Browse through our reading room for articles written by Matthew Rafat and familiarize yourself with the
key issues affecting workers and employers in today's workplace. New articles are posted monthly.
Unemployment Insurance
article added on October 14, 2005
When an employee is terminated, fear and anxiety are par for the course. The employee also typically begins to feel shame, anger, and shock, although not necessarily in that order. The employee may soon want to find a lawyer to sue his or her former company; however, by immediately focusing on litigation, the terminated employee sometimes neglects the easiest method of getting paid--unemployment insurance.
Even if the employer claims the employee was terminated for cause, the unemployment claims process should be utilized by the employee. This is because unemployment insurance–-unlike many other tribunals-–actually favors the employee.
For example, the “Unemployment Insurance Act is remedial and must be liberally construed to effectuate its purpose.” Silva v. Nelson, (1973) 31 Cal. App. 3d 136, 140.
In addition, under Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671, 681, Fn7, the employer bears the overall burden of proving misconduct.
As for an employer claiming misconduct, the UIAB’s definition indicates that misconduct rising to the level of a denial of benefits must be severe:
[T]he intended meaning of the term ‘misconduct,’ . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.
After being terminated, the employee should apply for unemployment benefits online at http://www.edd.ca.gov/fleclaim.htm. After a seven day waiting period, if the employer does not contest the benefits, the employee will begin receiving checks twice a month for an amount based on prior earnings. Even if an employee has only worked for an employer for a few days, the employee should still apply for unemployment insurance, because the employee may have paid into the system through a prior employer.
Also, some employers may offer a severance package to an employee in order to minimize the their litigation risk. Even if you accept a severance package, payments to an individual under a plan established by an employer for the purpose of supplementing unemployment compensation benefits are not construed as wages; and so benefits may not be denied or reduced because of the receipt of payments under such plans. Thus, receipt of dismissal or severance pay generally does not preclude unemployment benefits.
In short, if an employee is terminated, filing for unemployment insurance should be the first step.
Age Discrimination
article added on October 25, 2004
Recently, age discrimination has been a hot topic in my initial consultations. There are two kinds of age discrimination--disparate treatment and disparate impact discrimination.
Comments such as, "We need a younger workforce with more energy," or "We need college students who can understand computers" are both examples of discriminatory comments. One of these comments, by itself, may be sufficient to show discrimination, assuming a plaintiff has witnesses who are willing to testify that a supervisor made such comments.
Being replaced by someone who is under the age of 40 and who earns less money may be evidence of age discrimination. This is because higher earnings come with age, and replacing workers based on salaries disproportionately impacts older workers. Thus, if you are laid off and then replaced by a 35 yr old who earns less than you do, you may have a case of age discrimination.
Disparate impact discrimination is more subtle--a company lays off 200 people, and of those 200 people, 85% are over the age of 40. This may be a case of age discrimination and will depend on hiring an expert witness (a statistician).
If you think you have been a victim of age discrimination, please do not hesistate to contact me. Time limits apply to each cause of action, and once those time limits expire, in most cases, you cannot file a successful lawsuit.
