Laid off while on leave, denied unemployment in California...

January 14, 2010 12:24 PM

(Asking for a friend). My friend was laid off from his salaried job in California last year (employer ran out of money, usual story). He was on vacation at the time and had had to take unpaid leave to go on the (long ago arranged) vacation, as the employer did not offer any paid leave. He was told in his last week off that he didn't have a job to return to.

He was denied unemployment by CA EDD, and given the reason that he had left his job voluntarily. That's not true, as he had been expecting to return and his employer wanted him back on a set and pre-arranged date. The ex-employer is not contesting the claim.

The only thing I can think of as a lay person (who deals often with labor issues but not EDD) that makes this sound tricky is that his last paycheck was for July, and he was laid off effective the start of September, meaning perhaps that he was not technically on payroll when he was laid off. Is this an issue?

Now his appeal is coming up, he has a letter of support from the ex-employer, and a couple of emails from the original arrangement of the leave, although not many. He does not have any documentation of the lay-off, it all happened verbally and he didn't push as he was hoping at the time to be re-hired in a month or two.

This all seems crazy to me, you lose your right to unemployment because you were away at the time you got the news? Can anyone tell me if this is correct in California, if my friend has any chance of winning his appeal, and if there's anything else that might help him win his case?

Thanks!

posted by crabintheocean to work & money (5 answers total)

IANAL, but I am a former employer who has both won and lost appeals at the EDD. You say, "he has a letter of support from the ex-employer..." Can we assume from this that the ex-employer is not contesting his right to benefits? If this is the case, can the employer preovide a letter that clearly states that, a) the termination of employment was not voluntary, b) that the employer did, in fact, terminate the employment, and c) if such employment became available once more that your friend would be eligible to be re-hired?

You also state that his last paycheck was for July, and he was laid off effective the start of September. First, are we to assume that the July check was payment, in advance for his vacation time? I can see why EDD would be confused by this. Second, he would be "on payroll" until he was removed from it by the employer whether he was drawing a check or not. This is virtually the definition of unpaid leave. Again, the ex-employer should be able to clear this up before the Administrative Law Judge. If the ex-employer will not do so willingly, he/she can be subpoenaed by the EDD, but this must be arranged before the hearing.

It does not appear that he has lost his rights due to being away. It appears he has put them jeopardy by not providing the necessary documentation to back up his claim.
posted by Old Geezer at 12:55 PM on January 14, 2010

Your friend should have a pretty easy time winning the appeal: Being on unpaid leave for several weeks prior to layoff does not negate the layoff here in California, and a letter from the employer documenting the involuntary layoff should be decisive. In the best of times, California EDD will make mistakes, especially those that err on the side of denying compensation; they're perfectly willing to reverse themselves when circumstances are clarified for them.

That said, keep in mind that the state unemployment compensation bureaucracy is utterly, totally overwhelmed right now, and the long delay between the layoff and this appeal may also complicate things. Nevertheless, if your friend gets things in play without further delay, and is diligent following up quickly on all forthcoming communications, s/he should be in luck
posted by gum at 3:19 PM on January 14, 2010

Thanks folks! It seemed clear to me that the denial was wrong, but I guess I'd assumed that appeals were just a technicality and a waste of time - seems that's not so.

Old Geezer, just to clarify - the ex-employer is not contesting, their letter says all the things you mention, the July check was payment for work performed in July (he was on vacation and not paid in August, and then made unemployed at the start of September).
posted by crabintheocean at 2:26 PM on January 15, 2010

I will come back to post whether he wins the appeal or not, but I think it will be a couple of weeks at least.
posted by crabintheocean at 2:27 PM on January 15, 2010

Appeal successful, and apparently easily so! Seems the person who did the initial EDD interview got confused about why my friend took leave, and wrote down that he took it "to save his job because employer had no money". Being on leave when he was laid off wasn't an issue at all, as it was a real layoff.
posted by crabintheocean at 10:28 AM on February 1, 2010