will allow you to refrain from asking a question if the required information has been addressed in another way.

If you submit documents into the record, then you will need to have questions that will lay the foundation for submitting the documents. The question will provide information about what is in the document, where it comes from, and why it is relevant. For example, if you plan to submit a doctor’s note that confirms the claimant quit their job for health reasons, the following questions are appropriate:

  • Did you see a doctor about your condition?
  • When did you see that doctor?
  • Did that doctor diagnose you?
  • Did your doctor provide you with a note?
  • (While showing claimant the note) Do you recognize this document?
  • What is it?

Once the claimant has identified the note in their testimony, you can then ask the Administrative Law Judge to admit it to the record.

Cross-Examination

You will not know exactly what position the employer will take, so it is difficult to plan a cross-examination of the employer. However, you have some information in the employer’s correspondence with the EDD and the Record of Claim Status Interview, and you can anticipate possible defenses the employer might use.

In cross-examination, avoid open-ended questions, and ask questions that require a “yes” or “no” answer to pin down the employer. For example, ask leading questions where you can control the employer’s response like “Isn’t it true that….” The more room you give for the employer to respond, the greater chance the employer has to say something that might hurt the claimant’s case. Do not ask the employer to give their version of events.

If you feel there is nothing to gain, then it is acceptable not to cross-examine a witness. You should pay attention to what the witness does not say if they fail to respond to the point of your case. Rather than cross-examining the employer about this point, bring it up in the closing statement.

Redirect

Redirect questions are useful in allowing the claimant to address the employer’s cross-examination allegations. Do not ask these questions during a direct examination; they should only be used to clarify something after a cross-examination.

Closing Argument

The closing argument is a brief summary of how the facts of your case relate to the law, citing regulations, code provisions, and case law. The closing argument should be brief to respect the time and knowledge of the Administrative Law Judge, and not dumb the arguments down. Try to stick to between two and five minutes.

Have your closing argument outlined when you prepare your questions so you can piece it together from the points you raised and the facts that were discussed in the hearing. It will also keep your closing argument more dynamic, rather than feeling scripted, while also keeping you on topic. Refer to documentary evidence or testimony in your closing argument.

Preparing the Claimant for the Hearing

Meet with the claimant as close to the hearing as possible so you can run through what to expect in the hearing and how to answer direct and cross-examination questions.

  • What to expect – Claimants may feel anxious about confronting or testifying against a former employer, or the courtroom setting itself. Laying out the process and what the hearing will look like will help ease the claimant’s nerves. Walk them through step by step, even discussing how the claimant will get there, what to wear, and what time they should arrive.
  • Practice for examination – The claimant should be prepared for any questions that you, the Administrative Law Judge, and the former employer may ask during the hearing. It is important not to tell the claimant what to say, as they need to answer in their own words. However, if the claimant knows what information is key to your theory, and which pieces of information are irrelevant or unhelpful to the case that will ensure it goes smoothly. The claimant should also be aware that your job is to bring certain facts to light through your questioning, so follow up questions may be necessary to encourage the claimant to reveal that information. This is also your chance to ensure your questions are clear for the claimant and will prompt them to give relevant information. The important thing is to make sure your client feels prepared and therefore confident, but that the answers do not seem rehearsed or coached.

 

You should also prepare your client for cross-examination and ensure your client knows how to answer questioned designed to pick holes in their testimony. Focus on any weak points in the case and let your client know what information they should steer their answers towards.

Here is some advice to help your client respond to any questions in a way that will help your case.

  • Answer the specific question – Pause before answering each question to identify the key part of the question and how it may affect your case. Only give enough information to answer the question and nothing more.
  • If the question is unclear or confusing, ask for clarification – The worst thing the claimant could do is give an incorrect or contradictory answer due to confusion. Make sure your client knows to ask for clarification if they are unsure.
  • Respond honestly and respectfully- The Administrative Law Judge needs to see the claimant as credible, so the way the claimant responds is just as important as what they say. For example, if one of the factors on the case is the claimant’s anger, then if the claimant displays a short temper, it will damage their credibility.
  • Do not talk too much – Respond directly to the question. It is better to say too little than too much; if the Administrative Law Judge feels you did not answer satisfactorily, they will ask a follow-up question. Giving too much information may frustrate matters.
  • Do not get confrontational or angry with the employer – It is a really emotional process, but no matter what happens, the claimant must remain calm and respectful. The claimant needs to tell their story and not allow the employer to rile or upset them, even if the employer lies. Any rude, confrontational, or sarcastic response will damage the claimant’s credibility. If the claimant feels emotional or like they need to cool off, they can ask for a short break. The Administrative Law Judge will not allow either party to be abusive.

The Hearing

The appeal hearing is a way to get an independent party (the Administrative Law Judge) to examine the legal merits of the case and either reverse or affirm the EDD’s determination. The Administrative Law Judge will make a decision based on the facts, with no weight given to the EDD’s previous decision. The hearing will create a record of the facts of the case which will be used in any future appeals. Hearings will be allotted 45 minutes and will be continued on another day if the hearing is not completed during the scheduled time. It is rare for them to last longer than an hour.

Who May Attend the Hearing?

  • The parties – All of the involved parties may attend the hearing and give evidence. It is not required that the party not appealing attend the hearing, but they may do so if they wish. The EDD is a party to the hearing so they may attend the hearing to represent or defend their decision. However, it is uncommon for the EDD to have a representative in a hearing.
  • Witnesses and representatives – All parties may bring witnesses and have an advocate or representative who may present legal arguments and ask questions on their behalf. The representatives do not need to be a licensed attorney.
  • The public – Most hearings are open to the public, 524,but it is rare that people other than the parties, witnesses, and representatives attend. Those who want to attend or observe the hearing should ask permission of the Administrative Law Judge as a courtesy.

Before the Hearing

You and the claimant should arrive early to the hearing. When you arrive, check-in with the receptionist as the claimant’s representative and request a copy of the decision be mailed to your office.

The receptionist will offer you the opportunity to review the Appeal File. Even though you have already examined the Appeal File, it is good to check it to ensure new information was not added. There is only one official copy of the Appeal File, so all parties have to share it before the hearing.

If the claimant requires an interpreter, then confirm with the receptionist that the interpreter has arrived. The claimant can access the interpreter before the hearing to review the Appeal File. If the interpreter does not attend the hearing, it will have to be rescheduled. The CUIAB must provide an interpreter to those who need it. 525

If the appealing party is late or does not attend the hearing, then the Administrative Law Judge can dismiss the case. 526  If the claimant is running late, they should call the Office of Appeals right away. The Administrative Law Judge will often wait fifteen minutes after the hearing time before they dismiss the case, but that is not a requirement. The hearing may not start on time if the prior hearing runs late.

When all the parties have checked-in, and the Administrative Law Judge is ready, the Administrative Law Judge will escort the parties and witnesses from the waiting room to the hearing room.

Opening the Hearing

The hearing room looks like a small conference room. The Administrative Law Judge will guide the hearing and decide

  • What evidence to admit
  • Who may attend
  • What testimony will be heard
  • If a party is talking too much
  • If the testimony is relevant
  • Whether there is a departure from procedure
  • Who is telling the truth
  • When the hearing will end

The Administrative Law Judge will generally help an unsophisticated claimant and help them if they get stuck, or answer questions. The claimant and representative should be respectful to the Administrative Law Judge and not be intimidated by them. They should also not interrupt the Administrative Law Judge.

The Administrative Law Judge will sit at the head of the conference table; they will not wear a robe. Each party will sit on opposite sides of the conference table with their witnesses. As the representative, sit between the claimant and the Administrative Law Judge, so your client is facing them when they answer your questions.

The hearing will follow this procedure, guided by the Administrative Law Judge:

  • The audio recording device will be turned on to record the proceedings.
  • The Administrative Law Judge will give a brief overview of the procedure and check if anyone has any questions as well as briefly explaining the applicable law to the case’s issues.527 For a misconduct case, they might read the legal definition of misconduct, for example.
  • Documents in the appeals file will be numbered, and barring any objections, will be admitted into evidence.
  • The parties and witnesses will be sworn in. 528 After this, the Administrative Law Judge will often ask the witnesses to leave the room until it is their turn to testify.
  • The names and role of representatives will be stated for the record. You can give the Administrative Law Judge your business card.

 

The Case

During the hearing, the Administrative Law Judge will do most of the questioning. At the start of the hearing, they will decide which party they want to question first and explain in which order they want testimony and evidence to be presented. 529  It is rare to give an opening statement, but if the case if complex, one of the parties may request to give one.

Claimant’s case – The Administrative Law Judge will usually examine the claimant and their witnesses. If the case is a voluntary quit, the claimant is often questioned first to ascertain their reason for quitting. If the case is a discharge, then the employer will be questioned first, and then the claimant will be given a chance to respond to the charges of misconduct. If the claimant has relevant documents, they can present them to the Administrative Law Judge to be submitted to evidence. Once the Administrative Law Judge has finished questioning the claimant, the representative will have a chance to question further if needed. In some cases, the Administrative Law Judge may ask the representative to conduct all the questioning. If any important testimony or facts were not raised in the Administrative Law Judge’s examination, this is the chance to elicit them. If you have prepared questions, check them off as the Administrative Law Judge asks them, or is given that information and then ask any remaining questions. In some cases, you may have a lot of questions to ask, in other cases, none. Once the Administrative Law Judge and you have finished examining the claimant, the employer or their representative will be given a chance to cross-examine the claimant, and then you will redirect if necessary. This is the same process for witnesses.

Employer’s case- The Administrative Judge will ask the employer and the employer’s witness questions. The employer can also give documentary evidence to the Administrative Law Judge.

You will have the chance to cross-examine the employer and their witnesses to undermine their credibility. It is good to prepare some cross-examination questions in advance, but you will also need to think on your feet to tailor your cross-examination to the employer’s testimony. Do not ask too many questions though, if the employer has inconsistencies in their story, do not ask about it and give them a chance to clarify. Instead, point it out in your closing arguments.

If it is the claimant does not have a representative and is cross-examining questions, they should not let their emotions get the best of them. Any questions should be asked calmly and respectfully, and not be argumentative or irrelevant. The claimant does not have to question their employer if they do not think it will be helpful or would re-emphasize the employer’s side of the story.

Presenting Evidence: Witnesses, Documents, and Objections

Formal evidence rules do not apply to the hearing. The Administrative Law Judges ascertain the main rights of the parties530 and admit relevant evidence that a reasonable person may rely on. 531  However, the Administrative Law Judge may decide to exclude evidence, even if it is relevant, because it may take too much time, or create prejudice or injustice. 532 This also means that both parties can admit copies of documents into evidence, and use hearsay testimony.

Witnesses – An in-person witness testimony is given more weight than an affidavit, even if it is a sworn affidavit. 533  This is because the other party can cross-examine the witness. However, an affidavit will trump and unreliable or contradictory witness. 534  Therefore, where possible, a claimant should try and secure a witness, but they should not worry if they need to submit an affidavit.

Documents – The claimant can submit documents that are relevant to the case, such as letters to and from the employer, and performance reviews. You can submit copies rather than the originals, but it is best to bring the original to the hearing if the claimant has them. You will need three copies, one for the claimant, one for the employer, and one for the Administrative Law Judge. You can admit documents by:

  • You can ask the receptionist to add the documents into the appeal file in the waiting room before the hearing. If the employer is present in the waiting room, you should give the employer their copies right then. At the start of the hearing, the Administrative Law Judge will number and admit the documents into evidence.
  • You can introduce the documents into evidence by questioning the claimant about what the document is and where it came from during the hearing. If the claimant does not have a representative, they can present the documents to the Administrative Law Judge who will ask the necessary questions.

Objections

The Administrative Law Judge will not always ask if either party has objections to evidence or testimony, so you will need to interject. You will need to state your reason for the objection and identify what you are objecting to. For example:

  • Irrelevant – If the employer is testifying or presenting evidence that is irrelevant to the case, but damaging to the claimant’s interests, then you may object. “Your honor, I object to the employer’s evidence/testimony because it is irrelevant.”
  • Hearsay – Hearsay is where someone is testifying about something they did not directly see. 535 For example, if an employer testifies that a co-worker said that they saw the claimant steal money from the till that is hearsay. While hearsay is admissible in an appeal hearing, it is given less weight than if the co-worker who saw the theft was testifying. Objecting to hearsay will let the Administrative Law Judge know that the evidence is hearsay.
  • Misleading – If a claimant cannot answer a question without unintentionally admitting something, then the question is misleading. For example, if the employer or their representative asked the claimant “Do you still get drunk?” If the employee answers with a simple no, then their answer could be taken to mean they did in the past. You could also object to this particular question because it is irrelevant and assumes facts, not in evidence.
  • Compound – A compound question is one where the respondent has to answer to a few parts. For example “Did you fail to turn up to work on the 8th of June and not call your employer?”
  • Argumentative – This is a question which shows the examiner’s view of the facts. For example, an employer asking “Why did you continue to leave voicemails for your colleague after you were warned to stay away from them?” This is argumentative and also assumes facts, not in evidence.
  • Assumes facts, not in evidence – If the employer asks a question about information that is not in evidence, or not part of previous testimony, then you can object. “Your honor, I object to the employer’s question of the claimant because it assumes facts, not in evidence. The employer’s representative is providing information rather than asking a ”
  • Speculation – If the employer is asking a question that is hypothetical or calls for a speculative answer, then this is objectionable. For example, and employer asking “Do you really think I would fire someone for one minor mistake?”

It is important to read the mood of the Administrative Law Judge, as some do not like constant objections interrupting the testimony.

Closing the Hearing

Each of the parties will have a few minutes each at the end of the hearing to give a closing statement if they wish. 536  The closing statement should be no longer than five minutes and connect the testimony and the appropriate laws or case law.

The Administrative Law Judge will be familiar with the laws and case law applicable to the case, so it is not necessary to make a closing statement. In some cases, the Administrative Law Judge will say there is no need for a closing statement, and the claimant should only insist on giving one if they believe it is important to present certain information.

After the closing statements, the Administrative Law Judge will ask both parties if they have any questions and then advise them when they will hear the decision, stop the recording, and escort the parties out of the hearing room.

 

The Decision

The claimant will receive the Administrative Law Judge’s decision in writing within three weeks of the hearing. 537  Sometimes the decision may take a little longer, if the claimant has not received the decision within a month, then they should call the Office of Appeals for an update.

In the decision, the Administrative Law Judge will outline the facts that lead to their decision, and the legal reasons for their decision. 538  If the claimant filed their appeal late, and the Administrative Law Judge decides that the claimant did not have good cause for the late filing, then they will not make a decision on the appeal, even if they heard evidence during the hearing.

If the claimant does not agree with the decision, they can appeal to the CUIAB.

 

Advocate Checklist for a First-Stage Appeal Hearing

Once the claimant has submitted their appeal and received their notice of hearing, this checklist will ensure you and the claimant are prepared for the hearing.

Step One: Detailed Client Intake Interview

  • Ensure the client remembers their ongoing duties throughout the process (Continued Claim Forms and job search.)
  • Review the agency notices and employment documents of the claimant.
  • Ensure you fully understand all the facts of the case, including a chronology of events.
  • Get the Appeal File immediately so you and the claimant can familiarize yourselves with it.
  • Secure any necessary documents, witnesses, or affidavits.
  • Organize retainer agreements and authorization forms.

 

Step Two: Preparing for the Hearing

  • Closely examine the Appeal File and question the claimant about inconsistencies with their story.
  • Secure documents, witnesses, and affidavits.
  • Note the applicable laws and case laws and develop a strong “theory of the case.”
  • Plan out examination and cross-examination questions for the claimant, employer, and all witnesses.
  • Plan out the closing statement outline.

 

Step Three: Preparing the Claimant for the Hearing

  • Remind the claimant about their ongoing duties throughout the process (Continued Claim Forms and job search.)
  • Give the claimant a detailed idea of what to expect and how the hearing will be conducted.
  • Practice examining and cross-examining the claimant, so they know what to expect, and you can give them feedback. Do not coach the client or have them memorize responses.

 

Step Four: The Hearing

  • Arrive early so you can check-in and review the Appeal File for new information.
  • Connect with the interpreter if applicable.
  • Remind the claimant to remain calm and respectful throughout the process.
  • Remind the claimant to ask for clarification if they do not understand the question, and to keep their answers brief and to the point.
  • Make sure your client provides all the important facts in their testimony.

Step Five: After the Hearing

  • Remind the claimant about their ongoing duties throughout the process (Continued Claim Forms and job search.)
  • Ask the claimant to notify you of any changes and check their contact information.
  • After receiving the Administrative Law Judge’s written decision, make sure they understand it and their rights, discuss the deadlines for the next appeal and your role in future appeals if applicable.

Board Appeals

If the claimant disagrees with the decision of the Administrative Law Judge, then they have 20 calendar days from the mailing date of the decision to appeal to the Appeal’s Board. 539  This is a second-stage appeal. If the claimant files their appeal late, it will be dismissed unless there is good cause.

There are seven members of the Board, two of which will review the record of the hearing and the Administrative Law Judge’s decision. If they cannot agree on their decision, a third member of the Board will break the tie. 540  As the first-stage appeal record is pertinent to the second-stage appeal; all parties can request a copy of the appeal hearing record and present a written argument to the board.

The Board will make their decision based on the testimony, evidence at the hearing, and the record of the appeal hearing. It is unusual for the Board to overturn the Administrative Law Judge’s decision; it will only happen if they feel that it goes against the evidence or is a subjective decision. 541  So, unless there is a glaring legal error or the decision seems unsupported by the record’s evidence, the Administrative Law Judge’s decision is usually upheld. Because of this, the second-stage appeal is very difficult to win.

If the appealing party wishes to withdraw their appeal, they can notify the Board any time before they give their decision. 542  If an appeal is withdrawn, it can be reinstated if they make the request within twenty days of the dismissal order and shows good cause for the reinstatement. 543

Step One: File the Appeal

While the appeal needs to be filed in writing, 544  it does not need to have a lengthy statement of the reasons for the disagreement with the Administrative Law Judge’s decision. 545  It is enough to simply write a letter saying that you disagree with the decision, and would like to appeal. This letter should include the appealing party’s name, phone number, address, social security number, and the case number, along with the signature. This appeal letter is sent to the Office of Appeals.

Step Two: Acknowledgement of Appeal

Both parties will receive written notice of the appeal and the Appeal Board case number to track future correspondence. This notice will also have procedural options.

Step Three: Requesting a Copy of the Record

Both parties can request a copy of the record within twelve calendar days of the mailing of the appeal. The record of the hearing includes a copy of the tape of the hearing, and a transcript, as well as the documentary evidence. The claimant will not be charged for the copy of the record. 546  When they get the copy of the record, they will receive a new deadline for submitting their written argument, twelve calendar days after the record is mailed. 547

Step Four: Additional Evidence

In most cases, the Board will only make their decision based on the facts in the hearing record and the documents in evidence. However, they may request additional evidence, or allow parties to submit additional evidence. The request to submit additional evidence must be made in writing and show why the additional evidence should be considered as well as why it wasn’t presented in the first-appeal hearing. The other parties must receive a copy of the written request, and the Appeals Board must be sent proof that they have been served this copy.

The Board may accept the additional evidence, and ask the opposing party to respond to the evidence. 548

Step Five: Written Argument

If the claimant decides not to request the record, they will have twelve calendar days from the mailing date of the appeal acknowledgement to submit their written argument. 549 If the claimant does request a copy of the record, then they have twelve calendar days from the mailing for the record to submit their written argument. 550  Because the deadline is so tight; it is a good idea to start planning out the written argument immediately after requesting the record. Written arguments are not necessary; the Board will make its decision based on the appeal record if one is not submitted.

The written argument should present the facts of the case as they were presented to the Administrative Law Judge and any legal arguments that are relevant. There is no particular format for the written argument, but it should only reference evidence on the record. The written argument will look different depending on if your goal is to overturn or uphold the Administrative Law Judge’s decision, or if your arguments are based on the facts or legal information. However, all written arguments should have the following structure:

  • Introduction – This should be brief and offer the information needed to identify the case (Appeal Board case number, claimant’s name and social security number) and identify yourself as the claimant’s representative. It should also note whether you wish the Administrative Law Judge’s decision to be overturned or upheld.
  • Statement of facts – This is where you cite facts in the hearing which support your case if possible cite the page number or part of the hearing where the fact was presented either in evidence or testimony. The Board has a copy of the record, so do not misstate the facts, but do present them in the best light possible for your case.
  • Arguments – This section is the main part of your brief, make sure each argument is given its own section to make it clear. For example, one paragraph could raise your belief that the Administrative Law Judge incorrectly applied the burden of proof, and another could argue that there was no evidence in the record to prove the claimant’s misconduct. Place your strongest arguments based on the law first, and support them with legal authority, and evidence in the record.
  • Conclusion – Either write a conclusion that briefly restates the arguments presented, or write a line stating that the above reasons are why the Administrative Law Judge’s decision should be upheld or overturned. All parties must be mailed a copy of the written argument, and proof that this has been served must be sent to the Board.

Step Six: The Board’s Decision

The Board’s decision will be issued in writing, laying out the reasons why it came to that decision and the appeal rights. 551  Most decisions will be made within sixty days of the appeal submission. 552  If the Board overturns the decision that the claimant is eligible for benefits, but the EDD and Administrative Law Judge decided that the claimant was eligible, then they will not need to repay any benefits. It the Board decides that the claimant is in fact eligible for benefits, thus overturning the Administrative Law Judge’s decision, then the claimant will receive back pay for the weeks they would have been eligible.

Contact the claimant right away after the Board’s decision has been issued to check if they have any questions. Explain each of the party’s appeal rights, and that the “losing” party may still appeal a writ of mandate in superior court.

 

Writs

The next stage of appeal is by Writ of Mandate to the appropriate venue of the superior court. 553  The claimant has six months from the CUIAB decision mailing date to file their writ. 554  The claimant must have gone through the process of appealing to the Administrative Law Judge and then the Board first. 555

The superior court will look at the record of the appeals to ensure the claimant’s hearing was fair, and there was no prejudice involved in the discretion. 556  Limited new evidence will be considered, and only if the evidence was improperly excluded during the previous hearings or could not diligently be accessed before this point. 557

Chapter 7 – Special Programs

Along with benefits, California’s Unemployment Insurance system also includes other programs like:

  • Benefit Extensions
  • Work Sharing Program
  • Partial Claims for Benefits
  • California Training Benefits Program
  • Disaster Unemployment Insurance
  • Trade Adjustment Assistance

This chapter is an overview of each program.

Benefit Extensions

Once a claimant has used their normal Unemployment Insurance benefits, they may be eligible for an extension through the Emergency Unemployment Compensation program and the Federal Extended Duration program. In California, EUC benefits are usually paid prior to Fed-ED benefits.558 Claimants cannot simultaneously collect both benefits.

Emergency Unemployment Compensation Program.

In 2008, the Supplemental Appropriations Act was signed by President Obama. This Act provided for the EUC program, which has since been amended four times. 559

Benefits

The EUC program is completely funded by the federal government and for claimants who have exhausted their unemployment insurance benefits may have four tiers of extra benefits. In all states, the first tier provides 20 weeks, and the second tier provides 14 weeks of benefits.560 Tier three provides 13 weeks, and tier four provides six weeks of benefits for claimants who live in all states. 561

Their weekly benefit amount will be the same on EUC as it is on regular unemployment insurance benefits.562

State Eligibility Requirements

There are no eligibility requirements in California for tiers one and two EUC benefits. However, the state requires certain conditions to “trigger” tiers three or four.

Tier Three

Tier three is triggered when:

  • The Insured Unemployment Rate in California is 4% or higher.
  • The Total Unemployment Rate in the last three months is 6% or higher. 563

Tier four is triggered when:

  • The Insured Unemployment rate in California is 6% or higher.
  • When the Total Unemployment rate is 8.5% or higher. 564

California needs to hit these thresholds to “trigger” eligibility for tier three or four benefits.

Claimant Eligibility Requirements

For additional EUC benefits, the eligibility requirements are stricter. The standard unemployment insurance eligibility criteria are required, plus the claimant must have:

  • Exhausted all possible unemployment insurance benefits
  • Worked 20 weeks of full-time and insured employment, or the equivalent amount of insured wages in the underlying, applicable base period. 565 This means the base period earnings must have been more than 40 times the amount of weekly benefits, or 1.5 times the base period’s highest-grossing quarter.566

Dates

The EUC is a temporary program. An individual must file an extension with the EUC before the 21st of February. 567 An individual must augment to another EUC tier by the 28th of February.568 Once the claimant has successfully gained a particular benefit tier; they can be paid those benefits until the week ending the 6th of August. 569

Process

Claimants do not need to file a claim; the EDD will automatically file it on their behalf if they are eligible. Similar to the regular benefits, the claimant will submit Continued Claim Forms to show their ongoing eligibility.

Federal Extended Duration Program

The federal government enacted the Fed-ED program in 1970. Since then, the program has been amended multiple times, but it is a permanent extension program. 570

Benefits

Half of the funding for the Fed-ED program comes from the state government, and half of the funding comes from the federal government. This is for claimants who have exhausted unemployment insurance benefits, and EUC benefits. The weekly benefit amount on Fed-ED is the same as a weekly benefit amount on unemployment insurance claims.

State Eligibility Requirements

Just like EUC benefits, the state has to “trigger” for Fed-ED period. The two circumstances that need to exist are:

  • The Insured Unemployment Rate in California is 5% or higher, and it is 120% in comparison to the average of the rates in the preceding two years.
  • When the IUR in California is 6% or higher. 571

Even when the state’s unemployment has been really high, it has never been above 5%, so a Fed-ED period is rarely triggered. Without that being triggered, claimants cannot receive Fed-ED benefits.

In 2009 President Obama passed the American Recovery and Reinvestment Act. In 2010 the federal government had to pay for 100% of the Fed-ED benefits temporarily. 572

That year, California Governor Schwarzenegger made the following “trigger” requirements:

  • A Total Unemployment Rate for the last three months of 6.5% or higher.
  • When the Total Unemployment Rate is 110% of the same period in the last two years. 573

This provision also gives 20 weeks of extended benefits when there is a high unemployment period. A high unemployment period is when:

  • The total unemployment rate is more than 8% over the last three months
  • The total unemployment rate is 100% of the same months in the last two years. 574

Claimant Eligibility Requirements

The eligibility requirements for Fed-Ed are much stricter than the unemployment benefits. In addition to the standard unemployment insurance benefits, Fed-ED claimants must do all of the following:

  • Have exhausted all the unemployment insurance benefits and EUC benefits.
  • In the base period had twenty weeks of full-time and insured employment, or alternatively, the equivalent in insured wages.575 This must be 40 times the weekly benefits amount, or 1.5 times the base period’s highest-grossing quarter. 576
  • Show three job search contacts on the back of each period’s Continued Claim Form.577
  • Will accept offers of suitable work, even if it is not the claimant’s usual occupation. Due to the amount of time the claimant has been unemployed, the definition of suitable is much broader than it is in unemployment insurance benefits.578

Process

The EDD will file on behalf of the claimants for Fed-ED, the claimant’s do not need to file a claim. The Continued Claim Forms need to be filed to establish ongoing eligibility.

Work Sharing Claims

California’s Work Sharing program was established in 1978. 579 The Work Sharing program was created to help both employees and employers cushion the difficulties of a lay-off. Employees receive unemployment insurance Work Sharing benefits when their hours and wages are reduced, and employers do not have to go through an expensive recruiting and training process.

Eligibility

If an employer has any conditions that mean they need to seek alternatives to layoffs, then they can participate in the Work Sharing program. Participation is voluntary for employers,580 but the requirements are:

  • At least two employers, which is at least 10% of the usual workforce, must have a reduction in wages and hours.
  • The wage and hour reduction is at least 10%.581

Benefits

When employees are in the Work Share program, they will receive a reduction in their wages as benefits. If the wage and hours have different reductions, then they will be paid the lower percentage. If there are additional wages earned that week, then the amount will be deducted from the Work Share benefits.

For example, if an employee usually works five days a week and is paid $500, and there is a 20% reduction in wages and hours (so a four day work week and $400.) Under the Work Share program, the employee will receive 20% of the unemployment insurance benefits they would usually receive. So, since the employee would usually receive $300 in unemployment insurance benefits, they will get $60 in Work Share benefits.

The Process

The employer must submit a Work Sharing Plan Application to the EDD. If there is a collective bargaining agreement in place, then the application must be signed by each of the bargaining agents.

The EDD will review the application and send a letter of approval if they are eligible as well as ten weeks’ worth of employee weekly certification forms. Unless there is re-authorization, the plan will expire six months after the effective date.582 If the plan is not being enacted according to the terms, then the EDD is able to terminate a Work Sharing plan. 583

Employers will give the certification forms to Work Share employees during the weeks that they work reduced wages and hours. The employee will complete each of their forms and send them to the EDD. The first form an employer will submit is a Work Sharing Initial Claim and Payment Certification, every week after that will be a Work Sharing Certification form.

Partial Claims

Partial claims are mostly the same as regular claims with two exceptions. Firstly, employers need to certify a partial claim. Secondly, claimants can only get partial claims if they earn less than 1.33 times the weekly benefit amount. The full Work Sharing program is available to all employees, regardless of their salary.

Eligibility

If an employee meets the following conditions, they are eligible for a partial claim:

  • They were employed by a regular employer
  • They work less than their normal full-time hours because there is a lack of full-time work.
  • Their employment has not been severed. 584
  • Their gross earnings are less than the weekly unemployment insurance benefits, after deducting 25% or $255.

A person is not eligible for a partial claim if:

  • They are receiving Work Sharing benefits
  • Have been laid off for more than two consecutive weeks, where they did not perform any duties for their regular employer. 585

 

The Process

The employer will receive a “Notice of Reduced Earnings” from their employer. This form will show that they expect the employee to return to work. The employer will give the completed form to the partially unemployed employee by five days after the payroll week. 586

The employee will fill in their section and submit the form to the EDD, thereby filing their unemployment insurance claim. The claimant has twenty-eight days from the date they received the Notice of Reduced Earnings to file their form. 587   This deadline may be extended if the claimant can give good cause. 588 If the claim is not filed until 13 weeks after the end of the benefit year, then the claimant will be invalid. 589

There is no job-seeking requirement for partial benefit employees, as they are still employed.

California Training Benefits Program

If a claimant does not have competitive job skills, they can receive unemployment insurance benefits while attending an EDD approved training program. There is also a Training Extension which allows a claimant to receive benefits for up to 52 weeks. The unemployment insurance benefits are no longer a wage replacement, but financial assistance while the claimant is training for better job prospects. If the claimant is in the CTB program, they do not have to look for work or prove availability to work. 590

Eligibility Requirements.

The claimant has to enrol in an EDD approved job training program, and fill their TE claim out in a timely manner.

Approved Job training program

If a claimant is eligible for unemployment insurance benefits and enrolled in approved training, then they are automatically eligible for CTB. The training needs to be approved by the federal Workforce Investment Act, 591 the Federal Trade Act of 1974, 592 and the state-funded Employment Training Panel. 593Alternatively, if the claimant participates in the Work Opportunity and Responsibility to Kids program, they will also be eligible. 594

Other than that, a claimant must meet all of the following requirements to be eligible: 595

  • They are unemployed for more than four weeks and unlikely to return to their most recent job or workplace due to closures, technological advances, layoffs, or because of a disability which stops them from using their existing skills.
  • There are no reasonable job opportunities that fit their experience and training in their geographic area. 596
  • The training that the claimant has chosen is for a skill or occupation that has reasonable job opportunities.
  • It is a full-time training program that is a year or less.
  • The skills learned in training will allow the claimant to get a job immediately, rather than to get into a degree from a university, college, or community college.
  • The claimant can complete the training.

The two requirements that are the most difficult are to show the lack of job opportunities in the claimant’s current skills, and showing that there are a reasonable amount of job opportunities in the field that the claimant is training for.

Filling the Training Extension Claim in a Timely Manner

A claimant will receive 26 weeks of regular benefits but can apply for a Training Extension which is another 26 weeks of additional benefits. To do so, the claimant must make an enquire before the 16th week of the benefits about the CTB benefits and contact the EDD.597 The waiting period and working weeks do not count towards the 16th week, as the claimant does not receive benefits during those times. 598 If the claimant misses the deadline, even with good reason, they will be invalid for training benefits.599 The only exception is if the claimant did not receive the notification that they are eligible for benefits, and that is why they missed the deadline. This is because the EDD did not meet their duty to notify the claimants about training benefits.600

Continuing Eligibility Requirements

A claimant on training benefits does not have the same eligibility requirements in terms of job searching.601  However, they must be able to mentally and physically work.602 They must also show written confirmation of their progress and attendance on the Continued Claim Form.603 If they do not provide this verification, they will not receive benefits for that week.604

Training Benefits

A claimant can receive up to 52 weeks of benefits if they qualify for training benefits, less any regular unemployment claim benefits, and federal extension benefits.605 For example, if a claimant received six weeks of regular unemployment benefits before applying for their training benefits, they could receive 46 weeks of benefits instead of 52. The claimant will receive benefits until they exhaust the maximum amount of benefits, or the training is complete.

Disaster Unemployment Assistance

The Disaster Unemployment Assistance is the federal program that helps self-employed and unemployed workers who are unemployed because of a huge natural disaster. A huge natural disaster could be a storm, flood, high water, hurricane, tornado, tidal wave, earthquake, fire, drought, wind-driven water, or any other natural catastrophes.

Eligibility

An individual will be eligible for DUA benefits if they meet the following eligibility requirements: 606

  • The week of unemployment starts in the Disaster Assistance Period
  • The claimant is an unemployed self-employed or an unemployed worker.
  • The claimant’s unemployment for that week was caused by a major natural disaster. 607
  • The claimant has filed an application to the DUA in a timely manner
  • The week in question is a week of unemployment for the claimant.
  • The claimant is available and able to work as per state law definition. This can also include those who have injuries caused by the natural disaster that prevents them from working.
  • They have not refused a genuine offer of suitable employment, or to return to their job if that could have been done that week or previous weeks during the Disaster Period.
  • The claimant is not eligible for a waiting period credit or compensation608from any other Federal or State program.

 

Benefit Payments

The DUA’s weekly payments are calculated in the same way as normal unemployment insurance benefits. The Base Period is calculated from the recently completed tax year before the final day of work. This will be the last calendar year for most claimants.

An unemployed, self-employed claimant can use their net self-employment earnings for their claim. Their claim must still use the most recently completed tax year.

The minimum weekly amount will be half of California’s average unemployment insurance benefit amount.

Federal regulations say that weekly DUA payments will be reduced by partial earnings, supplemental unemployment insurance benefits, private income protection insurance, or disability or illness insurance.

Duration of Benefits

DUA benefits are only available for weeks during the Disaster Assistance Period, which is the first day of the week following the disaster date, and 26 weeks after the date of the disaster.

Trade Adjustment Assistance

This was established in a 1974 Trade Act to ensure workers who have lost their jobs because of imports or outsourcing have assistance. It has been amended several times, most recently in 2009, when the coverage was expanded to cover more firms and workers.

Allowances and Special Assistance

During periods of unemployment, eligible workers will receive Trade Readjustment Allowances. They will also gain access to employment services, job search, relocation, and training services. Eligible claimants may also be enrolled in the Health Coverage Tax Credit program.

The claim will be paid within a 130 week benefit period beginning the week after the worker’s most recent separation that qualifies for TRA. Within this period, the claimant may receive up to 26 weeks of unemployment insurance benefits, 26 weeks of TRA benefits, and up to 78 weeks of extra TRA allowances while training. If the claimant needs to attend remedial education courses, they may also receive another 26 weeks of TRA allowances.

The weekly TRA amount will be the same as the unemployment insurance weekly benefit amount. The maximum TRA benefit is the weekly unemployment insurance benefit amount times 78, minus the related extensions and worker’s unemployment insurance claim.

Petitioning for TAA

A group of three or more workers, their union, or authorized representative may file a petition for TAA if import competition has contributed to their unemployment. They should file the petition with the US Department of Labor to determine eligibility.

Certification

If the US Department of Labor rules that the unemployment was caused by increased import competition, then it will issue an eligibility certificate so that any employees who have had their hours reduced, been laid off or are incumbent may apply for TAA.

This certificate shows that the US DOL has given official authorization for the workers to apply for TAA. It will also give the eligibility date for applications.

When a worker discovers their group has been certified, they must contact the local EDD office so they can determine if they qualify.

Qualifying Requirements

The basic requirements to qualify are:

  • The worker has been laid off for lack of work between the trade impact dates on the certificate.
  • The worker must have earned over $30 in weekly wages, 26 out of the previous 52 weeks in the affected employment.

If an affected worker finds out about the eligible certification after they have moved to another state, they should contact the nearest employment office to immediately file an application for TAA benefits.

APPENDICES

A.  Additional Resources

 

Primary Sources

California Unemployment Insurance Code:

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=uic&codebody=&hits=20

California Code of Regulations: http://ccr.oal.ca.gov

Employment Development Department (EDD)

Home Page:

http://www.edd.ca.gov/Unemployment/default.htm

Contact Information: http://www.edd.ca.gov/Unemployment/Contact_UI.htm

Benefit Determination Guide: http://www.edd.ca.gov/UIBDG/

Fact Sheets, Forms, and Publications: http://www.edd.ca.gov/Unemployment/Forms_and_Publications.htm

Frequently Asked Questions: http://www.edd.ca.gov/Unemployment/FAQ_-_Contacting_UI.htm

Unemployment Insurance – A Guide to Benefits and Employment Services (40-pg PDF): http://www.edd.ca.gov/pdf_pub_ctr/de1275a.pdf

California Unemployment Insurance Appeals Board (CUIAB)

Home Page:

http://www.cuiab.ca.gov/index.shtm

Contact Information: http://www.cuiab.ca.gov/directory.shtm

Twenty-Seven Ways to Avoid Losing Your Unemployment Appeal (11-pg PDF): http://www.cuiab.ca.gov/directory.shtm

Appeals Procedure (10-page PDF): http://www.cuiab.ca.gov/documents/Appeals%20Procedure%20Manual.pdf

Unemployment Appeals – A Guide for Claimants, Employers, and their Representatives (51-pg PDF): http://www.cuiab.ca.gov/documents/Unemployment%20Appeals%20Guide.pdf

Precedent Decisions http://www.cuiab.ca.gov/precedent_decisions.shtm

Secondary Sources

California UI and Disability Compensation Programs, 10th Edition (2006), David O’Brien FS&K Publishing, 23801 Calabasas Road #2025, Calabasas CA 91302, (818) 206-9234

B.  EDD and CUIAB Forms

 

For easy reference, the following list is comprised of all the EDD and CUIAB forms referenced in the text of the Guide, and the page number of each reference. (Check the lower left corner of any EDD or CUIAB form to find the form number, and then use the list below to find a discussion of that form in the Guide.)

Form # Form Name / Online version (if available) Page
DE 1000M Appeal Form http://www.edd.ca.gov/pdf_pub_ctr/de1000m.pdf 67
DE 1080CZ Notice of Determination/ Ruling http://www.edd.ca.gov/pdf_pub_ctr/de1080cz.pdf 57
DE 1101CLMT Notice of Unemployment Insurance Claim Filed (for Claimant) http://www.edd.ca.gov/pdf_pub_ctr/de1101clmt.pdf 48
DE 1101CZ Notice of Unemployment Insurance Claim Filed (for Employer) http://www.edd.ca.gov/pdf_pub_ctr/de1101cz.pdf 45
DE 1101I Unemployment Insurance Application http://www.edd.ca.gov/pdf_pub_ctr/de1101id.pdf 43
DE 1326C Request for Identity Verification http://www.edd.ca.gov/pdf_pub_ctr/de1326c.pdf 51
DE 1326CD Acceptable Documents For Identity Verification http://www.edd.ca.gov/pdf_pub_ctr/de1326cd.pdf 51
DE 1326E Request for Information http://www.edd.ca.gov/pdf_pub_ctr/de1326e.pdf 52
DE 1444CT Notice of Overpayment http://www.edd.ca.gov/pdf_pub_ctr/de1444ct.pdf 65
DE 1857A Employee Rights to UI and State Disability Insurance 5
DE 1857D Employee Rights to UI 5
DE 2063 Notice of Reduced Earnings http://www.edd.ca.gov/pdf_pub_ctr/de2063.pdf 101
DE 2320 For Your Benefit, California’s Program for the Unemployed http://www.edd.ca.gov/pdf_pub_ctr/de2320.pdf 5
DE 2456 CalJOBS Brochure http://www.edd.ca.gov/pdf_pub_ctr/de2456.pdf 50
DE 4209 Notice of Reduced Earnings: Completion Instructions http://www.edd.ca.gov/pdf_pub_ctr/de4209.pdf 101
Form # Form Name / Online version (if available) Page
DE 429Z Notice of Unemployment Insurance Award http://www.edd.ca.gov/pdf_pub_ctr/de429z.pdf 55
DE 4511WS Work Sharing Initial Claim and Payment Certification 100
DE 4581 Continued Claim Form 46
DE 4581WS Work Sharing Certification 100
DE 6315 Notice of Appeal and Transmittal of Appealed Determination 70
DE 8686 Work Sharing Plan Application http://www.edd.ca.gov/pdf_pub_ctr/de8686.pdf 100

C.  Acronyms

 

For easy reference, the following list is comprised of acronyms found throughout this Guide, and in various EDD and CUIAB materials and forms.

ALJ Administrative Law Judge
ARRA American Recovery and Reinvestment Act of 2009
BDG Benefit Determination Guide
BP Base Period
BY Benefit Year
CCF Continued Claim Form
CTB California Training Benefits program
CUIAB California Unemployment Insurance Appeals Board
DOL Department of Labor
DUA Disaster Unemployment Insurance
EB Extended Benefits
EDD Employment Development Department
ETA Employment and Training Administration
EUC Emergency Unemployment Compensation
FAC Federal Additional Compensation
FUTA Federal Unemployment Tax Act
HUP High Unemployment Period
IAW Initial Assistance Workshop
IUR Insured Unemployment Rate
LWIA Local Workforce Investment Area
MBA Maximum Benefit Amount
P-B Precedent Benefit Decision
PJSA Personalized Job Search Assistance
P-R Precedent Ruling Decision
SDI State Disability Insurance
SSA Social Security Act
TAA Trade Adjustment Assistance
TE Training Extension
TRA Trade Readjustment Allowances
TUR Total Unemployment Rate
UC Unemployment Compensation
UI Unemployment Insurance
UIB Unemployment Insurance Benefits
UTF Unemployment Trust Fund
WBA Weekly Benefit Amount

ENDNOTES

 

1            For the sake of variety and simplicity, “claimants” is used interchangeably throughout this Guide with “clients,” “workers,” and “former employees.” The occasional use of “clients” is not intended to suggest the establishment of a formal attorney-client relationship.

2            Public Law 74-271, approved August 14, 1935 (HR 7260).

3            There are three types of certifications. See Social Security Act § 302(a) and Federal Unemployment Tax Act

  • § 3303, 3304. Procedures for these certifications are codified at Code Fed. Regs., tit. 20, § 601.

4            Code Fed. Regs., tit. 20, § 602.1 et. seq.

5            Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494, 499. See also Wang v. C.U.I.A.B. (1990) 225 Cal.App.3d 412.

6            Unemp. Ins. Code, § 301.

7            Unemp. Ins. Code, §§ 305, 305.5, 305.6, 310.

8            http://www.edd.ca.gov/About_EDD/EDD_Services.htm.

9            To identify the subject matter covered in the precedent decisions, the precedents have been given a letter abbreviating the category. The most common are P-B (Precedent Benefit Decisions) and P-R (Precedent Ruling Decisions).

10          Unemp. Ins. Code, § 976.

11          Unemp. Ins. Code, §§ 1025, 1026.

12          Non-profit organizations and government employers can choose to forgo tax contributions and reimburse the state each quarter for benefits paid to former employees. Unemp. Ins. Code, §§ 710 (public entities), 801 (non-profit organizations).

13          In some types of separation from work, former employees otherwise eligible for benefits are paid out of the fund, but a specific employer’s reserve account is not charged. Unemp. Ins. Code, § 1032. For example, the employer’s reserve account may not be charged for benefits paid to a former employee who quit to move for her spouse or registered domestic partner.

14          Unemp. Ins. Code, § 976.

15          Unemp. Ins. Code, § 1342.

16          Unemp. Ins. Code, § 1342.

17          Unemp. Ins. Code, § 1237, subd. (a).

18          Unemp. Ins. Code, § 1237, subds. (a), (b).

19          Labor Code § 98.6.

20          Cal. Code Regs., tit. 22, § 10890-1, subds. (b), (c).

21          Unemp. Ins. Code, § 1089.

22          “Discharge” and “termination” are used interchangeably throughout this Guide.

23          Unemp. Ins. Code, § 1089; Cal. Code Regs., tit. 22, § 1089-1.

24          Unemp. Ins. Code, § 1089.

25          Labor Code § 1198.5.

26          Labor Code § 432.

27          Labor Code § 226; Wage Order § 7.

28          Labor Code § 226.

29          Id.

30          Unemp. Ins. Code, § 1276.  Cal. Code Regs., tit. 22, §§ 1253-1, 1253-2.

31          The EDD’s use of a Base Period that does not recognize or consider wages earned in the most recent months prior to a claim for benefits is both antiquated and unfair. Studies indicate that it disproportionately penalizes low-wage workers and women, who tend to move in and out of the labor force with greater frequency. In March 2009, in order to qualify for approximately $280 million in federal incentive funding, California enacted legislation (ABX3 29), which requires the EDD to implement an “Alternate Base Period,” which would consider wages earned in the most recently completed calendar quarter in determining eligibility for a UI claim. The legislation requires that these modifications be in effect by April 2011.

32          Unemp. Ins. Code, § 1276.

33          Unemp. Ins. Code, § 1275-1281.

34          Unemp. Ins. Code, § 1280.

35          Unemp. Ins. Code, § 1281, subd. (b).

36          Unemp. Ins. Code, § 601 et seq.

37          Cal. Code Regs., tit. 22, § 629-1, subd. (b).

38          Unemp. Ins. Code, § 629.

39          Unemp. Ins. Code, § 631.

40          Unemp. Ins. Code, § 632. (Note: Federal workers collect Unemployment Insurance through their state agency.)

41          Unemp. Ins. Code, § 634.5, subd. (a).

42          Unemp. Ins. Code, § 649.

43          Unemp. Ins. Code, § 642.

44          Unemp. Ins. Code, § 610.

45          Unemp. Ins. Code, § 646.

46          Unemp. Ins. Code, § 645.

47          Unemp. Ins. Code, § 647.

48          See Unemp. Ins. Code, § 1264 and Cal. Code Regs., tit. 22, § 1264-1, subd. (a).

49          Id.

50          Cal. Code Regs., tit. 22, § 1264-1, subd. (b).

51          Cal. Code Regs., tit. 22, § 1326-13, subd. (b).

52          Cal. Code Regs., tit. 22, § 1326-13, subd. (c)(1). Note that this section includes the complete list of satisfactory “verification responses.”

53          Cal. Code Regs., tit. 22, § 1326-13 subd. (a), citing to § 121 of the Immigration Reform and Control Act of 1986, 42 USC 1320(b)-7(d).

54          Cal. Code Regs., tit. 22, § 1326, subd. (a).

55          Cal. Code Regs., tit. 22, § 1326-13, subd. (b).

56          Cal. Code Regs., tit. 22, § 1326-13, subd. (b).

57          Cal. Code Regs., tit. 22, § 1326-13, subd. (c)(2).

58          Cal. Code Regs., tit. 22, § 1326-13, subd. (b).

59          Cal. Code Regs., tit. 22, § 1326-13, subd. (f).

60          Unemp. Ins. Code, § 100.

61          Unemp. Ins. Code, § 1256.

62          Unemp. Ins. Code, § 1256.3; P-B-154; P-B-267.

63          P-B-269.

64          P-B-5; P-B-270.  See also Cal. Code Regs., tit. 22, § 1256-2.

65          Cal. Code Regs., tit. 22, § 1256-2, subd. (c)(2); P-B-5; P-B-210; P-B-270.

66          Cal. Code Regs., tit. 22, § 1256-2, subd. (b)(3).

67          Unemp. Ins. Code, § 1256.

68          Unemp. Ins. Code, § 1327.

69          Zorrero v. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434 [120 Cal.Rptr. 855].

70          O’Connell v. Unemployment Insurance Appeals Bd. (1983) 149 Cal.App.3d 54 [196 Cal.Rptr. 505].

71          Yellow Cab Co. v. CUIAB (1961) 194 Cal.App.2d 343 [15 Cal.Rptr. 425].

72          Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-37.

73          Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-189; P-B-218.

74          Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-39. 75       Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-164. 76     Cal. Code Regs., tit. 22, § 1256-1; P-B-166.

77          Id.

78       Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-27. 79       Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-37. 80         P-B-102.

81          P-B-458.

82          Unemp. Ins. Code, § 1256.

83          Unemp. Ins. Code, § 1256; see also Zorrero v. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434.

84          Cal. Code Regs., tit. 22, § 1256-30(b).

85          Unemp. Ins. Code, § 100.

86          Rowe v. Hansen (1974) 41 Cal.App.3d 512.

87          Unemp. Ins. Code, § 1256; Maywood Glass Company v. Stewart (1959) 170 Cal.App.2d 719. See also Zorrero

  1. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434, Prescod v. California Unemployment Insurance Appeals Board (1976) 57 Cal.App.3d 29.

88          Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719 [339 P.2d 947]; P-B-214; P-B-222; P-B-224. See also

P-B-3 at 5-6.

89          Cal. Code Regs., tit. 22, § 1256-38. See also P-B-14; P-B-223.

90          Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719; Silva v. Nelson (1973) 31 Cal.App.3d 136 [106 Cal.Rptr. 908] (single offensive remark to employer was a mistake or error in judgment, not misconduct). See also P-B-3 at 5-6.

91          P-B-14 (a truck driver who had five accidents, three of which were his fault, in a single year committed misconduct).

92          P-B-193.

93          Cal. Code Regs., tit. 22, § 1256-43, subd. (b); P-B-191 (off-duty drunken driving not misconduct); P-B-189 (off- duty gambling not misconduct).

94          P-B-217 (off-duty possession of narcotics is misconduct for a pharmacist).

95          Cal. Code Regs., tit. 22, § 1256-30, subd. (c).

96          Id. See also Packers Hide Association v. NLRB (8th Cir. 1966) 360 F.2d 59; P-B-192.

97          P-B-106 (claimant was employed on a ship and employer said discharge was effective at the end of the voyage).

98          Cal. Code Regs., tit. 22, § 1256-36, subd. (b).

99          Cal. Code Regs., tit. 22, § 1256-36 (Comments).

100       Cal. Code Regs., tit. 22, § 1256-36, subd. (b)(1) (defining different types of orders that are considered unreasonable).

101       P-B-219.

102       Cal. Code Regs., tit. 22, § 1256-36, subd. (b)(2).

103       Id.

104       Cal. Code Regs., tit. 22, § 1256-36, subd. (b)(3); Benefit Determination Guide at Misconduct 255, subd. (B).

105       Cal. Code Regs., tit. 22, § 1256-36 (Comments).

106       Id.

107       Cal. Code Regs., tit. 22, § 1256-36, subd. (b)(4).

108       Silva v. Nelson (1973) 31 Cal.App.3d 136.

109       P-B-216.

110       Cal. Code Regs., tit. 22, § 1256-31, subd. (b).

111       Cal. Code Regs., tit. 22, § 1256-31, subd. (c).  112                      Cal. Code Regs., tit. 22, § 1256-31, subd. (c)(1). 113                 Cal. Code Regs., tit. 22, § 1256-31, subd. (c)(2).

114       Cal. Code Regs., tit. 22, § 1256-40, subd. (c)(1). See also Drysdale v. Dept. of Human Resources Development

(1978) 77 Cal.App.3d 345 [142 Cal.Rptr. 495].

115       Cal. Code Regs., tit. 22, § 1256-40, subd. (c)(2).

116       Cal. Code Regs., tit. 22, § 1256-40, subd. (c)(3).

117       Cal. Code Regs., tit. 22, § 1256-40, subd. (d).

118       Cal. Code Regs., tit. 22, § 1256-34, subd. (b); P-B-10 (witness committed misconduct when he did not report a theft and did not cooperate in the investigation).

119       Cal. Code Regs., tit. 22, § 1256-34, subd. (b).

120       Benefit Determination Guide at Misconduct 140, subd. (A) (interpreting Cal. Code Regs., tit. 22, § 1256-34, subd. (b), as permitting the condonation defense when the employer has knowledge of the specific dishonest acts and fails to reprimand).

121       Cal. Code Regs., tit. 22, § 1256-34, subds. (c), (d).

122       Cal. Code Regs., tit. 22, § 1256-39, subd. (c)(3).

123       P-B-57 (holding former airline employee who had his employer’s miniature bottles of liquor in his car committed misconduct, where his only explanation was that an unknown third party must have put the bottles there). See also Benefit Determination Guide at Misconduct 140, subd. (E).

124       Jackson v. EDD (1981) 80-4418 (mail carrier committed misconduct for discarding mail, even though he was acquitted of federal criminal charges); P-B-57.

125       Delgado v. Unemployment Insurance Appeals Bd. (1974) 41 Cal.App.3d 788 [116 Cal.Rptr. 497] (holding cashier did not commit misconduct when she failed to ring up three sales at the time of the sale in order to prevent customers from waiting, especially because her supervisor condoned this practice and she was never warned not to do it).

126       Buchwell v. EDD (1980) 79-6313 (claimant discharged for misconduct where he falsified his job application by claiming that he left his previous job because his father died, when, in fact, he had been fired from that job for insubordination).

127       Cal. Code Regs., tit. 22, § 1256-34, subd. (e)(5); P-B-241 (claimant who checked “no” when asked whether he had ever been arrested did not commit misconduct because Cal. Lab. Code § 432.7 prohibits most employers from asking about arrests that did not result in convictions on the initial employment application form.  But the employer can ask about arrests in the employment process following receipt of the initial application form). See also P-B-77 (decided prior to enactment of Cal. Lab. Code § 432.7); P-B-78. See also the provisions on medical examinations and inquiries, the Americans with Disabilities Act, 42 U.S.C. § 12112 subd. (d); Fair Employment and Housing Act, Gov. Code, § 12940, subd. (e).

128       P-B-77 (concurring opinion); Benefit Determination Guide at Misconduct 140, subd. (I).

129       P-B-184 (rejecting employer’s argument that claimant must have misrepresented his past work experience because he failed to perform satisfactorily); Benefit Determination Guide at Misconduct 140, subd. (I).

130       Cal. Code Regs., tit. 22, § 1256-38, subd. (b)(3); Benefit Determination Guide at Misconduct 390, subd. (B).

131       Cal. Code Regs., tit. 22, § 1256-39, subd. (b); P-B-192 (not misconduct where claimant was discharged because two co-workers, who did not get along with him, said that they would quit if he were not fired).

132       Cal. Code Regs., tit. 22, § 1256-39, subd. (c)(1).

133       Id.; P-B-167 (taxi driver did not commit misconduct because he did not provoke the fight with a co-worker and he hit the co-worker only in self-defense).

134       Morris v. Unemployment Insurance Appeals Bd. (1973) 34 Cal.App.3d 1002 [110 Cal.Rptr. 630].

135       Benefit Determination Guide at Misconduct 390, subd. (A)(2) (a claimant did not commit misconduct by saying, “If you go on talking, this hammer will go to your head” because his co-worker considered the remark a joke).

136       P-B-185 (sleeping on the job is not misconduct where claimant, who was recently switched to the night shift, dozed momentarily on one occasion while seated upright at his work station with a pencil still in his hand).

137 Benefit Determination Guide at Misconduct 310, subd. (B) (noting that good excuses for falling asleep on duty include tiredness because the employer asked the employee to work overtime and taking medication that the employee did not know would make her drowsy).

138       Cal. Code Regs., tit. 22, § 1256-37, subd. (b)(1), (3); P-B-221 (hotel bellman committed misconduct when he drank alcohol with guests on one occasion, even though he did not know of employer’s rule).

139       Cal. Code Regs., tit. 22, § 1256-37, subd. (c); Benefit Determination Guide at Misconduct 270, subd. (A)(3).

140       Such claimants are ineligible under Unemp. Ins. Code, § 1256.4, subd. (a), rather than being ineligible because they committed misconduct under § 1256. See Jacobs v. CUIAB (1972) 25 Cal.App.3d 1035 [102 Cal.Rptr. 364] (holding that if an alcoholic has an irrestible compulsion to drink, his actions are not willful as § 1256 requires).

141 Unemp. Ins. Code, § 1256.4, subd. (b); P-B-465. 142    Cal. Code Regs., tit. 22, § 1256-37, subd. (b)(2). 143        Cal. Code Regs., tit. 22, § 1256-37, subd. (b)(4).

144       P-B-191 (janitor discharged for off-duty drunken driving arrest not fired for misconduct).

145       AFL-CIO v. Unemployment Insurance Appeals Bd. (1994) 23 Cal.App.4th 51 [28 Cal.Rptr.2d 210] (refusing to take a drug test is misconduct because job on an offshore oil drilling platform was hazardous); Benefit Determination Guide at Misconduct 270, subd. (A)(5) (reporting to work with an obvious hangover – bloodshot eyes, wrinkled clothes and the smell of alcohol on one’s breath – is misconduct).

146       See AFL-CIO v. Unemployment Insurance Appeals Bd. (1994) 23 Cal.App.4th 51; P-B-454; P-B-470 (all addressing when an employee’s refusal to take a drug test is misconduct).

147       P-B-217 (off-duty possession of narcotics is misconduct for a pharmacist).

148       P-B-27. See also Cal. Code Regs., tit. 22, § 1256-3, subd. (b).

149       Cal. Portland Cement Co. v. CUIAB (1960) 178 Cal.App.2d 263 [3 Cal.Rptr. 37].

150       Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(5); P-B-237; P-B-246. See also “Caring for Family Members” below.

151       Cal. Code Regs., tit. 22, §§ 1256-13, subd. (c), 1256-15, subds. (b) & (c). See also “Unsafe Working Conditions” below.

152       Rabago v. Unemployment Insurance Appeals Bd. (1978) 84 Cal.App.3d 200 [148 Cal.Rptr. 499].

153       P-B-8.

154       Cal. Code Regs., tit. 22, § 1256-3, subd. (b). For example, if a claimant says she quit to move for her husband to a place that would be too far to commute for her job, but then she actually made the commute for months before quitting, she might be disbelieved, unless she can argue that she was trying the commute out as part of his reasonable efforts to keep her job.

155       Cal. Code Regs., tit. 22, § 1256-3, subd. (c); P-B-8.

156       Id.

157         P-B-457.

158       Cal. Code Regs., tit. 22, § 1256-16, subds. (c), (d); P-B-247; P-B-258; P-B-287; Benefit Determination Guide at Voluntary Quit 285, subd. (C).

159       Cal. Code Regs., tit. 22, § 1256-16, subd. (d); P-B-246 (holding that employer was obligated to offer leave to employee, even though she did not explicitly request it, because it knew of her situation and she did not know about its leave of absence policy). See also P-B-94; P-B-248; P-B-256.

160       P-B-44 (job offer was not a transfer because claimant would have to change employers, and therefore, the claimant did not have to accept the offer in order to avoid negating good cause); P-B-232.

161       P-B-232.

162       Lewis v. Unemployment Insurance Appeals Bd. (1976) 56 Cal.App.3d 729 [128 Cal.Rptr. 795]. See also Cal. Code Regs., tit. 22, § 1256-16, subd. (b); P-B-145.

163       Cal. Code Regs., tit. 22, § 1256-15, subd. (b).

164       P-B-238.

165       Perales v. Dept. of Human Resources Development (1973) 32 Cal.App.3d 332 [108 Cal.Rptr. 167]. Unemp. Ins. Code, § 1256; see also Zorrero v. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434; Cal. Portland Cement Co. v. CUIAB (1960) 178 Cal.App.2d 263 [3 Cal.Rptr. 37].

166       Unemp. Ins. Code, § 1256.

167       Id. Family Code § 297 defines domestic partners as same-sex partners, both of whom are at least age 18, or opposite-sex partners if one person is at least 62 years old, and requires that they register with the state. See also Benefit Determination Guide at Voluntary Quit 155, subd. (D)(5).

168       Unemp. Ins. Code, § 1256.

169       Id.; P-B-236 (typist who quit her Palo Alto job to move with her husband to Hayward did not have good cause because distance, travel time and cost did not make it unreasonable for her to commute); P-B-334 (maintaining family unity was good cause for wife who quit to move with her husband to Wisconsin).

170       P-B-232; P-B-287.

171       Unemp. Ins. Code, § 1032, subd. (c). An employer has to provide information to EDD within 10 days of receiving notice that a claim has been filed, as required by Unemp. Ins. Code, § 1030, in order to avoid having its reserve account subject to charges.

172       Norman v. Unemployment Insurance Appeals Bd. (1983) 34 Cal.3d. 1 [192 Cal.Rptr. 134].

173       MacGregor v. Unemployment Insurance Appeals Bd. (1984) 37 Cal.3d. 205 [207 Cal.Rptr. 823].

174       Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(5); P-B-237 (good cause where claimant moved out-of-state so that parents could care for his minor children); P-B-246 (mother who quit to care for her child had no reasonable alternatives because nursery would not watch the child who had been exposed to measles, mother was denied a transfer to the night shift and employer did not offer her a leave of absence).

175       Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(1); P-B-202 (quitting to prepare dinner for spouse, who was not ill, is not good cause); P-B-209 (desire to be with family on Sunday was a personal preference, rather than good cause); P-B-239 (caring for seriously ill husband is good cause). See also Cal. Code Regs., tit. 22, § 1256- 9, subd. (c) (defining “family”); Benefit Determination Guide at Voluntary Quit 155, subd. D(5) (“a registered domestic partner is considered equal to a spouse”).

176       Cal. Code Regs., tit. 22, § 1256-10 (Comments); P-B-299 (resigning to move near ill mother is not good cause because claimant was not needed to provide care).

177       Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(1); P-B-238 (quitting to visit mother who had suffered a potentially fatal heart attack is good cause).

178       P-B-238.

179       Unemp. Ins. Code, § 1256; Benefit Determination Guide at Voluntary Quit 155, subd. (D)(6).

180       Benefit Determination Guide at Voluntary Quit 155, subd. (D)(6).

181       Id.

182       Unemp. Ins. Code, § 1032, subd. (d). An employer has to provide information to EDD within 10 days of receiving notice that a claim has been filed, as required in Unemp. Ins. Code, § 1030, in order to avoid having its reserve account subject to charges.

183       Cal. Code Regs., tit. 22, § 1256-15, subd. (d)(3); P-B-254 (pregnant claimant who did not consult a doctor before quitting did not have good cause). See also P-B-94 (claimant who could not perform her “strenuous duties” as a nurse’s aide as her pregnancy advanced had good cause to quit).

184       Cal. Code Regs., tit. 22, § 1256-15, subd. (d)(1).

185       Rabago v. Unemployment Insurance Appeals Bd. (1978) 84 Cal.App.3d 200.

186       P-B-144.

187       P-B-263 (claimant under doctor’s care who suffered from colds and nervousness because of work conditions had good cause). See also P-B-117 (claimant who quit to move away from smoggy area did not have good cause because he was not following a doctor’s advice and his symptoms, if any, were minor); P-B-251 (claimant did not have good cause because he declined to provide medical evidence of wife’s condition); Benefit Determination Guide at Voluntary Quit 235, subd. (B).

188       P-B-276 (even though he did not consult a doctor, ship cook with severe cold and pleurisy pains had good cause because of his prior medical history).

189       Cal. Code Regs., tit. 22, § 1256-15, subds. (b), (d)(1).

190       Cal. Code Regs., tit. 22, § 1256-15, subd. (b).

191       P-B-78 (claimant who accepted a job knowing that it required lifting but did not tell employer about his back problems negated his good cause to quit when the job aggravated his back problems).

192       Cal. Code Regs., tit. 22, §§  1256-13, subd. (c); 1256-15, subds. (b), (c).

193       Id.; P-B-298 (truck driver had good cause to quit when he had a minor accident caused by a defective emergency brake, which the employer had still not repaired a month after the driver first complained).

194       Cal. Code Regs., tit. 22, § 1256-15, subd. (b).

195         Id.

196       P-B-126. See also Cal. Code Regs., tit. 22, § 1256-23, subd. (b).

197       P-B-300. See also P-B-139 (conditions were intolerable where supervisor put his hands on employee, cursed and shoved her, and made prying inquiries into her personal life).

198       Cal. Code Regs., tit. 22, § 1256-23, subd. (b).

199       Unemp. Ins. Code, § 1256.2 (discrimination based on race, color, religious creed, sex, national origin, ancestry and physical disability); Unemp. Ins. Code, § 1256.7 (sexual harassment); Cal. Code Regs., tit. 22, § 1256.2-1 (discrimination based on age (40 or older), mental disability, medical condition, marital status or any other unlawful basis).

200       See Prescod v. Unemployment Insurance Appeals Bd. (1976) 57 Cal.App.3d 29 [127 Cal.Rptr. 540] (sex discrimination); Morrison v. Unemployment Insurance Appeals Bd. (1976) 65 Cal.App.3d 245 [134 Cal.Rptr. 916].

201       Unemp. Ins. Code, § 1256.2, subd. (b); Cal. Code Regs., tit. 22, § 1256.2-1, subd. (e) (when the violation is unintentional, the employee must notify the employer and give the employer a chance to take action, but is

not required to file a formal complaint or charge with a state or federal agency to meet the reasonable efforts condition).

202       Cal. Code Regs., tit. 22, § 1256.2-1, subd. (e).

203       Unemp. Ins. Code, § 1256.7; P-B-475 (claimant sexually harassed by a co-worker had good cause).

204       Cal. Code Regs., tit. 22, § 1256-23, subd. (c). See also Benefit Determination Guide at Voluntary Quit 440, subd. (B)(2).

205       P-B-295.

206       Cal. Code Regs., tit. 22, § 1256-23, subd. (c)(8).

207       Cal. Code Regs., tit. 22, § 1256-23, subd. (c)(1).

208       Cal. Code Regs., tit. 22, § 1256-23, subd. (c)(3), (6).

209       P-B-307.

210       Cal. Code Regs., tit. 22, § 1256-23, subd. (c)(4).

211       Cal. Code Regs., tit. 22, § 1256-23, subd. (b).

212       Cal. Code Regs., tit. 22, § 1256-15, subd. (e).

213       Cal. Code Regs., tit. 22, §§  1256-6, subd. (b)(3), 1256-15, subd. (e).

214 Cal. Code Regs., tit. 22, §§ 1256-22, subd. (b)(4), (5), 1256-23, subd. (c); P-B-296 (employee had good cause to quit when employer materially altered the employment agreement by eliminating his expected overtime and increasing his room and board rates).

215       Cal. Code Regs., tit. 22, § 1256-14, subd. (b).

216       Cal. Code Regs., tit. 22, § 1256-22, subd. (c)(3) (no good cause if employee quits because employer demanded “reasonable periodic deductions” from wages for cash shortages or equipment damage caused by the worker’s “culpable negligence or willful dishonesty”); P-B-457 (driver had good cause to quit because the employer deducted from his wages losses over which he had no control, including a citation for an overweight truck). See also Cal. Code Regs., tit. 22, § 1256-7, subd. (d)(8).

217       Cal. Code Regs., tit. 22, §§ 1256-22, subd. (b)(1), (2); Benefit Determination Guide at Voluntary Quit 500, subd. (A)(7).

218         Benefit Determination Guide at Voluntary Quit 500, subd. (A)(7).

219       P-B-8; P-B-457.

220       P-B-124. See also Cal. Code Regs., tit. 22, § 1256-22 (Comments); Bunny’s Waffle Shop v. Cal. Employment Com. (1944) 24 Cal.2d 735 [151 P.2d 224].

221       P-B-88 (claimant quit without good cause when he accepted layoff over job downgrade with 11.2 percent pay reduction); P-B-127. See also P-B-286 (claimant left work without good cause when he refused to accept a transfer from skilled to unskilled work paying 13 percent less); P-B-291 (claimants offered a layoff or a job downgrade with an 11.2 percent pay reduction had good cause to take layoff because they would lose their seniority and recall rights, and they believed work was available elsewhere). Note: An amendment to Unemp. Ins. Code §, 1256 has eliminated the need for balancing these factors in cases for unionized workers, such as P-B-286 and P-B-291 – and overruled the result in P-B-286).

222       Id.

223       Id.

224       Id.

225       Unemp. Ins. Code, § 1256.

226       P-B-242 (no good cause because a two-hour, 30-minute round-trip commute was customary for the Los Angeles area); P-B-245 (good cause where claimant, already exhausted by 12-hour workdays, had to drive two hours each way); P-B-303 (no good cause because commuting between Oakland and San Francisco is customary).

227       P-B-232 (good cause where claimant declined a transfer that meant a three-hour round-trip commute and an increase in her child-care costs).

228       P-B-25 (claimant did not have good cause to quit when she lost her ride to work because she could have repaired her car or searched more thoroughly for a car pool); P-B-233 (good cause where claimant who lost her ride to work had to ride bus for 1.5 hours round trip and walk 11 blocks home at 2 a.m.).

229       Cal. Code Regs., tit. 22, § 1256-19, subd. (c)(1); P-B-277 (good cause where claimant resigned only after she was given her start date for her new job, but then that job fell through because the bookkeeper she was replacing did not retire as planned).

230       Cal. Code Regs., tit. 22, § 1256-19, subd. (c).  231                      Cal. Code Regs., tit. 22, § 1256-19, subd. (c)(3). 232                 Cal. Code Regs., tit. 22, § 1256-19, subd. (c)(2). 233         Cal. Code Regs., tit. 22, § 1256-19, subd. (c)(1). 234            P-B-123.

235       Cal. Code Regs., tit. 22, § 1256-6, subd. (b)(2).

236       Cal. Code Regs., tit. 22, § 1256-6, subd. (b)(4).

237       Cal. Code Regs., tit. 22, § 1256-6, subd. (b)(5) (for example, good cause to quit would exist if a claimant who objects to war started working for an employer not engaged in any war-related activity, but that employer later decided to make bombs and assigned the claimant to the bomb project).

238       Cal. Code Regs., tit. 22, § 1256-6, subd. (b)(1).

239       Cal. Code Regs., tit. 22, §§ 1256-6, subd. (b)(3), 1256-15, subd. (e).

240       P-B-126 (claimant who quit because he believed that he was not subordinate to plant foreman and should  not have to follow his instructions did not have good cause); P-B-138 (claimant who quit because he resented being supervised by a younger man did not have good cause); P-B-297 (claimant who quit because a co- worker was shirking her duties did not have good cause). See also Cal. Code Regs., tit. 22, § 1256-23, subd. (f).

241       Cal. Code Regs., tit. 22, § 1256-20, subd. (c)(2) (Comments); P-B-280 (claimant who quit because he wanted to work night shifts so that he could earn extra income during the day did not have good cause); P-B-301 (claimant whose hours were reduced from full time to part time did not have good cause).

242       Cal. Code Regs., tit. 22, § 1256-20; P-B-281 (good cause where claimant quit because she worked a split shift and had no reasonable place to rest during her three-hour break).

243       Cal. Code Regs., tit. 22, § 1256-20, subd. (c)(1) (Comments).

244       Cal. Code Regs., tit. 22, §§ 1256-18, subd. (f); 1256-19, subd. (b); P-B-366.

245       Id.

246       Cal. Code Regs., tit. 22, § 1256-14, subd. (c).

247       Cal. Code Regs., tit. 22, § 1256-14, subd. (b).

248       Cal. Code Regs., tit. 22, § 1256-23, subd. (c)(6).

249       Cal. Code Regs., tit. 22, § 1256-18, subd. (f); P-B-270.

250 Cal. Code Regs., tit. 22, § 1256-18, subd. (f); P-B-271 (welder had good cause to quit to accept a job doing crop-dusting as an independent contractor because he was going to be laid off soon and his union had no other work for him).

251       Cal. Code Regs., tit. 22, § 1256-5, subd. (b); Perales v. Dept. of Human Resources Development (1973) 32 Cal.App.3d 332 (no good cause where claimant quit to attend English classes a few days before he would have finished pruning peach trees).

252       Cal. Code Regs., tit. 22, § 1256-5, subd. (c)(1).

253       Cal. Code Regs., tit. 22, § 1256, subd. (c)(3).

254       Unemp. Ins. Code, § 1267; Cal. Code Regs., tit. 22, §§ 1256-4, 1256-5, subd. (c)(2); Benefit Determination Guide at Voluntary Quit 40, subd. (B).

255       Cal. Code Regs., tit. 22, § 1256-1, subd. (d)(1); P-B-228.

256       Eradonna Sanchez v. Unemployment Insurance Appeals Bd. (1984) 36 Cal.3d 575 [205 Cal.Rptr. 501]; P-B-271.

257       Cal. Code Regs., tit. 22, § 1256-7; P-B-229 (no good cause where claimant quit to protest employer’s reprimand for being late in returning from his lunch break. Claimant was late because his car broke down, but he did not tell the employer about the breakdown).

258 Cal. Code Regs., tit. 22, § 1256-7, subd. (d)(1). 259  Cal. Code Regs., tit. 22, § 1256-7, subd. (d)(2). 260        Cal. Code Regs., tit. 22, § 1256-7, subd. (d)(9).

261       Cal. Code Regs., tit. 22, § 1256-7, subd. (d)(3), (7).

262       P-B-300.

263       In some cases, the CUIAB and courts refer to these types of discharges as “voluntary quits without good cause.” E.g. Evenson v. Unemployment Insurance Appeals Bd. (1976) 62 Cal.App.3d 1005 [133 Cal.Rptr. 488]; P-B-209; P-B-288. In other decisions, the CUIAB and courts have called these types of discharges “constructive quits” or merely asked whether the separation was the worker’s fault. E.g. Steinberg v. Unemployment Insurance Appeals Bd. (1978) 87 Cal.App.3d 582 [151 Cal.Rptr. 133]; P-B-423.

264       Cal. Code Regs., tit. 22, § 1256-1, subd. (f); Steinberg v. Unemployment Insurance Appeals Bd. (1973) 87 Cal.App.3d 582, 584 [151 Cal.Rptr. at p. 134]; Benefit Determination Guide at Voluntary Quit 135 subd. (G).

265       Unemp. Ins. Code, § 1256.1; Cal. Code Regs., tit. 22, § 1256-31, subd. (d)(1); P-B-45; P-B-50; P-B-289. See also

P-B-443 (defining “24 hours”).

266       Cal. Code Regs., tit. 22, § 1256-31, subd. (d)(1); P-B-261 (claimant, who was fired because he was absent after his arrest but who entered pleas of not guilty to charges of failing to pay child support and resisting arrest, is entitled to a presumption of innocence and, therefore, he did not constructively quit because he did not willfully commit a crime).

267       Cal. Code Regs., tit. 22, § 1256-31, subd. (d)(1)(B); Kaylor v. Dept. of Human Relations Development (1973) 32 Cal.App.3d 732 [108 Cal.Rptr. 267] (construing Unemp. Ins. Code, § 1256.1 as not applying to this type of incarceration to avoid a violation of the Equal Protection Clause).

268       Cal. Code Regs., tit. 22, § 1256-31, subd. (d)(2).

269       Benefit Determination Guide at Voluntary Quit 360, subd. (A)(3). See Unemp. Ins. Code, § 1256.1, subd. (b) (permitting the EDD to reconsider a determination during the Benefit Year if the initial determination was made before the final disposition of a court or before a guilty plea was entered and that determination was not appealed).

270       P-B-288.

271       P-B-423 (school bus driver who failed a certificate renewal test three times did not constructively quit because her inability to pass was because of emotional problems and not willful or deliberate).

272       Evenson v. Unemployment Insurance Appeals Bd. (1976) 62 Cal.App.3d 1005; P-B-290.

273       P-B-209.

274       Id.

275       P-B-471 (holding claimant could not reasonably have known that letting his personal car insurance lapse would jeopardize his job because, although his actions did lead to his driver’s license being suspended, he was still permitted to drive his employer’s truck at work and could not have known his employer’s insurance carrier would refuse to cover him).

276       P-B-211.

277       Lab. Code, § 2920, subd. (a); P-B-275.

278       Gaspar v. United Milk Producers (1944) 62 Cal.App.2d 546 [144 P.2d 867]; P-B-264.

279       Unemp. Ins. Code, § 1262. This rule, coupled with the rule that a claimant collecting UI benefits is not required to accept a position open due to a trade dispute, allows the state to remain neutral in trade disputes. Matson Terminals Inc. v. Cal. Employment Com. (1944) 24 Cal.2d 695, 707 [151 P.2d 202, 209].

280       P-B-24; P-B-399.

281       P-B-399.

282       Bodinson Manufacturing Co. v. Cal. Employment Com. (1941) 17 Cal.2d 321 [109 P.2d 935]

283       Bunny’s Waffle Shop v. Cal. Employment Com. (1944) 24 Cal.2d 735 (holding employees did not voluntarily leave when their employers cut their pay to try to force their union to negotiate collectively, rather than individually, with the employers).

284       McKinney v. Cal. Employment Stabilization Com. (1949) 34 Cal.2d 239 [209 P.2d 602]; P-B-24.

285       Bodinson Manufacturing Co. v. Cal. Employment Com. (1941) 17 Cal.2d 321.

286       P-B-112.

287       Hopkins v. Cal. Employment Com. (1944) 24 Cal.2d 744 [151 P.2d 229]; P-B-95.

288       Ruberoid Co. v. CUIAB (1963) 59 Cal.2d 73 [27 Cal.Rptr. 878].

289       P-B-95.

290       Windigo Mills v. Unemployment Insurance Appeals Bd. (1979) 92 Cal.App.3d 586 [155 Cal.Rptr. 63]; Isobe v. Unemployment Insurance Appeals Bd. (1974) 12 Cal.3d 584 [116 Cal.Rptr. 376].

291       P-B-401.

292       P-B-16.

293       Unemp. Ins. Code, § 1262.

294       P-B-89 (holding trade dispute ended after employer completed maintenance and had work available again, not when the strikers agreed to return to work).

295       Unemp. Ins. Code, § 1253, subd. (c); Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(1); P-B-173.

296 See P-B-197 (holding that simply because the EDD would not refer a noticeably pregnant woman to employers did not render her unable when her doctor advised that she could continue working as a clerk/typist in her seventh month of pregnancy).

297       Unemp. Ins. Code, § 1258; Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(1); P-B-173.

298       P-B-172 (typist/bookkeeper whose doctor restricted her to no more than five hours a work a day was able, even though she could not work full time).

299       P-B-131 (pregnant claimant was not able to work because doctor restricted her to sit-down jobs and she had experience only as a cafeteria worker or waitress).

300       Unemp. Ins. Code, § 1253.5.

301       P-B-409 (claimant whose doctor had restricted her to working only three days a week after her heart attacks was entitled to her full Weekly Benefit Amount, rather than only three-sevenths of the weekly amount).

302       Cal. Code Regs., tit. 22, § 2706-1.

303       Unemp. Ins. Code, § 1253, subd. (c).

304       Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (b); Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd.

(1977) 20 Cal.3d 55 [141 Cal.Rptr. 146].

305       Unemp. Ins. Code, § 1258; Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(1); P-B-173.

306       Unemp. Ins. Code, § 1258.5.

307       Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(4). Reasons that are good cause for voluntarily quitting are likely to be good cause for restricting a job search or refusing a job offer.

308       Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(3); Rios v. EDD (1986) 187 Cal.App.3d 489 [231 Cal.Rptr. 732] (although Texas employers preferred to hire local farmworkers, the claimants, who were migrant farmworkers, were still available to a substantial field of employment because the existence of more than a minimal number of agricultural employers, not actual job vacancies, is all that is required); P-B-180 (remanding to consider potential employers in the relevant area and claimant’s experience and flexibility with respect to other work and pay rate to determine whether a substantial field of employment remained open to the claimant). See also Glick v. Unemployment Insurance Appeals Bd. (1979) 23 Cal.3d 493 [153 Cal.Rptr. 1].

309       Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(2).

310       Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd. (1970) 20 Cal.3d 55; Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (d).

311       Id.

312       Benefit Determination Guide at Able and Available 5, subd. (F).

313       Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (e); Gutierrez v. EDD (1993) 14 Cal.App.4th 1791 [18 Cal.Rptr.2d 705] (claimant disqualified as unavailable under Unemp. Ins. Code, § 1253(c) because she did not currently have INS work authorization, even though she was legally permitted to work at the time she earned wages for her Base Period).

314       Alonso v. California (1975) 50 Cal.App.3d 242 [123 Cal.Rptr. 536] (claimant who provided his alien registration number but refused to provide documentary evidence was held unavailable).

315       P-B-464 (Claimant was available in the weeks before Aug. 6, 1988, the date he received his INS work authorization, because, if he had been offered a job before Aug. 6, 1988, he was eligible for work authorization and could have obtained it in the three days specified under the procedures for the employer’s I-9 form).

316       Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (b).

317       Unemp. Ins. Code, § 1253.8; Benefit Determination Guide at Able and Available 5, subd. (C). See also Glick v. Unemployment Insurance Appeals Bd. (1979) 23 Cal.3d 493 [153 Cal.Rptr. 1].

318       Precedent Benefit Decision No. P-B-409; Precedent Benefit Decision P-B-172.

319       Unemp. Ins. Code, §§ 1253.8, 1253.9. See also Glick v. Unemployment Insurance Appeals Bd. (1979) 23 Cal.3d 493.

320       Unemp. Ins. Code, § 1267.

321       Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd. (1970) 20 Cal.3d 55.

322       P-B-484.

323       Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd. (1970) 20 Cal.3d 55 (holding claimant, who could not work weekends because she needed to care for her child, was still available to a substantial field of weekday factory or restaurant work).

324       P-B-175 (claimant was “available,” even on the day he spent traveling from Washington state to San Francisco because a former employer had told him he might have a job for him if he came to San Francisco).

325       UAW v. Dept. of Human Resources Development (1976) 58 Cal.App.3d 924 [130 Cal.Rptr. 368] (temporarily laid off claimants who went on personal vacations were not available because, although they had received a firm recall date from their union, they did not provide the union with a way to contact them if work became available earlier); P-B-260 (claimant who left the state to visit a bereaved aunt remained available because he was far down on his union’s hiring list, and he notified the union of his whereabouts and could be back in a day if referred to work).

326       P-B-303 (commute was between Oakland and San Francisco).

327       Benefit Determination Guide at Suitable Work 150, subd. (E).

328       P-B-199.

329       P-B-206 and P-B-180.

330       P-B-199.

331       P-B-179.

332       P-B-199.

333 People v. Nest (1942) 53 Cal.App.2d Supp. 856 [128 P.2d 444] (claimant who ran a clothing business was available because he continued to search for work and his presence at the store was not necessary if he found work).

334       Unemp. Ins. Code, § 1253.1.

335       Loew’s Inc. v. Cal. Employment Stabilization Com. (1946) 76 Cal.App.2d 231 [172 P.2d. 938].

336       Benefit Determination Guide at Able and Available 195, subd. (C)(4).

337       Cal. Code Regs., tit. 22, §  1253(c)-1, subd. (c)(4).

338       P-B-173 (claimant who limited herself to work as an “executive secretary,” at which she had 15 years of experience and which paid higher salaries than regular secretaries, was available).

339       Benefit Determination Guide at Able and Available 195, subd. (C)(4).

340       Unemp. Ins. Code, § 1258.

341       Unemp. Ins. Code, § 1259, subd. (b); Benefit Determination Guide at Suitable Work 500, subd. (A).

342       Benefit Determination Guide at Suitable Work 500, subd. (A)(1).

343       Id. (relying on Unemp. Ins. Code, § 1258); P-B-320.

344       Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (d); Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd.

(1970) 20 Cal.3d 55.

345       Unemp. Ins. Code, § 1257, subd. (b).

346       P-B-490.

347       P-B-310.

348       Unemp. Ins. Code, § 1259.

349       Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(4).

350       P-B-490.

351       Unemp. Ins. Code, § 1253, subd. (c).

352       Unemp. Ins. Code, § 1257, subd. (b).

353       See Cal. Code Regs., tit. 22, §§ 1256-18, subd. (f); 1256-19, subd. (b). These regulations do not address the situation of leaving a temporary job to seek a permanent job, but they do provide that leaving work to look for another job is not good cause, unless the person quit part-time work to seek full-time work because the part-time job hindered an effective search.

354       Unemp. Ins. Code, § 1253, subd. (e); Cal. Code Regs., tit. 22, § 1253(e)-1.

355       Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (a).

356       See P-B-196 (occasional contacts with friends about openings was not an active search); P-B-235 (applying for work at two employers over almost five weeks would not be an active search; applying for jobs at 13 employers over about six weeks is an active search).

357       Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (d)(1).

358       Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (d)(2).

359       Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (d)(5).

360       Unemp. Ins. Code, § 1252, subd. (a)(1).

361       Unemp. Ins. Code, § 1252, subd. (a)(4).

362       Unemp. Ins. Code, § 1252, subd. (a)(2).

363       Benefit Determination Guide at Total Partial Unemployment 5, subd. (B)(2).

364       Unemp. Ins. Code, § 1252, subd. (a)(2).

365       Title 22, Cal. Code Regs., tit. 22, § 1326-1, subd. (b)(1)(A)

366       Unemp. Ins. Code, § 1260, subd. (a).

367       Unemp. Ins. Code, §§ 1257, subd. (a), 1260, subd. (c).

368       Unemp. Ins. Code, § 1326.

369       Unemp. Ins. Code, § 1276.  Cal. Code Regs., tit. 22, §§ 1253-1, 1253-2.

370       See Cal. Code Regs., tit. 22, § 1326-10, subd. (a).

371       PB-491.

372       Id.

373       See Cal. Unemp. Ins. Code §§ 451, 453.

374       See Cal. Unemp. Ins. Code, §§ 455, 455.5.

375       See Unemp. Ins. Code, §§ 452.

376       O’Brien, David W. California Unemployment Insurance and Disability Compensation Programs, 10 ed. Calabasas:  MMVI FS&K Publishing Inc., 2006: 569.

377       “You must actively seek work and should register for Job Search assistance with the local employment office in your state.” (from “Unemployment Insurance Application” page of the EDD’s website, http://www.edd.ca.gov/uirep/uiapp.htm).

378       State X uses its own requirements to determine whether a claimant is available for work and then reports its findings to the EDD, which determines eligibility.

379       O’Brien, David W. California Unemployment Insurance and Disability Compensation Programs, 10 ed. Calabasas:  MMVI FS&K Publishing Inc., 2006: 569.

380       “A Guide To Benefits and Employment Services,” page 23 at http://www.edd.ca.gov/uirep/de1275a.pdf.

381       See “A Guide To Benefits and Employment Services,” at http://www.edd.ca.gov/uirep/de1275a.pdf.

382       Unemp. Ins. Code, § 1327.

383       Unemp. Ins. Code, § 1327.

384       Id.

385       Unemp. Ins. Code, § 1256.

386       Maitland v. E.D.D. (1982), 130 Cal.App.3d [181 Cal.Rptr. 587].

387       Cal. Code Regs., tit. 22, § 1326-6, subd. (b).

388       Cal. Code Regs., tit. 22, § 1326-6, subd. (c).

389       Cal. Code Regs., tit. 22, § 1326-6, subd. (e) (referring to Cal. Code Regs., tit. 22, § 1326-10 for an explanation of good cause).

390       P-B-448.

391       Cal. Code Regs., tit. 22, § 1326-6, subd. (e) (referring to Cal. Code Regs., tit. 22, § 1326-10 for an explanation of good cause).

392       Unemp. Ins. Code, § 1253, subd. (b).

393       Unemp. Ins. Code, § 1253, subd. (f).

394       Unemp. Ins. Code, § 1253, subd. (f).

395       Unemp. Ins. Code, § 1253, subd. (e).

396       Cal. Code Regs., tit. 22, § 1326-3, subd. (a).

397       Cal. Code Regs., tit. 22, § 1326-3, subd. (b).

398       Cal. Code Regs., tit. 22, § 1326-3, subd. (c).

399       Cal. Code Regs., tit. 22, § 1326-3, subd. (d).

400       Cal. Code Regs., tit. 22, § 1326-3, subd. (e).

401       Cal. Code Regs., tit. 22, § 1326-2, subd. (b)(2)(A).

402       Cal. Code Regs., tit. 22, § 1326-13(a) citing to § 121 of the Immigration Reform and Control Act of 1986, 42 USC 1320(b)-7(d).

403       Solway v. EDD, a 1978 Superior Court case, in which the EDD entered into a stipulation agreeing to follow this practice.  See also Benefit Determination Guide at Miscellaneous 30.

404       Id.

405       Unemp. Ins. Code, § 1252(a).

406       Cal. Code Regs., tit. 22, § 1326-4.

407       Unemp. Ins. Code, § 1277.

408       Unemp. Ins. Code, § 1277; Benefit Determination Guide at Miscellaneous 15, subd. (D).

409       Unemp. Ins. Code, § 1277.

410       Unemp. Ins. Code, § 1277.

411       Id.; Benefit Determination Guide at Miscellaneous 15, subd. (D).

412       Unemp. Ins. Code, § 1277, subd. (a).

413       Cal. Code Regs., tit. 22, § 1277-2; P-B-156.

414       Molnar v. Unemployment Insurance Appeals Bd., 57 Cal.App.4th 1448 [67 Cal.Rptr.2d 771] (receiving salary continuance pay does not satisfy the requirement of performing a service).

415       Cal. Code Regs., tit. 22, § 1277-2, subd. (b).

416       Unemp. Ins. Code, § 1277, subd. (b).

417       Unemp. Ins. Code, § 1277.5.

418       Unemp. Ins. Code § 1277.5 seems to permit doubling, regardless of whether the claimant was paid unemployment benefits. However, the Benefit Determination Guide at Miscellaneous 15, subd. (D)(3) permits doubling of the amount of wage-loss benefits received through the state disability insurance program or workers’ compensation, only if the claimant was paid benefits on the first unemployment claim.

419       Unemp. Ins. Code, § 1330.

420       Id.

421       Id.

422       Unemp. Ins. Code, §§ 1328, 1330.

423       A claimant will sometimes receive a “Notice of Determination” rather than a “Notice of Determination/Ruling.” If the last employer previously submitted a timely response to the “Notice of UI Claim Filed,” the EDD’s eligibility determination for the claimant is also a determination regarding whether the last employer’s reserve account will be charged. In such cases, the Notice is a “Determination/Ruling” and sent to both parties. If the last employer fails to respond to notice of the claim filed, the last employer loses party status, does not receive notice of the determination, and the claimant receives a “Notice of Determination.”

424       Cal. Code Regs., tit. 22, § 1326-13; Unemp. Ins. Code, § 1253 subd. (a).

425       Unemp. Ins. Code, § 1256.

426       Unemp. Ins. Code, § 1260, subd. (a).

427       Cal. Code Regs., tit. 22, § 1260, subds. (a)-1(b).

428       Unemp. Ins. Code, § 1253, subd. (c).

429       Cal. Code Regs., tit. 22, § 1253, subd. (c)-2.

430       Unemp. Ins. Code, § 1257, subd. (b).

431       Unemp. Ins. Code, § 1260, subd. (b).

432       Unemp. Ins. Code, § 1253, subd. (e); Cal. Code Regs., tit. 22, § 1253, subd. (e)-1.

433       See Benefit Determination Guide at Miscellaneous 35, subd. (B)(6). “Not applying ESW disqualifications retroactively is a policy of the Department; there is no statutory authority covering the procedure.”

434       Unemp. Ins. Code, § 1253, subd. (b).

435       Unemp. Ins. Code, § 1253, subd. (f).

436       Benefit Determination Guide at Miscellaneous 100, subd. (A)(1).

437       Unemp. Ins. Code, § 1257, subd. (a).

438       P-B-72; P-B-369.

439       Id.

440       P-B-224.

441       P-B-474.

442       Id. (Spanish speaker, knowing he was required to report his inability to work, hired an English speaker to fill out his Continued Claim Forms but did not tell his agent he was injured and unable to work). But see P-B-418 (non-English-speaking carpenter who asked a co-worker to fill out his Continued Claim Form did not know his responses on the form were false when his co-worker, whom he had told about his earnings, failed to properly report those earnings). Note: The Continued Claim Form is now available in Spanish.

443       P-B-224 (claimant did not make a false statement when she told the EDD and honestly believed that she was fired for refusing to work Saturdays, but the employer told the EDD she was fired for poor work performance).

444       See P-B-436 (a claimant has an obligation to ensure information provided to the EDD is accurate and, therefore, made a false statement when she collected duplicate benefits because she did not remember receiving and cashing her first benefit check).

445       P-B-347 at 4 (finding “inherently improbable” a claimant’s story of forgetting her earnings because she was worried over financial matters).

446       Unemp. Ins. Code, § 1257, subd. (a).

447       Unemp. Ins. Code, § 1260, subd. (c).

448       Unemp. Ins. Code, § 1260, subd. (d).

449       P-B-369; Benefit Determination Guide at Miscellaneous 45, subd. (A).

450       Unemp. Ins. Code, § 2101 et seq.; Penal Code, § 470.

451       Unemp. Ins. Code, § 1263.

452       Unemp. Ins. Code, § 1260, subd. (c), (d).

453       Unemp. Ins. Code, § 1260, subd. (c), (d).

454       Unemp. Ins. Code, § 1375.

455       Unemp. Ins. Code, § 1375.1

456       Unemp. Ins. Code, § 1382.

457       Id.

458       Id.

459       Unemp. Ins. Code, § 1375; Cal. Code Regs., tit. 22, § 1375-1, subd. (a).

460       P-B-347; P-B-369.

461       Cal. Code Regs., tit. 22, § 1375-1, subd. (c).

462       P-B-368.

463       Cal. Code Regs., tit. 22, § 1375-1(d); Gilles v. Dept. of Human Resources, (1974) 11 Cal. 3d 313, 323 [113 Cal.Rptr. 374].

464       P-B-377.

465       See Unemp. Ins. Code, § 1255 (not permitting the collection of unemployment benefits from more than one state at the same time).

466       P-B-368.

467       Cal. Code Regs., tit. 22, § 1375-1, subd. (d)(2).

468       Id.

469       Id.

470       E.g. Gibson v. Unemployment Insurance Appeals Bd., 9 Cal. 3d 494, 499 [108 Cal.Rptr. 1, 4]; Flores v. Unemployment Insurance Appeals Bd. (1973) 30 Cal.App.3d 681, 684 [106 Cal.Rptr. 543, 546].

471       Unemp. Ins. Code, § 100.

472       P-B-392.

473       Id.

474       P-B-377.

475       P-B-392.

476       Cal. Code Regs., tit. 22, § 1375-1, subd. (e).

477       Id.

478       Unemp. Ins. Code, § 1376; Cal. Code Regs., tit. 22, § 1375-1, subd. (g).

479       Unemp. Ins. Code, § 1376.

480       Unemp. Ins. Code, § 1377.

481       Id.

482       Cal. Code Regs., tit. 22, § 1375-1, subd. (f).

483       Id.

484       Unemp. Ins. Code, § 1379, subd. (d).

485       Unemp. Ins. Code, § 1379, subd. (a), (b).

486       Gov. Code, § 12419..5

487       Cal. Code Regs., tit. 22, § 5008, subd. (a) (refering to the definition of “filing” in Cal. Code Regs., tit. 22, § 5000, subd. (gg)).

488       Cal. Code Regs., tit. 22, § 5008.

489       Cal. Code Regs., tit. 22, § 5063.

490       Cal. Code Regs., tit. 22, § 5008.

491       Unemp. Ins. Code, § 1328.

492       Unemp. Ins. Code, § 1377.

493       P-B-354.

494       Cal. Code Regs., tit. 22, § 5004.

495       Cal. Code Regs., tit. 22, § 5051.

496       Unemp. Ins. Code, §§ 1328 (benefit denials), 1377 (overpayments).

497       P-B-347 (good cause for filing an appeal almost a month late).

498       P-B-348, P-B-420.

499       Id.

500       Flores v. Unemployment Insurance Appeals Bd. (1973) 30 Cal.App.3d 681 [106 Cal.Rptr. 543]; Gibson v. Unemployment Insurance Appeals Bd. (1973) 9 Cal.3d 494 [108 Cal.Rptr. 1]. See also P-B-348 (good cause for filing 17 days late because the claimant made an honest and good-faith mistake in believing, based on her reading of the Notice of Determination, that she had to earn $410 before she could appeal).

501       Amaro v. Unemployment Insurance Appeals Bd. (1977), 65 Cal.App.3d 715 [135 Cal.Rptr. 493]. See also Martinez v. Unemployment Insurance Appeals Bd. (1976) 63 Cal.App.3d 500 [133 Cal.Rptr. 806] (no good cause for filing the appeal 20 days late because claimant was caring for sick family members for four days and looking for a place to move); Perez v. Unemployment Insurance Appeals Bd. (1970) 4 Cal.App.3d 62 [83 Cal.Rptr. 871] (no good cause for filing almost five months late because the claimant did not understand the law and believed the EDD’s decision was correct).

502       Gibson v. Unemployment Insurance Appeals Bd. (1973) 9 Cal.3d 494.

503       Cal. Code Regs., tit. 22, § 5050, subds. (a), (b).

504       Cal. Code Regs., tit. 22, § 5050, subds. (e)-(i).

505       Unemp. Ins. Code, § 1332, subd. (b).

506       Unemp. Ins. Code, § 1332, subd. (a).

507       Unemp. Ins. Code, § 1335.

508       Unemp. Ins. Code, § 1335.

509       Cal. Code Regs., tit. 22, §  1375-1, subd. (d)(1).

510       Unemp. Ins. Code, § 1380.

511       Id.

512       Cal. Code Regs., tit. 22, § 5056, subd. (a).

513       The Secretary of Labor interprets §§ 303(a)(1) and 303(a)(3) of the Social Security Act to require that a State law include provisions for appeal hearings and decisions “with the greatest promptness that is administratively feasible.” Code Fed. Regs., tit. 20, § 650.3. A State will be deemed to comply substantially with this requirement if the State has issued at least 60 percent of all first level benefit appeal decisions within 30 days of the date of appeal, and at least 80 percent of all first level benefit appeal decisions within 45 days. Code Fed. Regs., tit. 20, § 650.4. For the third quarter of 2009, only 2.6% of California appeals decisions were issued within 30 days of the date of appeal, and 6.0% of California appeals decisions were issued within 45 days of the date of appeal.

514       Cal. Code Regs., tit. 22, § 5062, subd. (b); P-B-483.

515       Cal. Code Regs., tit. 22, § 5057, subd. (a).

516       Cal. Code Regs., tit. 22, § 5066, subd. (h).

517       Unemp. Ins. Code, § 1095, subd. (b), (c).  See also P-R-468.

518       Unemp. Ins. Code, § 1095, subd. (b), (c); Cal. Code Regs., tit. 22, §§ 5010, subd. (j).

519       P-B-218; P-B-293; P-B-378.

520       Lab. Code, § 230, subd. (b).

521       Rabago v. Unemployment Insurance Appeals Bd. (1978) 84 Cal.App.3d 200 [148 Cal.Rptr. 499].

522       P-B-27.  See also Cal. Code Regs., tit. 22, § 1256-3, subd. (b).

523       Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494, 499.

524       Cal. Code Regs., tit. 22, § 5062, subd. (n).

525       Cal. Code Regs., tit. 22, § 5063(b).

526       Id.

527       Cal. Code Regs., tit. 22, § 5062, subd. (m).

528       Cal. Code Regs., tit. 22, § 5062, subd. (c).

529       Cal. Code Regs., tit. 22, § 5062, subd. (m).

530       Unemp. Ins. Code, § 1952.

531       Cal. Code Regs., tit. 22, § 5062, subd. (e).

532       Cal. Code Regs., tit. 22, § 5062, subd. (f).

533       P-B-218; P-B-293; P-B-378.

534       P-B-57; P-B-478.

535       Evid. Code, § 1200, subd. (a).

536       Cal. Code Regs., tit. 22, § 5064.

537       Per the U.S. Department of Labor, the Office of Appeals should decide 60 percent of appeals within 30 days and 80 percent of appeals within 45 days.

538       Cal. Code Regs., tit. 22, § 5065.

539       Unemp. Ins. Code, § 1334.

540       Unemp. Ins. Code, § 409.

541       P-B-10.

542       Cal. Code Regs., tit. 22, § 5103, subds. (a), (b).

543       Cal. Code Regs., tit. 22, § 5103, subds. (c)-(g).

544       Cal. Code Regs., tit. 22, § 5008, subd. (a) (referring to the definition of “filing” in Cal. Code Regs., tit. 22, § 5000, subd. (gg)).

545       Cal. Code Regs., tit. 22, § 5008.

546       Cal. Code Regs., tit. 22, § 5010, subd. (j).

547       Cal. Code Regs., tit. 22, § 5105, subd. (b).

548       Cal. Code Regs., tit. 22, § 5102.

549       Cal. Code Regs., tit. 22, § 5105, subd. (a).

550       Cal. Code Regs., tit. 22, § 5105, subd. (b).

551       Cal. Code Regs., tit. 22, § 5108.

552       Unemp. Ins. Code, § 1337.

553       Code Civ. Proc., § 1094.5.

554       Unemp. Ins. Code, § 410.

555       Du Four v. Unemployment Insurance Appeals Bd. (1975) 49 Cal.App.3d 863 [122 Cal.Rptr. 859].

556       E.g. Windigo Mills v. Unemployment Insurance Appeals Bd. (1979) 92 Cal.App.3d 586, 595 [155 Cal.Rptr. 63, 69].

557       Windigo Mills v. Unemployment Insurance Appeals Bd. (1979) 92 Cal.App.3d 586, 594 [155 Cal.Rptr. 63, 68].

558       There is a limited exception to this order of payment.  Some claimants exhausted their first two tiers of EUC benefits and commenced Fed-ED benefits prior to the enactment of an expansion to the EUC program (i.e. tiers three and four). These claimants will continue to receive any Fed-ED benefits prior to switching to EUC tiers three and four.

559       The date of the four extensions are as follows: November 21, 2008 (Public Law 110-449), February 17, 2009 (Public Law 111-5), November 6, 2009 (Public Law 111-92), and December 19, 2009 (Public Law 111-118).

560   Public Law 110-252, § 4002(b) and (c). 561 Public Law 110-252, § 4002(d) and (e). 562        Public Law 110-252, § 4001(d)(1).

563       Public Law 110-252, § 4002(d).

564       Public Law 110-252, § 4002(e).

565       Public Law 110-252, § 4001(d)(2)(A).

566       Unemp. Ins. Code, § 4552, subd. (e).

567       Public Law 110-252, § 4007, subd. (a).

568       Public Law 110-252, § 4007, subd. (b)(1) and (2).

569       Public Law 110-252, § 4007, subd. (b)(3).

570       The Fed-ED law required states to enact enabling legislation; California’s provisions are codified at Unemp. Ins. Code, §§ 4001 – 4751.

571       Federal-State EUCA of 1970, § 203(d); Unemp. Ins. Code, § 4003, subd. (c)(1) and (2).

572       ARRA, Title II, § 2005.  Department of Defense Appropriations Act, 2010, Public Law No. 111-118 (enacted December 19, 2009), § 1009(a)(3) extended the end date of the temporary funding from December 31, 2009 to February 28, 2010.

573       Unemp. Ins. Code, § 4003, subd. (c)(3); Federal-State EUCA of 1970 § 203(f)(1)(A).

574       Unemp. Ins. Code, § 4004, subd. (e); Federal-State EUCA of 1970, § 202(b)(3)(A).

575       Public Law 110-252, § 4001(d)(2)(A).

576       Unemp. Ins. Code, § 4552, subd. (e).

577       Unemp. Ins. Code, § 4554.

578       Unemp. Ins. Code, § 4553.

579       Senate Bill 1471.

580       Unemp. Ins. Code, § 1279.5, subd. (i).

581       Unemp. Ins. Code, § 1279.5.

582       Unemp. Ins. Code, § 1279.5, subd. (a).

583       Unemp. Ins. Code, § 1279.5, subd. (k).

584       These first three requirements are codified at Cal. Code Regs., tit. 22, § 1252-1, subd. (a).

585       Cal. Code Regs., tit. 22, § 1252-1, subd. (b).

586       Cal. Code Regs., tit. 22, § 1326-7.

587       Cal. Code Regs., tit. 22, § 1326-8, subd. (b).

588       Cal. Code Regs., tit. 22, § 1326-10.

589       Cal. Code Regs., tit. 22, § 1326-10, subd. (c).

590       Unemp. Ins. Code, § 1267.

591       Unemp. Ins. Code, § 1269, subd. (a).

592       Unemp. Ins. Code, § 1269, subd. (b).

593       Benefit Determination Guide at Miscellaneous 85, subd. (B).

594       Unemp. Ins. Code, § 1269, subd. (c).

595       Unemp. Ins. Code, § 1269, subd. (d). See also Benefit Determination Guide at Miscellaneous 85.

596       P-B-109.

597       Unemp. Ins. Code, § 1271, subd. (a).

598       P-B-466.

599       Id.

600       Unemp. Ins. Code, § 1271.5, subd. (a). See also P-B-482 (Note, however, that the Legislature rewrote the code section after this decision and it appears that notifying claimants with the “UI Guide to Benefits” will satisfy the EDD’s duty to notify).

601       Unemp. Ins. Code, § 1267.

602       Unemp. Ins. Code, § 1272.

603       Id.

604       Unemp. Ins. Code, § 1272.5.

605       Unemp. Ins. Code, § 1271, subd. (b).

606       Code Fed. Regs., tit. 20, § 625.4.

607       “Major disaster” as provided in Code Fed. Regs., tit. 20, § 625.5.

608       See Code Fed. Regs., tit. 20, § 625.2(d).

Brad Nakase, Attorney


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