EDD denied unemployment for 'misconduct' but employer claims poor performance - Help for appeal hearing!

I went through almost the exact same situation last year. The key difference between 'misconduct' and 'poor performance' is HUGE for EDD purposes. Misconduct generally requires a willful disregard of employer interests or repeated violations after warnings. Poor performance alone is not misconduct - it's just not being good enough at your job, which DOES qualify for unemployment. For your hearing: 1. Bring copies of the termination letter specifically mentioning 'performance issues' 2. Bring the only two written warnings she ever received 3. Request her personnel file from HR immediately (they're legally required to provide it) 4. Prepare a timeline showing the 2 actual warnings vs the alleged 6+ 5. Have her ready to testify that she was never given any other formal warnings The judge will likely focus on whether there was actual misconduct vs just not meeting performance standards. The fact that the termination letter cites performance makes your case stronger.

omg EDD is such bs sometimes. they literally ALWAYS side with employers at first. my cousin got fired for "being late" but she had documented medical reasons and still got denied initially. you gotta fight this!!

I represent claimants at EDD appeals hearings (not a lawyer, but have experience in this area). Here's what you need to understand: First, there's a critical legal distinction between misconduct and poor performance under unemployment law. Misconduct requires willful/deliberate disregard of employer interests. Simply not meeting performance targets is NOT misconduct. Second, the burden of proof is on the employer to establish misconduct. If they claim 6+ warnings but can only document 2, that severely undermines their case. Third, prepare your sister to answer questions calmly and truthfully. When asked about warnings, she should clearly state she received only 2 formal written warnings that she signed, and was never informed of any others. Fourth, emphasize that the termination letter specifically cited performance, not misconduct. This is powerful evidence. Lastly, ask for a continuance if you haven't received the personnel file by the hearing date. The judge will likely grant this since it's relevant evidence. These cases are actually fairly winnable with proper preparation. The ALJ (Administrative Law Judge) will focus on legal definitions, not employer preferences.

ABSOLUTELY request the personnel file ASAP!!!! My company tried pulling the same garbage when I was let go - claimed I had all these write-ups that never happened. When I demanded my personnel file, suddenly they could only produce 1 warning from 8 months before I was fired, not the 5 they claimed to EDD. The judge HATES when employers lie about documentation. Make sure your sister can clearly explain her job duties and how she was performing them to the best of her ability. Also if there was any good performance reviews or positive feedback EVER during her employment, bring those too!

I had appeal hearing last month. Very nervous!! Judge asked many questions. Be honest. Don't argue or get angry. Just facts. I won my case because employer couldn't prove misconduct. Just be prepared and organized with all papers.

After dealing with EDD for months last year (endless busy signals, disconnected calls, getting different answers every time), I finally used this service called Claimyr that got me through to an actual EDD rep in about 20 minutes. Saved me weeks of calling. They have a demo video at https://youtu.be/JmuwXR7HA10?si=TSwYbu_GOwYzt9km that shows how it works. Before your hearing, you might want to actually talk to EDD directly to clarify some things about the appeal process and make sure you're fully prepared. Their website is claimyr.com - definitely worth checking out if you're having trouble getting through on the phones.

Former HR here. One thing to note: in California, employers are legally required to let employees know when something is going in their personnel file that could affect their employment status. If they're claiming she had 6+ warnings but she only received/signed 2, that's a HUGE red flag that they're fabricating evidence. Also, check if her company has a progressive discipline policy (verbal warning → written warning → final warning → termination). If they do and didn't follow it, that strengthens your case that this wasn't misconduct but rather a convenient excuse. One more thing - at the hearing, the employer representative might not be someone who worked directly with your sister. Sometimes they send HR people who are just reading from notes. If they make claims about specific incidents, ask how they have personal knowledge of these events if they weren't present.

One more crucial point: during the hearing, make sure your sister answers only the specific questions asked. Don't volunteer additional information or try to explain too much. Keep answers brief and factual. If asked "Did you receive six warnings?" a simple "No, I received only two formal written warnings during my employment" is sufficient. No need to speculate why the employer might claim otherwise. Also, be prepared for the judge to ask about the content of the two warnings she did receive. Be honest about what they were for, but also be ready to explain any context or mitigating factors. The judge needs to determine if these constituted "misconduct" or simply performance issues.

Has your sister been certifying for benefits while waiting for the appeal? MAKE SURE SHE KEEPS CERTIFYING even though she's getting denied! If she wins the appeal, they'll pay all those past weeks, but only if she certified properly. I've seen people miss out on thousands because they stopped certifying during their appeal process.

Document everything and stay organized! I went through a similar appeal last year where my employer fabricated warnings. Here's my checklist for your hearing: 1. Create a timeline of employment showing only the 2 actual warnings 2. Bring the original termination letter highlighting "performance issues" 3. Get that personnel file ASAP - if they can't produce the alleged 6 warnings, that's huge 4. Prepare a simple statement about her job duties and how she tried to meet expectations 5. Practice staying calm - judges notice when employers can't back up their claims The fact that they initially said they wouldn't contest but now are lying about documentation is actually going to work against them. Judges see right through this stuff. Focus on the legal distinction between misconduct (willful) vs performance (trying but not meeting standards). You've got a strong case! Also yes, make sure she keeps certifying for benefits during the appeal process - she can get backpay if she wins.

I'm going through something very similar right now! My employer is also claiming misconduct when they fired me for "not meeting sales targets" - which is clearly performance, not misconduct. The stress is unreal. A few things that have helped me prepare: - I found out that misconduct has a very specific legal definition in CA unemployment law - it has to be willful or deliberate wrongdoing, not just failing to do your job well enough - Document EVERYTHING with dates and times - I made a simple timeline showing what actually happened vs what my employer is claiming - The termination letter saying "performance issues" is golden evidence - that's the employer's own words contradicting their misconduct claim One thing I learned from my research: if your sister was genuinely trying to do her job but couldn't meet the standards (especially with increased workload after that coworker left), that's textbook "discharge for reasons other than misconduct" which qualifies for unemployment. The fake documentation thing is infuriating but honestly might work in your favor - judges don't like it when employers can't produce evidence they claim exists. Stay strong and stick to the facts!

I went through an almost identical situation 8 months ago - employer fired me for "performance issues" then claimed misconduct to EDD. The appeal hearing was nerve-wracking but I won! Key things that helped my case: - The termination paperwork clearly stated "performance" not misconduct - I had documentation showing I was trying my best under difficult circumstances - The employer couldn't produce half the "evidence" they claimed existed - I stayed calm and just answered questions honestly The judge seemed really focused on whether I was willfully disregarding my duties vs just struggling to meet expectations. Since your sister was handling 1.5 people's workload after that coworker left, that's perfect evidence this was a capacity issue, not misconduct. One tip: if the employer's rep wasn't your sister's direct supervisor, ask them how they have personal knowledge of the day-to-day performance issues they're claiming. Often they're just reading from notes and can't actually testify to specifics. The fake warnings thing is going to backfire on them big time. Judges hate when employers fabricate documentation. You've got this! The truth has a way of coming out at these hearings.

I'm a former EDD appeals representative and I can tell you that cases like your sister's are actually quite common - and winnable when prepared properly. The employer's behavior here (initially saying they wouldn't contest, then fabricating warnings) is a major red flag that will not go unnoticed by the Administrative Law Judge. Here's what I'd focus on for your hearing preparation: **Key Legal Point**: California unemployment law requires "misconduct" to be willful, deliberate, or in substantial disregard of the employer's interests. Simply not meeting performance standards - especially under increased workload - does NOT constitute misconduct. **Evidence Priority List**: 1. That termination letter stating "performance issues" (this is your strongest evidence) 2. The two actual written warnings she received and signed 3. Personnel file showing NO additional warnings exist 4. Documentation of increased workload after coworker departure **Hearing Strategy**: - Let the employer present their case first, then systematically address each false claim - When they can't produce the alleged 6 warnings, ask the judge to note this for the record - Emphasize she was terminated for inability to handle an unreasonable workload, not willful misconduct **Critical**: Make sure she continues certifying for benefits during the appeal process - she can receive back pay for all eligible weeks if she wins. The judge will likely find in her favor given the clear documentary evidence contradicting the employer's misconduct claim. Stay organized, stick to facts, and let the employer's lack of evidence speak for itself.