Best Weapons for an EDD Wage Claim Hearing?

May 5, 2006 8:26 AM

How to prepare for an unemployment hearing defense?

A follow up on this original thread. Among other things that have happened, my unemployment claim was denied so I had to appeal it and now have a hearing next week to defend my actions and win big money (well, any money is big money right now).

Since there was alot of scattered info in the other thread, let me run a quick summary.

I worked in PR for a small company for nearly four years, helped the company grow every year, increase its market footprint, yadda, yadda, yadda. In February the company put on a conference for about 200 executive techno-types that I ran pretty much solo from planning to sweeping up after the event was over. Including selling sponsorships for the show with an oral agreement that this show would be like the previous year's show in terms of commission structure where I was a co-conference coordinator.

After the highly successful completion of the show (estimates of downstream revenue of $1 mill +), my boss decides that she isn't going to pay me the commissions. So I quit a little bit later on that day (I had to go trade my motorcycle for my truck to clear out my office). I'm also preparing a suit to recoup the commisions she illegally kept from me but that's a separate issue right now.

So, I'm wondering how to best prepare to kick thier asses at the hearing next week. I've already solicited an ex-employee for a testimonial who had to defend an unemployment claim on the grounds of a hostile work place, should I get as many as possible? What about pay records? Sales spreadsheets? Coverage spreadsheets? What are the biggest arrows I can bring with me?

Also, if there's more info that's needed, just ask. And thanks to everyone for their good thoughts and insights the first time around. I did not name names and have maintained an excellent working relationship with the company president. My beef predates his hire and is with the owner/CEO.

posted by fenriq to law & government (8 comments total)

Look up constructive dismissal.

Also, get a binder and categorize all your records -- use tabs. Then write a chronological summary of everything that happened. Make columns -- event, outcome, date, page reference #. Also write a brief summary that outlines the overall problem, reasons for quitting (tied to constructive dismissal, etc), employment law/guide interpretations tied to those points, and a wrap up.
posted by acoutu at 8:31 AM on May 5, 2006

I would argue that by failing to pay you your earned salary, they were constructively firing you.

Their argument is "you quit, we didn't fire you, therefore you don't get unemployment".

Your argument is "You refused to pay me the money we had agreed on for my services, which is constructively the same as firing me."

Assuming you have good backup for your claim regarding what you should have been paid, I'd think your argument would be a good one. After all, a company can't just refuse to pay employees, wait for them to quit, then claim they weren't fired.

Google for "constructive discharge", "constructive firing", etc. The usual use is in a slightly different context, where employees are pursuing some sort of harassment claim against the company, but the idea is the same for your unemployment claim.
posted by jellicle at 8:38 AM on May 5, 2006

If you voluntarily quit, it's most likely your claim will be denied.
Quitting over an oral pay agreement is not going to go in your favor.
posted by whoda at 8:42 AM on May 5, 2006

whoda, actually, in California, yes oral agreements with a precedent are pretty binding.

Thanks for the "constructive discharge" info, I'll look into it.

What about testimonials from other ex-workers?
posted by fenriq at 8:48 AM on May 5, 2006

I actually had a fantastic experience defending an unemployment claim once. The details are long but the short version is that they never expected me to actually be organized, submitting written records with exact dates, names, figures, quotes, etc. My ex-employer just sent a rep down from accounting who said basically "Uh, we don't think we she have to pay this guy." And although the judge said he would mail the decision, it was quite clear from his attitude that I won. They did not appeal.

So I would say you are on the right track gathering testimonials. Get all copies of your performance reviews, if you have them in writing. Track out your history of raises, etc.

In New York, you have the right to appeal if you lose. You also have the power to subpoena witnesses. If I lost, I was prepared to subpoena half the office for cross-examination. You might consider that if California has the same law and if you think it would help your case to put your boss on the stand, where they might hesitate to perjure themselves about the oral agreement.
posted by mikepop at 9:05 AM on May 5, 2006

BTW, I once one a constructive dismissal case before the appeals people. Figure out all the points of constructive dismissal and map your case to it. Include any other relevant points of employment law/policy. Show them performance reviews and anything else.
posted by acoutu at 9:30 AM on May 5, 2006

Stay calm and professional. Don't loose your cool. Prepair your argument and test it with others, preferably someone with a law backround who can think critically and help you identify any weak points in your argument. Bring witnesses. From your description of the event it sounds like you will win on constructive dismissal. Good luck!
posted by clubfoote at 3:25 PM on May 5, 2006

Constructive dismissal/discharge is definitely applicable here. I may have some trouble bringing witness but signed testimonials from a few people shouldn't be too tough to gather up.

Thanks everyone. I'll try to get back with an update after the event!
posted by fenriq at 7:21 PM on May 5, 2006