UNEMPLOYMENT: LESS RED AND MORE GREEN IN 2010

Posted on February 1, 2010 by Walter Haines, Esq.

Last year found many California workers with personal finances in the deep red. According to the U.S. Department of Labor, California had the greatest number of job losses with over 617,000 workers either laid off or terminated.  Accordingly, the number of residents regularly receiving unemployment checks and filing new claims for unemployment benefits rose. The good news for the unemployed is that an economic recovery is projected for 2010. After cutting costs and laying off workers, employers will need new employees to meet increasing production demand. Lynn Reaser, chief economist at Point Loma Nazarene University, has predicted there will be job growth in all areas of the economy especially in the tech, health care, and accounting sectors. Although unemployment rates will be slower to improve than industry growth, Reaser suspects that the national unemployment rate will level out at 9.5 percent.

The other piece of good news is that the federal government is stepping in to create more jobs through its $500 million green jobs initiative. It may be said that “money doesn’t grow on trees,” but unemployed workers may earn some much needed green by helping out the environment. Following the millions of dollars already authorized, theU.S. Department of Labor recently announced an additional $150 million in grants for workers willing to be trained in energy efficiency jobs. Authorized by the American Recovery and Reinvestment Act, this award is part of a round of grants that will be used in projects in areas of the country with at least a 15% poverty rate. The goal is to provide the unemployed, particularly high school drop-outs and minorities, with basic education and occupational skills so they may find work in an eco-friendly career.

 Organizations receiving grants in California include:

• The Los Angeles Community College District
• The National Council of La Raza for San Jose and San Diego
• Northern Rural Training and Employment Consortium
• The West Hills Community College District

In addition, more green grants are expected to be announced in the next couple weeks. 

Over the next month or so the program will be working closely with employer groups to determine how much demand there is for certain types of jobs and the amount of training required for each. The type of work is lkely to be varied, but probably best suited for individuals who like working outdoors, have some construction experience, or simply want a career change. If you are interested in applying for the program, you can visit the Employment Development Department (EDD)’s One-Stop Career Center in your county.  Even though applications won’t be available for several weeks, unemployed workers can still take advantage of the center to register for California labor law attorney.
 

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Applying for Unemployment Benefits? Beware of Allegations of Misconduct

Posted on December 21, 2009 by Walter Haines, Esq.

While companies continue to downsize their workforce in order to cut costs, they may try to avoid being hit with the additional expenses associated with layoffs. This includes payment of wages, overtime, and accrued vacation days as well as expensive severance packages. No doubt there is a similar incentive for employers to dodge the payment of unemployment benefits. The key for employees is know their rights and recognize when it is appropriate to appeal a denial.

Generally, all employees who have lost their job “through no fault of their own” are entitled to collect unemployment benefits provided that they are:

(1) Completely unemployed or working less than full-time,
(2) Ready and looking for work,
(3) Have worked within the last 18 months

One exception is if the employee has been “discharged for misconduct connected with his or her most recent work.” (Unemployment Insurance Code, Section 1256) The Employment Development Department (EDD), not the employer, determines what behavior rises to the level of misconduct. As defined by the California Court of Appeals, misconduct is “a substantial breach by the claimant of an important duty or obligation owed to the employer, willful or wanton in character, and tending to injure the employer.” (Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719) Examples of misconduct include the sale of drugs on the employer’s premises, theft of company property, and assault of other employees. On the other hand, many legitimate reasons for termination such as tardiness, poor work performance, and ordinary negligence are not misconduct.  If misconduct is established, it must also be the direct and proximate cause of the employee’s termination. (Precedent Decision P-B-192). The employer bears the burden of proof in cases involving misconduct. (Prescod v. California Unemployment Insurance Appeals Board (1976) 57 Cal.App.3d 29)

Because disqualification under section 1256 is fact-specific and largely subjective,
it is often misunderstood by employees and taken advantage of by employers. Companies may attempt to avoid payment by camouflaging a financially induced layoff as a case of wrongdoing or “misconduct” on the part of the employee. Employees should be particularly aware of claims of misconduct based on violation of company policy because there is the added element of “reasonableness.” According to Labor Code, Section 2856,

An employee shall substantially comply with all the directions of his or
her employer concerning the service on which he or she is engaged, except
where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.

“Disobedience of a lawful and reasonable instruction of the employer, related to the employer’s business, is misconduct.” (Precedent Decision P-B-190) The reasonableness requirement was addressed in Precedent Decision P-B-183. In that case, the employer demanded that the claimant stop discussing the possibility of opening his own business. The claimant refused and was discharged. The Appeals Board held that the employer’s demands were unreasonable as there was no evidence the claimant’s discussions disturbed the employer’s business; accordingly, the claimant’s actions did not constitute misconduct.

If you believe you are entitled to unemployment benefits, do not assume that an initial denial or contest by your employer is the final word. The time to appeal a decision of an administrative law judge is usually only a few days; therefore, it is in your best interest to contact a California labor law attorney as soon as possible. A knowledgeable attorney can provide an unbiased analysis of your situation and walk you through the entire process. Be aware that all testimony given an unemployment hearing can be used in other proceedings. If you have a possible claim for wrongful termination or personal injury, it is especially wise to prepare your testimony with counsel. Finally, do not forget to continue to file your weekly claim forms with the EDD while your appeal is being processed. If you are successful in court, you will only be compensated for those weeks in which you filed weekly claim forms.
 

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