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

I'm completely stressed trying to help my sister through this EDD nightmare! She worked at a healthcare admin company for 2.5 years and was let go in January. Her termination letter specifically stated 'performance issues' as the reason, but when she applied for unemployment, EDD denied her claiming MISCONDUCT, not poor performance. We were shocked because misconduct is a whole different thing! Here's where it gets weird - we appealed and just received the hearing packet. In it, her former employer is claiming she received 6+ formal warnings during her employment! This is absolutely false - she only ever received TWO documented warnings the entire time she worked there (one in early 2023 and one about a month before termination). She has copies of both warnings with her signature. Now we're panicking about this appeal hearing scheduled for next week. The employer initially told her they 'wouldn't contest' her unemployment claim, but now they're sending all this false documentation to EDD. Has anyone successfully appealed a similar situation? We don't have money for a lawyer, so trying to prepare ourselves. What evidence should we bring? How do we handle the employer making false claims about these nonexistent warnings? Does EDD side with employers most of the time?

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.

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Thank you so much for this detailed advice! I didn't know we could request her personnel file - will do that today! One question though: during the hearing, should we directly challenge the employer about the fabricated warnings or focus more on the performance vs. misconduct distinction? I'm worried about coming across as combative.

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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!!

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This is so true! EDD denies so many legitimate claims on first review it's ridiculous. They have this automatic bias toward employers. I've seen people get denied for the most absurd reasons. But the appeal process is where you actually get a fair hearing with a judge who will look at the ACTUAL evidence. The whole system is designed to discourage people from pursuing legitimate claims. Keep fighting!!!

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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.

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This is incredibly helpful information, thank you! The distinction between performance and misconduct seems to be key here. We will definitely emphasize the termination letter wording. Do you think we should also bring character references or anything about her good performance prior to the recent issues?

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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!

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yup this exact thing happened to my brother too!! company tried to lie about warnings but couldnt prove it. judge got annoyed with them for wasting time with fake evidence lol

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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.

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Thanks for the advice! How long did your hearing last? We're trying to prepare mentally for the whole process.

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Mine was 45 minutes. Judge asked me questions first, then employer. Then I could respond to what employer said. Very formal but judge was nice. Dress nice like job interview.

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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.

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That's a good idea, we've been trying to reach EDD for clarification on the appeal process but keep hitting the 'maximum callers' message. I'll check out that service - we desperately need to talk to someone before the hearing to understand what to expect.

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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.

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This is excellent advice! Questioning how they have personal knowledge of alleged incidents they weren't present for can really undermine testimony. Many employer reps at these hearings are just reading from notes prepared by managers but haven't personally witnessed anything.

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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.

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That's really helpful. The two warnings were for missing some processing deadlines during high-volume periods. My sister was handling the workload of 1.5 people after a coworker left and wasn't replaced. Is that worth mentioning, or stick to just acknowledging what the warnings were for?

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Absolutely mention the increased workload - that's crucial context that shows this was a performance capacity issue, not misconduct! Being unable to handle an excessive workload is completely different from willfully disregarding job duties. Make sure to emphasize that she was doing her best to meet deadlines with significantly increased responsibilities after staff reduction. This strongly supports the "performance" vs "misconduct" distinction that's central to your case.

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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.

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Oh no, she hasn't been certifying because she thought there was no point while denied! I'll tell her to start immediately. Can she go back and certify for previous weeks somehow?

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She should call EDD immediately about backdating her certifications. Normally you can only backdate within a limited timeframe, but since she's in the appeals process, they might make an exception. Definitely have her start certifying going forward regardless of the current denial status. This is one of the most common mistakes people make!

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