UI Advocates Guide - Legal Aid Society

Transcription

Unemployment Insurance
Benefits in California
A Guide for Advocates
January 2010
The Legal Aid Society – Employment Law Center
600 Harrison Street, Suite 120
San Francisco California 94107
www.las-elc.org
415.864.8848
We are pleased to produce and distribute this version of Unemployment Insurance Benefits: A Guide for
Advocates, comprehensively revised in January 2010.
Over the years, many individuals have contributed their time, expertise, and ideas to make this
publication possible, and we are very grateful for their support. This version was authored by Matthew
Goldberg, building upon prior versions drafted by employees and partners of the Legal Aid Society –
Employment Law Center.
For information on how to obtain a copy of this Guide, please contact Florencia Valle-Miller at [email protected]. We also welcome your comments and suggestions.
Regards,
Mike Gaitley
Senior Staff Attorney and Director of the Community Legal Services Program
[email protected]
Chapters
CHAPTER 1. INTRODUCTION ................................................................................. 1
CHAPTER 2. AMOUNT AND DURATION OF BENEFITS ............................................ 7
CHAPTER 3. OVERVIEW OF ELIGIBILITY REQUIREMENTS ..................................... 10
CHAPTER 4. THE CLAIM FILING PROCESS............................................................. 40
CHAPTER 5. EDD DETERMINATIONS .................................................................... 55
CHAPTER 6. THE APPEALS PROCESS .................................................................... 67
CHAPTER 7. SPECIAL PROGRAMS ........................................................................ 95
APPENDICES ....................................................................................................... 107
ENDNOTES ......................................................................................................... 112
Table of Contents
CHAPTER 1. INTRODUCTION ................................................................................. 1
A. Purpose and Organization of This Guide .............................................................................................. 1
B. History and Framework of the Unemployment Insurance System ...................................................... 1
C. The Role of Employers .......................................................................................................................... 4
CHAPTER 2. AMOUNT AND DURATION OF BENEFITS ............................................ 7
CHAPTER 3. OVERVIEW OF ELIGIBILITY REQUIREMENTS ..................................... 10
A. Sufficient Base Period Wages in Covered Employment ..................................................................... 10
B. Satisfactory Immigration Status.......................................................................................................... 12
C. No-Fault Separation from Most Recent Work .................................................................................... 13
1. Discharges ....................................................................................................................................... 15
2. Quits ................................................................................................................................................ 20
3. Constructive Quits........................................................................................................................... 27
4. Layoffs ............................................................................................................................................. 29
5. Strikes or Trade Disputes ................................................................................................................ 29
D. Able to Work ....................................................................................................................................... 31
E. Available for Suitable Work ................................................................................................................ 32
F. Refusing a Job Offer ............................................................................................................................ 36
G. Actively Searching for Work ............................................................................................................... 37
H. Unemployed or Underemployed........................................................................................................ 38
CHAPTER 4. THE CLAIM FILING PROCESS............................................................. 40
A. Submitting the Application ................................................................................................................. 40
B. Submitting Continued Claim Forms .................................................................................................... 46
C. Additional Steps in the Claims Filing Process...................................................................................... 48
1. Amending the Application .............................................................................................................. 48
2. Participating in an Eligibility Determination Interview ................................................................... 49
3. Registering for CalJOBS and Reemployment Services .................................................................... 50
4. Verifying Identity, Social Security Number, and Immigration Status ............................................. 51
5. Cancelling the Application .............................................................................................................. 52
D. Intervening Employment: Filing an “Additional” Claim ...................................................................... 52
E. Benefits Exhausted: Filing a Second Claim .......................................................................................... 53
CHAPTER 5. EDD DETERMINATIONS .................................................................... 55
A. Eligible for Benefits: Getting Paid ....................................................................................................... 55
B. Base Period Wages: Challenging the EDD’s Computation .................................................................. 55
C. Non-Monetary Determinations .......................................................................................................... 57
D. False Statements ................................................................................................................................ 59
E. Overpayments ..................................................................................................................................... 62
CHAPTER 6. THE APPEALS PROCESS .................................................................... 67
A. Submitting the Appeal ........................................................................................................................ 67
B. Notice of Hearing ................................................................................................................................ 70
C. Interviewing the Claimant................................................................................................................... 72
D. Getting and Reviewing the Appeal File .............................................................................................. 73
E. Securing Documents, Witnesses, and Statements ............................................................................. 75
F. Developing a Theory of the Case ........................................................................................................ 77
1. Misconduct Cases............................................................................................................................ 77
2. Voluntary Quit Cases ....................................................................................................................... 78
3. Able and Available Cases................................................................................................................. 79
4. Overpayment Cases ........................................................................................................................ 79
G. Drafting Examination Questions and the Closing Argument.............................................................. 80
H. Preparing Claimant for the Hearing.................................................................................................... 83
I. The Hearing .......................................................................................................................................... 84
J. The Decision......................................................................................................................................... 90
K. Board Appeals ..................................................................................................................................... 90
L. Writs .................................................................................................................................................... 93
M. Advocate Checklist: Key Steps in Preparing for an Appeal Hearing .................................................. 94
CHAPTER 7. SPECIAL PROGRAMS ........................................................................ 95
A. Benefit Extensions .............................................................................................................................. 95
1. Emergency Unemployment Compensation Program ..................................................................... 95
2. Federal Extended Duration Program .............................................................................................. 97
B. Work Sharing Claims ........................................................................................................................... 99
C. Partial Claims .................................................................................................................................... 100
D. California Training Benefits Program................................................................................................ 101
E. Disaster Unemployment Assistance ................................................................................................. 103
F. Trade Adjustment Assistance ............................................................................................................ 104
APPENDICES ....................................................................................................... 107
A. Additional Resources ........................................................................................................................ 108
B. EDD and CUIAB Forms ...................................................................................................................... 109
C. Acronyms .......................................................................................................................................... 111
ENDNOTES ......................................................................................................... 112
“Unemployment Insurance law is to be liberally construed to further the legislative
objective of reducing the hardship of unemployment.”
Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494, 499.
CHAPTER 1. INTRODUCTION
A. Purpose and Organization of This Guide
This Guide, a publication of the Legal Aid Society – Employment Law Center (LAS-ELC), is designed as a
resource for advocates, community workers, attorneys, law students, and others who help claimants1
access and navigate California’s system of Unemployment Insurance (UI) benefits.
This is one of several LAS-ELC publications that address California’s UI system, but is the only
comprehensive, single-source guide written for advocates. It is intended to assist advocates providing
all levels of assistance to claimants – from brief assistance to full representation – and at all stages in the
lifecycle of a claim for UI benefits. It attempts to cover all aspects of California’s UI system, but the
greatest attention is on those areas where claimants need the most assistance (i.e. claim filing and
appeals).
The remainder of this Chapter provides a brief history and framework of the Unemployment Insurance
system, and explains the special role that employers play in the system. Chapter 2 briefly explains the
amount and duration of UI benefits and Chapter 3 provides a comprehensive overview of the eligibility
requirements for UI benefits. Chapters 4 through 6 shift to the framework of a claimant engaging the
agencies and pursuing benefits. Chapter 4 reviews all the steps involved in a claim for benefits, Chapter
5 covers the range of Employment Development Department (EDD) determinations (typically in
response to claims for benefits), and Chapter 6 provides an in-depth review of all steps involved in the
appeals process (with an emphasis on first-stage appeals). Chapter 7 provides an overview of various
special programs, including benefit extensions, work sharing, partial claims, the California Training
Benefits Program, Disaster Unemployment Insurance, and Trade Adjustment Assistance. (A
comprehensive review of these programs is beyond the scope of this Guide.) The Appendices provide
links to additional resources, a list of all agency forms referenced in the Guide (and, where available,
links to online copies of these forms), and a list of common acronyms found in this Guide and in various
agency documents.
B. History and Framework of the Unemployment Insurance System
In 1935, President Franklin Roosevelt signed the Social Security Act (SSA), which provided federal
incentive funding for states to establish Unemployment Insurance (UI) programs for workers who lost
1
their jobs through no fault of their own and who were seeking work.2 Shortly thereafter, California
enacted the Unemployment Reserves Act in 1935, and payment of benefits started in January, 1938.
Although the federal and state laws have been amended countless times in the intervening decades,
today’s UI system looks remarkably similar to the system that was introduced in the 1930s.
Today’s UI system remains a federal-state partnership. It is based on federal law, but administered by
the states. Because of this structure, the program is unique among the country’s social insurance
programs.
The Federal Government
The SSA and the Federal Unemployment Tax Act (FUTA) establish certain baseline federal requirements
for the state programs, including: broad coverage provisions, some benefit provisions, the federal tax
base and rate, and administrative requirements. The Secretary of Labor is required to certify that state
unemployment insurance systems comply with these federal requirements.3 Consistent with the
certification process, the Secretary of Labor administers a Quality Control (QC) program for the FederalState unemployment compensation system.4 As part of the certification process and the QC program,
the Department of Labor actively monitors and evaluates California’s compliance with all federal
standards.
The Federal government provides two major financial incentives for state unemployment insurance
systems to comply with these federal requirements and subject themselves to federal monitoring and
certification. If a state UI system meets the minimum federal requirements under FUTA and Title III of
the SSA, 1) employers receive up to a 5.4 percent tax credit against the 6.2 percent federal
unemployment tax and 2) the state is entitled to federal grants to cover all the necessary costs of
administering the program. These administrative grants are paid to the states out of the net 0.8% FUTA
tax (i.e. 6.2% minus 5.4% credit) paid to the federal government by all employers.
The State Government
Within the framework of the federal requirements, each state designs its own UI program. The
state statutes set forth the benefit structure (e.g. eligibility/disqualification provisions and the
benefit amounts) and the state tax structure (e.g. state taxable wage base and tax rates).
While federal grants provide all the funds necessary to administer California’s UI system, the state is
responsible for raising the money to pay the benefits. California does this by levying a “payroll tax” on
California employers.
California’s principle source of unemployment insurance law is the California Unemployment Insurance
Code. In section 100 of the Code, the California legislature established the program’s underlying public
policy:
[T]he public good and the general welfare of the citizens of the State require the
enactment of this measure under the police power of the State, for the compulsory
setting aside of funds to be used for a system of unemployment insurance providing
2
benefits for persons unemployed through no fault of their own, and to reduce
involuntary unemployment and the suffering caused thereby to a minimum. It is the
intent of the Legislature that unemployed persons claiming unemployment insurance
benefits shall be required to make all reasonable effort to secure employment on their
own behalf.
The UI Code must be liberally construed to further the legislative objective of reducing the hardships of
unemployment.5 The Unemployment Insurance Code is implemented through regulations, which are
located in Title 22 of the California Code of Regulations. Interpretations of the Code and the Regulations
are made through published opinions of California courts. California’s UI system is administered by two
different agencies: the Employment Development Department (EDD) and the California Unemployment
Insurance Appeals Board (CUIAB).
The Employment Development Department (EDD)
The administration of California’s UI program is vested in the Employment Development Department
(EDD).6 The EDD is responsible for determining claimant eligibility for UI benefits, issuing benefit checks,
collecting employer taxes to fund the program, providing re-employment services, and adopting,
amending, and repealing regulations.7 Each year, the EDD pays out nearly $5.3 billion in UI benefits and
receives and processes more than 2.4 million new claims.8 With the exception of some of its job
services, the EDD conducts all unemployment insurance-related business over the telephone, via its
website, and through correspondence.
The UI program provides some services for job seekers and will require most claimants to use the EDD’s
online job bank (CalJOBS), but it lacks the resources to be a comprehensive employment or job
placement agency. For comprehensive job placement and training services, the EDD partners with state
and local agencies and organizations in administering a network of “one-stop centers.” More
information is available online at http://www.careeronestop.org/.
The EDD publishes a Benefit Determination Guide (BDG), an eight-volume compendium “designed to
present definitive discussions on points of unemployment insurance law for the field office
determination interviewer.” It is composed of the following titles: Able and Available (AA),
Miscellaneous (MI), Misconduct (MC), Preface (PR), Suitable Work (SW), Total and Partial
Unemployment (TPU), Trade Dispute (TD), and Voluntary Quit (VQ). The guide is not binding, but can be
looked to for guidance. It is available online at http://www.edd.ca.gov/UIBDG/. Where appropriate,
this Guide points to the Benefit Determination Guide for more information on particular topics.
The EDD also administers the State Disability Insurance (SDI) Program and the Paid Family Leave (PFL)
program. See Appendix A for additional EDD resources.
The California Unemployment Insurance Appeals Board (CUIAB)
The CUIAB is an independent adjudicative agency headquartered in Sacramento. It is governed by a
board of seven members (“the Board” or “the Appeals Board”). Five members are appointed by the
3
Governor, one is appointed by the Speaker of the California Assembly, and one is appointed by the
California Senate Rules Committee – and has twelve field offices throughout the state.
When any party involved in an unemployment insurance claim requests review of an EDD
determination, the CUIAB conducts a hearing presided over by an Administrative Law Judge. Parties
have the right to seek review of the Administrative Law Judge decisions and these are reviewed by the
Board, often by rotating three-member panels. The CUIAB decides over 320,000 separate cases per year
– 300,000 cases are decided at the first level of appeal and 20,000 cases are decided at the second level
of appeal.
The UI Code specifically authorizes the Board to consider, decide, and designate as precedential those
cases that contain a significant legal or policy determination of general application that is likely to recur.
The CUIAB, its Administrative Law Judges, and the EDD Director are controlled by these precedents,
except as modified by judicial review. To date, the CUIAB has designated just fewer than 500 decisions
as precedential.9 The full text of all Precedent Decisions are available online at
http://www.cuiab.ca.gov/precedent_decisions.shtm. See Appendix A for additional CUIAB resources.
C. The Role of Employers
The most important role employers play in the administration of the UI system is that of funder. Every
employer pays a net 0.8% FUTA tax to the federal government and also pays state payroll taxes into to
the state Unemployment Trust Fund (UTF) on behalf of each of its employees.10 These contributions are
pooled in the UTF, but an individualized record – called a “reserve account” – is maintained for each
employer.11 Taxes paid into the fund increase an employer’s reserve account whereas payments paid
out to former employees reduce (or “charge”) the reserve account.
Importantly, the tax rate per employee (and thus the total amount of taxes) that an employer must pay
in a given year is based, in part, on the status of its reserve account (i.e. the tax rate is “experience
rated”).12 When few former employees receive UI benefits, the employer’s reserve account is higher,
which results in lower tax rates in future years. Conversely, when many former employees receive UI
benefits, these “charges” lower the reserve account and lead to higher future tax rates.13 This system of
“experience rating” the employer tax rates is analogous to any other type of insurance – the more
claims that are filed against a policy, the higher the premiums.
This system of taxation is supposed to encourage employers to create less unemployment.
Unfortunately for claimants, it has a profound effect on how employers respond to benefit claims: they
have a financial incentive to challenge claims. Some employers go so far as to always argue – as a
matter of policy in every case – that a claimant is ineligible for benefits. They do so knowing that the
policy will result in fewer former employees receiving benefits and, thus, lower tax rates for the
business. An increasing number of employers are now outsourcing their human resource functions to
companies that operate under a policy of contesting all claims for UI benefits regardless of the merits.
Such employer policies and practices are the cause of many unjust disqualifications and the reason why
many unemployed persons face additional hurdles in getting their rightful benefits.
4
Other Employer Responsibilities
In addition to paying state and federal unemployment taxes, employers must abide by several other
statutory requirements regarding the unemployment insurance system.

UI Tax Deductions from Wages. Employers are prohibited from deducting unemployment tax from
an employee’s wages.14 Any agreement whereby an employee agrees to pay these taxes is void.15

UI Benefit Waivers. An employee may be offered severance pay in exchange for releasing various
claims against her former employer. Although many types of claims can be released by signing such
a contract, an employee cannot waive her right to unemployment insurance benefits, even if the
release specifically says she will do so.16

Retaliation. The UI Code prohibits employers from terminating or otherwise discriminating against
employees or job applicants for seeking information from the EDD, cooperating with an EDD
investigation, or for testifying in any proceeding filed pursuant to the UI Code or the Labor Code.17
(Note: This retaliation provision also should protect an employee from retaliation because she filed
for unemployment insurance benefits after becoming “underemployed” due to a reduction in her
work schedule.) An employee who believes that her employer has retaliated against her may file a
complaint with the California Labor Commissioner.18 A 6-month statute of limitations applies.19

Notice Posting. Employers are required to post and maintain a Notice – either “Employee Rights to
UI” (Form DE 1857D) or “Employee Rights to UI and State Disability Insurance” (Form DE 1857A) – in
“in places readily accessible” to all employees.20 Failure to comply with this section by an employer
shall constitute a misdemeanor.21

Notice upon Separation. When an employer discharges,22 lays off, or places an employee on leave
of absence, the employer shall give to the employee the following two notices:
1) Written notice of her unemployment insurance benefit rights by providing the pamphlet "For
Your Benefit, California's Program for the Unemployed" (Pamphlet DE 2320). A copy of this
pamphlet is available online at http://www.edd.ca.gov/pdf_pub_ctr/de2320.pdf. The notice of
unemployment insurance benefit rights shall be given no later than the effective date of the
action;
2) Written notice regarding the change in the employee's status. The notice of change in status
shall be given no later than the effective date of the action and shall contain at a minimum: the
name of the employer; the name of the employee; the social security account number of the
employee; whether the action was a discharge, a layoff, a leave of absence, or a change in status
from employee to independent contractor; and the date of the action.23
Failure to comply with this section by an employer shall constitute a misdemeanor. 24

Right to Employment Records. Employees have the right to inspect their personnel files.25 The
California Labor Commissioner has interpreted this statute to apply to former employees as well as
5
current employees. Employers must also furnish copies of all employment records bearing the
employee’s signature upon request.26
Employers are also required to maintain the following information for each employee, for a
minimum of three years: the employee’s dates of employment, the employee’s hourly rates and the
corresponding number of hours worked by the employee at each hourly rate, when the employee
begins and ends each work period (including meal periods and split shift intervals), total hours
worked by the employee, all deductions, gross wages earned, and net wages earned.27 Upon
reasonable request, this information is to be made available to a former employee for copy or
inspection “as soon as practicable, but no later than 21 calendar days from the date of the
request.”28 Failure to comply within this timeframe entitles a current or former employee to recover
a seven hundred fifty dollar ($750) penalty from the employer.29
6
CHAPTER 2. AMOUNT AND DURATION OF BENEFITS
This chapter provides some basic information about the amount of benefits a claimant is entitled to and
how long benefits will last. (To determine whether a claimant will be eligible for these benefits, see
Chapter 3 “Overview of Eligibility Requirements.”)
A new claim for benefits begins with the submission of a valid application to the EDD. The effective date
of the claim – the Sunday prior to the submission of the application -- establishes the claimant’s Base
Period, Benefit Year, and Waiting Period. 30

Base Period. This is a 12-month or 4-quarter) period ending approximately three to six months prior
to the effective date of a new claim for benefits.31 To identify the precise Base Period for a
particular claim, use the following table:
If the claim is filed in:
January, February, or March
April, May, or June
July, August, or September
October, November, or December
The Base Period is the 12 months ending the previous:
September 30
December 31
March 31
June 30

Benefit Year. This is the 52-week period commencing with the effective date of a new claim for
benefits.32

Waiting Period. A claimant is required to serve a one-week waiting period during which she will not
receive any benefits. The Waiting Period is the first week in which a claimant is otherwise entitled
to benefits; it is normally the first week of a new claim. The Waiting Period is served only once each
Benefit Year.
The Base Period and Benefit Year play a role in determining a claimant’s Weekly Benefit Amount and
Maximum Benefit Amount.
Weekly Benefit Amount (WBA)
Shortly after a claimant submits a new claim for UI benefits, the EDD determines the claimant’s Weekly
Benefit Amount (WBA). The WBA is the fixed amount of benefits that a claimant will receive each week
that she is eligible for full benefits. Under some circumstances a claimant will receive less than her WBA
(e.g. she earned some wages during the week or was not available to work for the full week), but she
will never receive more than her WBA. (For more information about eligibility for benefits and the
circumstances giving rise to a reduction in benefits, see Chapter 3 “Overview of Eligibility
Requirements.”)
This WBA is not need-based. It is based exclusively on the wages paid to the claimant in the highest
grossing quarter of the claimant’s Base Period.33 Only wages derived from covered employment are
considered.
7

Wages Paid. Base Period wages are based on the date (or period) when the wages were paid, not
the date (or period) for which they were earned.34 Since many employers issue paychecks on the
first of the month for work performed in the previous month, and since the Base Period changes
four times per year on the last day of the month, this distinction between when wages were earned
versus when they were paid can make a real difference.

Covered Employment. A limited number of employers and types of employment are excluded from
participation in the UI system. Wages earned in these categories are excluded when calculating a
claimant’s Weekly Benefit Amount. (For more details about covered employment and the various
exclusions, see “Sufficient Base Period Wages in Covered Employment” in Chapter 3.)
To determine a claimant’s exact Weekly Benefit Amount, see the EDD’s three-page Unemployment
Insurance Benefits Table, available online at http://www.edd.ca.gov/pdf_pub_ctr/de1101bt5.pdf. This
table lists “Highest Quarter” wages and the corresponding Weekly Benefit Amounts. The Weekly
Benefit Amount currently ranges from $40 per week (for claimants with a highest grossing Base Period
quarter of $900) to $450 per week (for claimants with a highest grossing Base Period quarter of
$11,675).
Temporary Increase. The American Recovery and Reinvestment Act of 2009 (ARRA), effective February
22, 2009, provides for a temporary $25 per week increase in the Weekly Benefit Amount for all
claimants. This increase, referred to as “Federal Additional Compensation” (FAC), is funded directly by
the federal government, but is added to the weekly benefit checks issued by the EDD. Pending a
legislative extension of the program, the increase is currently available for all claims established prior to
February 28, 2010 and will be paid through August 31, 2010.
Maximum Benefit Amount (MBA)
The maximum amount of benefits payable to a claimant during any one Benefit Year is the lower of

Twenty-six times her Weekly Benefit Amount, or

One-half of her Base Period wages.35
Claimants may collect their benefits continuously or intermittently throughout the Benefit Year. There
are a variety of reasons that a claimant might be temporarily ineligible for benefits during the Benefit
Year, but this does not reduce the Maximum Benefit Amount available to the claimant during the
Benefit Year. (For more information about temporary ineligibility, see “Able to Work” and “Available for
Suitable Work” in Chapter 3.)
To better understand the interplay between Base Period wages and the Weekly Benefit Amount,
consider the claimant with $10,400 in total Base Period earnings, all of which was earned in a single
quarter. Based on this single highest quarter, the Weekly Benefit Amount is established at $400.
However, the Maximum Benefit Amount would be limited to $5,200 (i.e. one-half her Base Period
earnings), thus she would only qualify for thirteen weeks of benefits (at her Weekly Benefit Amount of
$400).
8
The point to remember is that not all claimants will be entitled to 26 weeks of benefits. Those claimants
who had most or all of their Base Period wages in a single quarter will often qualify for fewer weeks.
Taxes
UI benefits are not subject to state income tax. They have traditionally been subject to federal income
tax, but pursuant to the American Recovery and Reinvestment Act of 2009 (ARRA), the first $2,400 in
unemployment benefits are exempt from federal taxes. The provision applies for tax year 2009 only,
and benefits over $2,400 remain subject to federal income tax.
Claimants may elect to have the federal taxes deducted from the biweekly benefit checks. Alternatively,
they can receive the entire benefit amount and are then responsible for paying the taxes later.
During the last week of January, the EDD will mail tax form 1099G to claimants for the prior calendar
year. The tax form will report the total taxable unemployment compensation issued by the EDD and is
to be used when filing a federal income tax return. (For more information regarding taxes and the Form
1099G, see the EDD’s “FAQ for 1099G,” available online at
http://www.edd.ca.gov/Unemployment/FAQ_for_1099G.htm).
9
CHAPTER 3. OVERVIEW OF ELIGIBILITY REQUIREMENTS
This Chapter of the Guide is designed to provide a comprehensive overview of a claimant’s eligibility for
UI benefits. Eligibility issues arise at different stages in the life of a claim for UI benefits, so advocates
are encouraged to review the relevant section(s) of this chapter in conjunction with the chapters that
follow (which chronicle the various steps and stages in the lifecycle of a UI claim).
In practice, “eligibility” for UI benefits is divided into two stages.
First, following the claimant’s submission of a new claim for benefits, the EDD makes an initial eligibility
determination. This initial determination is based principally on three threshold requirements: the
claimant must 1) have earned sufficient Base Period earnings in covered employment, 2) be in
“satisfactory immigration status,” and 3) have separated from her most recent employment through no
fault of her own.
Second, following the initial eligibility determination, the EDD will certify a claimant’s ongoing eligibility.
In order to receive benefits for any given week, the claimant must certify to the EDD that she 1) is
physically and mentally able to work, 2) is immediately available for suitable work, 3) did not refuse an
offer of suitable work, 4) is actively seeking work, and 5) is unemployed or underemployed.
The legal standards for these eight principal eligibility requirements – three threshold requirements and
five ongoing requirements – are discussed in the following sections.
A. Sufficient Base Period Wages in Covered Employment
In order to be eligible for UI benefits, a claimant must have been paid 1) sufficient Base Period wages 2)
while working in covered employment and 3) with lawful immigration status.
Sufficient Base Period Wages
“Sufficient Base Period Wages” is a minimum threshold amount of wages that must have been paid to a
claimant in the highest grossing quarter of the claimant’s Base Period. (For information regarding how
to determine a claimant’s Base Period, what constitutes the highest grossing quarter of Base Period
wages, and how the highest grossing quarter relates to a claimant’s Weekly Benefit Amount, see
Chapter 2 “Amount and Duration of Benefits.”)
In order to meet the “Sufficient Base Period Wages” requirement, a claimant must have:
1) been paid at least $1,300 in the highest grossing quarter of her Base period, or
2) been paid at least $900 in the highest grossing quarter of her Base Period and have gross wages for
the entire Base Period of at least 1.25 times the highest grossing quarter.
For example, to qualify via the second option, if a claimant was paid only $1,000 in her highest Base
Period quarter, her total base-period wages must be at least $1,250, which is 1.25 times $1,000. This
10
means the claimant must have been paid at least $250 in the other three Base Period quarters
combined. This minimum level of Base Period wages entitles the claimant to the minimum Weekly
Benefit Amount. Claimants with higher Base Period wages will be entitled to higher Weekly Benefit
Amounts (and higher Maximum Benefit Amounts).
Covered Employment
For wages to be credited as Base Period earnings, they must have been earned in “covered
employment.” Workers are engaged in covered employment if they work for an employer who is
required to pay into the Unemployment Trust fund on behalf of its employees. Covered employment
includes most services performed as an employee for any form of wages. However, there are certain
categories of workers who are excluded because their employers are not required to pay into a reserve
account on their behalf.36
Excluded categories of employment include, but are not limited to:

“Domestic” or “household” services in a private home (e.g. cooks, housekeepers, babysitters,
janitors, caretakers, gardeners, chauffeurs, etc.37) unless the employer paid more than $1,000 to any
domestic employee in any calendar quarter in the current or preceding calendar year)38;

Employees of close family members: parents (including stepparents), spouses, and children
(including stepchildren)39;

Federal workers40;

Employees of churches and other primarily religious organizations41;

Newspaper delivery workers under the age of eighteen42;

Students (and their spouses) employed by schools, colleges and universities43;

Employment outside the United States, unless the employer’s principal place of business is in
California, or the employer is a California resident or a corporation organized under California
laws44;

Students under the age of 22 in work experience programs45; and

Hospital workers who are either students46 or patients.47
Most of these categories (and several other categories that are not listed) have special rules and
exceptions. Claimants should check the Unemployment Insurance Code to see if they may have worked
in excluded employment.
Covered employment typically does not include self-employment or services performed as a bona fide
independent contractor.
Lawful Immigration Status
11
Only those Base Period wages earned as a United States citizen, United States national, or “lawful” alien
may serve as the basis for UI eligibility.48 Lawful aliens include aliens lawfully admitted for permanent
residence, lawfully present for the purpose of working, or permanently residing in the United States
under the color of law (commonly referred to as PRUCOL).49
Even if a worker is currently authorized to work in the United States (an independent requirement,
discussed in the following section), no wages earned when previously unauthorized can serve as
qualifying Base Period earnings. An alien has the burden of proving the extent to which she performed
Base Period services while in a lawful status.50
For more information regarding this topic, see the EDD’s Benefit Determination Guide, Miscellaneous
50, subd. (B).
Disagreement about the EDD’s Computation of Base Period Earnings
There are a variety of reasons why a claimant may disagree with the EDD’s computation of her Base
Period earnings. The EDD provides a process for complaints to formally dispute the computation. (For
more information regarding this process, see “Base Period Wages: Challenging the EDD’s Computation”
in Chapter 5.)
B. Satisfactory Immigration Status
In order to be eligible for benefits, a claimant must declare that she is a United States citizen, United
States national, or alien in “satisfactory immigration status.”51 “Satisfactory immigration status” means
that the claimant is lawfully residing in the United State and is authorized to work.52
The EDD is required to determine, as a condition of eligibility for UI benefits, the citizenship status of all
claimants.53 For a claimant who is neither a United States Citizen nor a United States national, the
department is required to verify with the INS that the claimant’s citizenship is satisfactory, based on
documents presented by the claimant.54
Such verification shall be either 1) through an automated system (known as the Systematic Alien
Verification for Entitlements system or SAVE) utilizing the claimant’s alien registration or file number or
2) by the department sending a photocopy of the original document(s) the claimant submits as evidence
of her immigration status to the INS for inspection.55
The EDD shall provide a claimant who declares that she is in a satisfactory immigration status, but who
presents no documents when filing her claim, a “reasonable opportunity” to present such documents
for INS verification.56 “Reasonable opportunity” is 21 calendar days.57 The EDD shall not delay, deny,
reduce, or terminate the claimant’s eligibility pending any period of reasonable opportunity or the INS’s
verification response.58
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If the EDD concludes that the claimant is not in satisfactory immigration status, it shall determine the
claimant ineligible for benefits or re-determine the claimant’s eligibility with respect to any week for
which the EDD had paid benefits pending immigration verification.59
50, subd. (C).
C. No-Fault Separation from Most Recent Work
In order to be eligible for benefits, a claimant must have separated from her most recent employer
through no fault of her own.60 This requirement is typically the most contentious and is frequently the
reason claimants are denied benefits. For these reasons, the EDD closely analyzes this requirement.
Most Recent Work
Although a claimant’s benefits paid by the EDD are charged to the account(s) of the claimant’s “Base
Period” employer(s), eligibility for benefits is based on a claimant’s separation from her most recent
work.61 “Most recent work” refers to the job from which the claimant was separated immediately
before applying for benefits, even if she held that job for just one day.62
A claimant’s most recent work does not need to be in covered employment, as it does in determining
the base-period wages.63 (For more information regarding covered employment, see “Sufficient Base
Period Wages in Covered Employment,” above.) However, the most recent job must be services
performed as an employee for wages and not for a share of the profit.64 Thus, the definition of most
recent work excludes self-employment and independent contracting,65 unless the claimant has
affirmatively elected coverage under Unemployment Insurance Code section 708.66 For a claimant who
last worked as an independent contractor, the EDD will analyze her separation from her last job as an
employee, even if that job was months before she applied for benefits.
Presumption in Favor of the Claimant
A worker applying for benefits is presumed to have separated from her most recent employer through
no fault of her own unless that employer gives written notice to the contrary to the EDD setting forth
facts sufficient to overcome that presumption.67 After receiving notice of a claim, the most recent
employer is provided a 10-day window in which to submit facts to the EDD about the claimant’s
eligibility.68 If the employer does not submit any facts or the facts submitted do not show the claimant
to be at fault, then a rebuttable presumption is triggered, placing the burden of challenging the
claimant’s eligibility on the employer.69 However, this presumption is rebuttable and can be overcome
even if the employer presents no information to EDD (i.e. facts disclosed by the claimant can render her
ineligible).
If the presumption is triggered at the initial determination stage, it is re-triggered on appeal whether or
not it was initially rebutted.70
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Types of Separations
Most separations from work can be characterized as either a discharge or a voluntary quit. These two
types of separation give rise to very different eligibility standards for UI benefits; thus the EDD will look
carefully at the facts of the separation to determine the moving party (and thus how to categorize, and
evaluate, the separation). Other types of separations that give rise to their own standard for eligibility
include: “constructive” quits, layoffs, and job losses due to trade disputes or strikes.
Eligibility for UI benefits under each of these scenarios is discussed here.
Quit or Discharge: Who was the Moving Party?
If it is unclear whether a claimant quit or was fired, the EDD will look carefully at the facts of the
separation to determine who was the “moving party” to the separation. Generally, the moving party is
the party (either the employer or employee) whose actions determined that the employment
relationship would end. How the employer or the claimant labels the separation is not controlling, so
even if the employer and employee both agree to call the separation a discharge, layoff or quit, the EDD
will still examine the actual circumstances and make its own determination.71
The employer is the moving party in the following circumstances; thus these separations will be
characterized and evaluated as discharges:

Traditional Discharge. The employer refuses to allow the claimant to continue working despite the
fact that she is ready, willing, and able to work.72

Quit in Lieu of Discharge. The employer tells the worker that she will be fired if she does not quit, or
the employer allows the worker to characterize a termination as a quit to avoid jeopardizing future
job prospects.73

Discharge Before the Effective Date of Resignation (Without Pay). The employer discharges the
worker before the intended resignation date and does not pay the employee through that intended
resignation date.74

Leaving the Day of (or Shortly After) the Discharge Date. The employee leaves early on the day that
her employer said would be her discharge date,75 or works a few additional hours or days after the
discharge date.76
The employee is the moving party in the following circumstances; thus these separations will be
characterized and evaluated as quits:

Traditional Quit. The employee leaves work while work is available and the employer is willing to
allow her to work.77

Quit in Anticipation of Discharge. The employee quits because she believes that she will soon be
discharged.
14

Discharge Before the Effective Date of Resignation with Pay. The employee provides notice of her
intention to quit on a future date and the employer discharges her in advance of the resignation
date, but still pays her through the intended resignation date.78

Resignation Before the Effective Date of Discharge or Layoff. The employee leaves the job before
the effective date of a discharge or layoff.79

Quit With Offer to Continue Working. The employee quits, but offers to work until a replacement is
found (even if the employer accepts her offer, but then discharges her before finding a replacement
and without paying her through the date a replacement is found).80
There is one limited circumstance where the EDD is incapable of characterizing a separation as either a
quit or a termination: when the employee reasonably and sincerely believes she was terminated and her
employer reasonably thought the employee voluntarily quit.81 This happens infrequently, but these
types of cases are characterized as mutual mistakes.
For example, a mutual mistake might occur if an employer yells at an employee and takes away her keys
and employee ID, which prompts the employee to say “I’m leaving” and to walk off the job, never to
return. The employer may have been intending to merely suspend the employee (only to interpret the
employee’s action as a voluntary quit), whereas the employee may have interpreted the employer’s
actions as a termination. So long as each party’s belief is reasonable, mutual mistakes are considered
no-fault separations making the claimant eligible for benefits.82
1. Discharges
To be eligible for benefits, a discharged employee must have been discharged for a reason other than
misconduct.83 A claimant was discharged for misconduct if all of the following elements are present:84

A material duty owed by the claimant to the employer. A “material” duty is one that is inherent in
and properly part of the job. For example, a bartender owes the employer a duty to report to work
on time, but does not owe the employer a duty to serve minors in violation of the law.

A substantial breach of that duty. “Substantial” means that the incident must be more than a trivial
deviation from the norm. For example, reporting to work one minute late would not be substantial,
but coming in three hours late would be substantial.

A breach that demonstrates either willful or wanton disregard for the duty. This means that the
employee committed the act of misconduct knowingly or intentionally or in reckless disregard of any
potential consequences.

A breach that tends to harm the business interests of the employer. This could be anything from
making a business look bad in front of customers to sabotage of product quality.
15
The legislatively declared public policy of the state requires the extension of UI benefits to persons
“unemployed through no fault of their own.”85 Accordingly, fault is the base element to be considered
in interpreting and applying section 1256, and the test for misconduct is essentially volitional.86
The burden of proving all four elements of misconduct falls on the employer.87
Over the long life of California’s UI system, the Legislature, the Courts, the EDD (via regulations), and the
CUIAB (via Precedent Decisions) have all played a role in establishing that discharges for certain specific
reasons typically do or do not amount to misconduct, as defined above.
Discharges that typically do not Constitute Misconduct
It is unlikely that employers will be able to establish that discharges under the following circumstances
rise to the level of misconduct:
Poor performance/failure to meet the employer’s standards. Poor work performance, inefficiency,
ineptitude, or failure to meet an employer’s expectations is normally not misconduct.88 Although an
employee may be uncomfortable claiming that she was fired for ineptitude, she should be reminded
that her employer is entitled to its opinion and the fact that she was fired for her performance should
mean that she will be awarded benefits.
Poor work performance will constitute misconduct in cases in which an employee shows an intentional
disregard of the employer’s interests. If the claimant intentionally or knowingly fails to perform, is
grossly negligent, or repeatedly performs negligently after prior warnings, she will be deemed to have
committed misconduct.89
Good faith error in judgment or ordinary negligence in a single incident. A single incident of ordinary
negligence or a good faith error in judgment is normally not misconduct.90 The isolated instance
defense can be used for a first-time offense, involving conduct that was unusual, uncontrollable or
motivated by a momentary lapse in good judgment. A claimant will not be able to rely on this defense if
she has been repeatedly warned by the employer about similar conduct91 or if the particular claimant
could be reasonably held to a higher duty of care (e.g. an airline pilot).92
Employer’s definition of misconduct (“employer confusion”). Many charges of misconduct made by
employers involve conduct that is not disqualifying misconduct, as defined by the Unemployment
Insurance Code. This often results because employers are confused and do not know the difference
between their internal definitions of misconduct or job performance standards, and misconduct under
the law.
Offense was not work connected (off-duty conduct). Conduct by an employee away from the work site
during non-working hours is generally not considered misconduct, even if that conduct is unlawful.93
However, if the claimant owes a higher duty of care because of her particular position or employer, an
off-duty crime can be considered misconduct if it tends to harm the employer’s interests.94
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No causal connection between misconduct and termination. Even in cases where a claimant committed
an act of misconduct, she may still qualify for benefits if she can show she was actually discharged for
another reason. 95 Claimants can use this defense in cases where an intervening event or act reduces
the connection between a prior act of misconduct and the termination.
Employer condones the offense. If an employer condones employee behavior by failing to reprimand or
discharge the employee immediately, the employee may avoid disqualification for misconduct.96 The
condonation defense may be used when a significant amount of time passes between an act of
misconduct and the termination. However, if the employer has a good reason for taking its time to
terminate the employee, the condonation defense is inapplicable.97 For example, if the employer did
not know about the misconduct or its consequences until long after the incident, the EDD will not
consider the act to have been condoned.
In some cases, a claimant can argue that the condonation defense applies because the employer
accepted similar behavior from other employees without a reprimand.
Discharges that Frequently Constitute Misconduct
Insubordination. Insubordination is an employee’s conduct that intentionally disregards the employer’s
interests and willfully violates a standard of behavior that the employer may rightfully expect.98 As with
misconduct, an employer’s charge of insubordination has to meet the legal definition. Equating
insubordination with misconduct generally requires multiple acts with prior warnings but can result
from a single act if that act is particularly damaging to the employer’s interests.99
Insubordination can include refusing to comply with orders, exceeding authority, making a statement
that damages the employer, or directing profane or derogatory language toward the employer. Each of
these types of insubordination is discussed here.

Disobedience of an order: This will be considered insubordination only when it is disobedience of a
reasonable order, which would not include, for example, an order that is outside the scope of the
job, calls for illegal acts, or endangers co-workers.100 The reasonable order must come from the
employer or a supervisor, not from a co-worker or another person whose authority is unclear, to be
considered insubordination.101 Although not insubordination, a refusal to reasonably cooperate
with co-workers could be misconduct.

Exceeding authority: An employee exceeds authority when she commits an act going beyond the
authority expressly granted by the employer or beyond the authority implicitly created by the
employer’s failure to object to a particular type of conduct.102 Acts exceeding authority will
generally be excused where the act was necessary to prevent damage to the employer’s interests
and it was impractical to check with the employer or if the employee’s act was a good faith error in
judgment.103

Disputing authority: This is defined as statements or remarks made by an employee that damage or
tend to damage the employer’s interests.104 Damage occurs to the employer when the manner in
17
which an employee disputes with the employer or its representative or the time and place of the
dispute is inappropriate, especially if the employee had been warned.105 However, differences of
opinion, disagreements, and misunderstandings are generally not misconduct.106

Ridiculing authority: This will be considered insubordination unless it is found to be an isolated
instance of joking or an error in judgment with no willful element.

Directing profane language at employer: To determine whether the use of profanity constitutes
misconduct, one must examine the normal practices of the place of business and the circumstances
under which the remarks were made.107 A single offensive remark can fall within the category of a
mere error in judgment.108
Absenteeism and tardiness. Absenteeism and tardiness, two of the more frequent misconduct charges,
are handled in the following manner:

Absence or tardiness caused by illness: This is not misconduct if the employer was informed or if
there was a compelling reason for not informing the employer.109

Absenteeism for reasons other than illness: If the employee is given approval for an absence, either
in advance or upon notifying the employer of the absence, that absence is not misconduct.110 If the
employee does not have prior approval for the absence, the absence is not misconduct if it was an
isolated incident for the first time due to a good faith error in judgment.111 Alternatively, the
absence is not misconduct if the employee had a real, substantial, and compelling reason for the
absence,112 and the employee notified the employer of the absence and her reasons for being
absent (presuming such notice was feasible).113

Tardiness: Repeated unexcused tardiness after multiple warnings is disqualifying misconduct.114 A
single incidence of unexcused tardiness is misconduct if the employee has other violations of
employer standards that include reprimands115 or if the single tardiness causes substantial injury to
the employer.116 However, if there are no prior warnings, or if there is a compelling reason for the
last incident of tardiness (regardless of other past offenses), tardiness will not be considered
misconduct.117
(For information regarding absence due to incarceration, see “Constructive Quits” below.)
A dishonest act or statement. This is generally misconduct, even without any previous warnings or a
specific employer rule.118 But good-faith misunderstandings, as judged from the perspective of a
reasonable person under the circumstances, are not misconduct.119 Also, if the employer knew that the
employee or others engaged in the particular dishonest acts and did not take steps to reprimand, the
claimant can argue that the employer condoned the dishonesty120 (For more information, see
“Employer condones the offense” above.)
Misappropriation of property (including funds). Stealing property belonging to the employer121 or coworkers122 is misconduct, regardless of the value of the stolen item. If the employer shows that the
worker was not authorized to possess its property and the worker cannot provide a reasonable
18
explanation, she has committed misconduct.123 The standard of proof is a “preponderance of the
evidence,” rather than the criminal standard of “beyond a reasonable doubt.” Therefore, a claimant
need not be found “guilty” in a criminal proceeding to be ineligible for benefits.124 On the other hand, a
mistake, such as a good-faith failure to handle cash according to the employer’s written rules, is not
misconduct.125
Lying during the job application process. This is misconduct, 126 unless a law prohibited the employer
from asking the question in the first place127 or unless the inquiry was beyond the scope of what is
“proper and necessary” to protect the employer.128 Slight exaggerations that are not clearly false or
intentional are not misconduct.129
Discourtesy toward customers or the public. This is misconduct if the employee was previously warned
or reprimanded, and if the employee has the ability to control the behavior. An isolated instance is not
usually misconduct, unless the employee is extremely rude. 130
Annoying, or failing to get along with, co-workers. This is misconduct if the employee had been
previously warned or reprimanded. Absent prior warning or reprimand, it is not misconduct.131
Violence on the job. This is misconduct if the employee either started the fight, regardless of her
reasons for doing so, or provoked it.132 Fighting on the job is not misconduct when the employee is
defending herself against an attack that she did not begin or provoke.133 Threatening other employees
with physical harm is misconduct,134 unless the worker whom the threat was made against considered
the threat to be a joke or minor and inconsequential.135
Sleeping on the job. This is misconduct unless it was a brief first-time offense that was not prepared for
and not done deliberately, and that did not endanger others. 136 Additionally, the employee is more
likely to defeat a misconduct charge if she did not realize that she was tired or could not have prevented
her tiredness, including by requesting sick leave.137
Alcohol or illegal drug use. This is ordinarily misconduct if it is engaged in at work and usually not
misconduct if engaged in off duty.

On duty: Consuming alcohol or illegal drugs at work or coming to work while under the influence is
such a serious breach of an employee’s duty to remain sober on the job that even a single isolated
incident is misconduct.138 On-duty illegal drug and alcohol use is not misconduct only when the
employer permitted or condoned it, or, in the case of alcohol use, when such use is common to the
occupation, like bartending.139
A claimant who suffers from alcoholism or drug addiction is disqualified from receiving benefits even
if, because of her addiction, she has an irresistible compulsion to consume intoxicants (i.e. she
cannot overcome the willfulness element of misconduct by arguing that her addiction prevents her
from abstaining from drinking or using drugs.)140 However, such a claimant can purge her
disqualification by enrolling in a treatment program and certifying her ability to return to work.141
19

During breaks or lunch periods: Taking illegal drugs while on break is misconduct.142 Drinking
alcohol on a break, however, is not misconduct, unless the employee had notice of a specific
employer rule forbidding it or was previously warned.143

Off the job: Alcohol or illegal drug use off the job is not misconduct,144 as long as it does not
substantially affect the employee’s ability to work, especially in dangerous jobs.145 This general rule
applies even if the employer discovers the employee’s illegal drug use through a drug test.146 But if
the employee owes a higher duty of care because of her particular position or employer, off-duty
use or possession may be misconduct.147
2. Quits
To be eligible for benefits, a claimant who voluntarily quit her most recent job must satisfy the following
two requirements: the claimant must have 1) quit with good cause and 2) taken reasonable steps, as
appropriate, to solve the problem and keep the job.
Requirement #1: Good Cause
Good cause is a “real, substantial and compelling reason of such nature as would cause a reasonable
person, genuinely desirous of retaining employment, to take similar action.”148 Such reasons may
include personal circumstances,149 such as the need to care for one’s children,150 or work-related
reasons, such as unsafe working conditions.151
If the employee has more than one reason for quitting. An employee will be found to have quit with
good cause as long as one of her reasons constitutes good cause and that reason was a “substantial
motivating factor” in her decision to resign.152
Good-cause reason must be the employee’s actual reason. Although an investigation of the
employment relationship might uncover a good-cause reason for quitting, such as an employer’s failure
to pay overtime, a claimant is not eligible for benefits unless that reason actually motivated her to
quit.153 Additionally, the EDD may not believe a claimant’s given reason was her actual motivation for
quitting if she waits too long to resign after the given reason first arises.154
Requirement #2: Reasonable steps to preserve employment
Even if a good cause reason exists, a claimant usually will not be eligible for benefits unless she takes
reasonable steps to preserve her employment by trying to resolve the problem before quitting.155
Failure to make such efforts “negates” good cause. Generally, reasonable steps means that an
employee discussed the problem at least once with her employer and gave her employer a reasonable
opportunity to fix the problem. Although she must seek some solution short of leaving her job,156 she
need not exhaust all possible steps.157 In some cases, the reasonable steps an employee has to take may
not even involve the employer; for example, an employee who is forced to quit because she is the only
caregiver for her child will negate good cause if she does not explore other reasonable options, such as
day care.
20
Leaves of absence and transfers. In most cases, the employee negates her good-cause reason for
quitting if she does not request and/or accept a leave of absence or transfer that would resolve the
problem.158 However, failing to request a leave or transfer may be excused if the employee does not
know about the employer’s policy or the employer would not have granted a leave of absence.159
Additionally, rejecting a leave of absence or a transfer160 may be excused if the employee shows good
cause for doing so. For example, rejecting a transfer that would lead to a three-hour round-trip
commute and an increase in both public transportation and child care costs is good cause.161 Also,
employees can reject leaves of absence that are not bona fide. A leave policy is bona fide if both parties
contemplate that the employment relationship is continuing, that the employee will return after the
leave and that the employee will receive more consideration than preference in hiring but not
necessarily a guarantee of reinstatement.162
Exception for emergencies. If the situation is an emergency, the employee does not need to make
reasonable efforts to try to keep her job before resigning. An emergency at the work site means that
the worker had to immediately leave because of a substantial and immediate threat of serious injury or
illness, such as a fire or a bomb threat.163 An employee also can quit without seeking a leave of absence
for family emergencies, such as visiting a parent who suddenly has only a short time to live.164
An employee who quits is presumed to have quit with good cause unless her most recent employer
submits facts, in writing, to the EDD that are sufficient to overcome the presumption. If the facts the
employer submits do not rebut the presumption, the employer has the burden of proving that the
claimant quit without good cause.165 This presumption in favor of the claimant is retriggered if the claim
goes to appeal. If the information that the employer provides at the initial determination stage is
sufficient to rebut the presumption in favor of the claimant, the claimant (as the party with knowledge
of her reasons for quitting) has the burden of proving good cause.
Quits That Are Typically “With Good Cause”
Relocating for a partner or spouse. Employees moving their residence to maintain their relationship
with their spouse,166 registered domestic partner167 or fiancé/fiancée to whom “marriage is
imminent”168 have good cause to quit, as long as the relocation would result in an unreasonable
commuting distance from their job169 and a transfer was not available.170 (For more information, see
“Leaves of absences and transfers” above.) Furthermore, a relocating employee might be able to
prevent her employer from challenging her benefits by advising the employer that its reserve account is
not subject to charges when the reason for the resignation is to relocate for a spouse, domestic partner
or fiancé/fiancée.171
Workers moving on behalf of a boyfriend, girlfriend, or unregistered domestic partner do not have good
cause,172 unless they have children with their partner and share a household.173
Caring for family members. Quitting to care for one’s minor children is good cause if there is no
reasonable alternative caregiver.174 Resigning to care for another family member is good cause only if
the claimant has no other choice because the person is sick and needs help with personal care or
21
household chores.175 It is not good cause to quit in order to provide solely emotional support for the ill
family member, 176 unless that person is in danger of death. 177
The claimant normally must seek a leave of absence or pursue other reasonable alternatives before
resigning to care for a family member, unless the situation is an emergency.178 Note: If a claimant quits
with good cause to care for a family member, she will nevertheless be ineligible to receive benefits as
long as providing such care prevents the claimant from being available to work. (For more information,
see “Available for Suitable Work” below.) Once the claimant’s care obligations have ended, however,
she will be eligible for unemployment insurance.
Domestic violence. Quitting to protect one’s self or children from a threat or act of domestic violence is
normally good cause.179 The EDD may (but often does not) want the claimant to provide a copy of the
restraining order, police report, or other information to verify the abuse or threat. 180 Additionally, the
claimant must show that a leave of absence or a transfer either was not available or would not have
protected her or her children because, for example, the abuser has violated a restraining order.181
If an employee quits due to domestic violence, the employer’s reserve account is not usually subject to
charges, so the employer should be less likely to challenge her benefits.182
Pregnancy. A pregnant employee who quits for her fetus’s or her personal health usually have good
cause if the evidence, such as a doctor’s advice or prior medical history, establishes that she had to do
so and a leave of absence was not available.183
A reasonable and good faith fear for one’s health. This ordinarily constitutes good cause.184 For
example, a claimant who feared exposure to lead at her workplace had good cause to quit,185 and
another worker who resigned after complaining about a workplace that was so cold her feet and hands
were numb also had good cause to quit.186 Claimants usually must have some objective basis for their
fear, such as a doctor’s advice,187 or the aggravation of a known, specific health problem.188 If a claimant
did not go to a doctor before quitting, she should consider going as soon as possible to try to get a letter
stating that, in the doctor’s opinion, her condition or symptoms required that she quit.
To avoid negating good cause, the claimant must seek a transfer or a leave of absence, if either of those
would resolve the problem,189 unless the situation is an emergency.190
If the claimant had a pre-existing health problem and knew the work involved a situation that might
aggravate it when she accepted the job, her leaving the job because of the health condition probably
will not be good cause.191
Unsafe working conditions. These amount to good cause as long as they are greater than the ordinary
risks that are inherent in the nature of the occupation or are more hazardous for the claimant in
particular because of her unique circumstances.192 For example, although an office building windowwasher accepts the inherent dangerousness of her occupation, she has good cause to quit if the
condition of her employer’s equipment makes her job riskier than others in the industry or violates the
law.
22
The employee must ask the employer to correct any hazards before quitting,193 unless the situation is an
emergency, defined as circumstances requiring immediately leaving because of a “substantial and
immediate threat of serious injury or illness.” 194 Serious illness or injury means a risk “of sufficient
gravity to require immediate emergency medical treatment and pose a danger of probable loss or
substantial impairment of a member of the body, or any degree of permanent disability, or death.”195
Intolerable working conditions or abusive supervisors. Working conditions that are so onerous as to
threaten the employee’s well-being, or actions of a supervisor that are particularly harsh and
oppressive, amount to good cause.196 For example, repeatedly criticizing an employee in front of
customers in such a sarcastic manner that the employee flees in tears is harsh and oppressive197
Working conditions that are so stressful that they cause physical symptoms, such as insomnia or a
nervous disorder, are also probably onerous. On the other hand, ordinary job dissatisfaction or a
disagreement with a supervisor is generally not good cause.
The employee usually must try to improve the working conditions or the situation with the abusive
supervisor by raising the issue with the employer and giving the employer an opportunity to fix the
problem before resigning. The employee does not have to complain, however, if the employer cannot
fix the problem or if the employee knows that the employer has refused to correct the working
conditions when other employees asked.198
Illegal discrimination or harassment. An employee subject to unlawful discrimination or harassment
based on race, color, religious creed, national origin, ancestry, disability, medical condition, marital
status, sex, age, sexual orientation or any other protected basis has good cause to quit.199 However, an
employee probably does not have good cause to quit merely because she reasonably believes the
employer’s actions were discriminatory; she must be prepared to prove to the EDD or CUIAB that her
employer’s conduct was, in fact, illegal.200 Because the unemployment benefits process does not involve
discovery or a lengthy factual investigation, in practice the claimant must be able to credibly detail the
employer’s conduct, give specific examples of discrimination, and explain her basis for believing the
employer took that action to discriminate and not for some other legitimate reason (such as her poor
work performance).
If the violation is unintentional, the employee must give the employer a chance to fix it,201 but, if the
violation is intentional and persistent, the employee does not need to make reasonable efforts to
remedy it before quitting.202 In cases of sexual harassment, the employee need not take steps to try to
keep her job if such steps would be futile.203 This standard, which specifically allows the claimant to
assert that any reasonable steps would be futile, is less demanding than what is required in most
situations to avoid negating good cause.
Duties outside the scope of employment. An employee who quits because the employer imposed duties
beyond those customary to her occupation has good cause if the duties cause undue hardship or are
unreasonable.204 Situations that are unreasonable include:

The duties amount to a substantial (e.g. threefold205) increase in the employee’s workload.206
23

The duties are beyond the employee’s physical ability or skills.207

The duties are demeaning in light of the employee’s occupation or status.208 For example, a hand
decorator for a pottery company had good cause to quit after enduring intolerable conditions that
culminated in being ordered to clean the bathroom.209

The duties are imposed to abuse or harass the employee.210
The employee must try to resolve the problem with the employer before quitting, such as by asking for
help with the workload, unless she knows that the employer has refused to correct the problem when
co-workers asked to have it fixed.211
Illegal or unethical orders. An employee has good cause to quit if she is required to engage in immoral,
dishonest, illegal, or unethical acts.212 For example, a salesperson who is required to give false and
misleading sales pitches may have good cause to quit. However, before quitting, the employee must
discuss her objections with the employer and give the employer an opportunity to permit her to avoid
the objectionable tasks or otherwise fix the problem.213
Fraud or misrepresentation in employment agreement. An employee generally has good cause to quit if
the employer substantially breaches the employee’s contract or substantially misrepresents the pay
rate, duties, hours, or working conditions of the job when the offer is made. The employer must
misrepresent a material term of employment, not a trivial term or incidental agreement. 214 If the
misrepresentation concerns job duties, the employee must try out the job for a brief period to avoid
negating good cause.215
Illegal withholding of wages or other Labor Code violations. An employee generally has good cause to
quit if the employer has no lawful reason for withholding wages216 or is otherwise violating the Labor
Code, such as by repeatedly paying wages late or with bad checks.217 The employee does not have good
cause to quit if there is a good-faith dispute over whether the wages were actually due, or if the
employer paid late or with a bad check one time and promptly paid when notified of the mistake.218
To avoid negating good cause, the employee must notify the employer that the wages are due or
otherwise discuss the Labor Code violation with the employer.219
Substantial reduction in pay rate and/or job downgrade. If an employee’s rate of pay is substantially
reduced, the employee normally has good cause to quit. A “substantial” reduction in the rate of pay
usually means a reduction of at least 20 percent.220 If the employer reduces the employee’s pay rate
less than 20 percent, but also downgrades her position, the employee may have good cause if some of
the following factors are met:

She has good prospects for getting a job with another employer with wages commensurate to her
pay rate before the reduction.221

The job that she may be able to secure requires skills that are comparable to her position before the
job downgrade.222
24

The distance and cost of commuting make accepting the pay reduction/job downgrade difficult.223

Accepting the pay reduction/job downgrade would cause her to lose benefits, such as seniority or
recall rights, or opportunities for advancement.224
A mere change or reduction in workdays, shift times or hours is ordinarily not good cause, even if the
changes result in a net reduction in pay.
Choosing a layoff under a collective bargaining agreement. A unionized worker who chooses to be laid
off in place of an employee with less seniority (also called “bumping”) has good cause to quit.225 If the
situation is not governed by a collective bargaining agreement, however, the EDD will analyze a worker’s
decision to take a layoff over a pay rate reduction or job downgrade as described above.
Substantial transportation or commuting difficulties. These may amount to good cause, depending on
the travel time and distance of the employee’s commute, as compared with local commuting
practices,226 and the costs relative to the employee’s wage.227 For example, a low-wage worker
generally will have good cause to quit if her commute is increased from 15 minutes to an hour and a half
with an increase in transportation costs, such as the addition of a $2 bridge toll, but this same commute
may not be good cause for a higher paid worker who works in a community where long commutes are
common and who can easily afford the extra cost.
The employee also must show that there were no other reasonable alternatives to get to work.228
Definite offer of a substantially better job. Quitting to accept a definite job offer (e.g. a job with a start
date229), where the subsequent job falls through, is usually good cause.230 The new job must be
“substantially better,” assessed by considering all the factors that influenced the claimant’s decision to
accept the new job, including relative pay, location and permanency, opportunities for advancement,
required skills, seniority rights, and working conditions.231 An increase of 10 percent in pay and benefits
is normally considered substantial, but, even with a smaller pay increase, the job may still be
substantially better if other factors are present. For example, a job with a 5 percent pay increase,
regular eight-hour shifts and a much shorter commute would be substantially better than a job with
varying shifts and a 40-minute round-trip commute. Also, a permanent or a full-time job is always
substantially better than a temporary or part-time job, even without a pay rate increase.232 As explained
below, quitting merely to search for a new job is usually not good cause.
Planning to take a short amount of time off between the jobs does not negate good cause.233 However,
when the new job falls through, the employee must ask for her old job back or otherwise show that her
former employer would not have rehired her to avoid negating good cause.234
Religious beliefs or other conscientious objections. An employee who quits based on a conscientious
objection to the work has good cause if she can show all of the following:

The objection must be bona fide and not a means of avoiding work,235
25

The work or working conditions must have a direct, rather than an indirect or incidental, effect on
her beliefs, and236

She must have been unaware of the objectionable aspects of the work when she was hired or she
must show that her objection arose later.237 For example, good cause would not exist if a waiter
knew, at the time she was hired, that she would have to sell alcohol in violation of her beliefs but
took the job anyway.
Claimants who quit because of a religious objection also must show that their religious group expressly
bans its members from engaging in the objectionable work.238 For example, good cause to quit would
exist if a restaurant started selling liquor, which was expressly forbidden by a waiter’s religious beliefs,
and the restaurant chain would not transfer the waiter to a location that did not serve alcohol.
In all of the cases involving moral or religious objections, the employee must seek other ways to resolve
the problem, including seeking a transfer, before quitting.239
Quits That Are Typically NOT “With Good Cause”
Job dissatisfaction or a disagreement with management. These do not normally amount to good cause
to quit, 240 unless the situation is objectively intolerable or abusive, as described above. Employees are
expected to tolerate a certain amount of inept management or bad supervisors as part of the normal
rigors of work.
Changes in work schedule/reduction in hours. A change in workdays or shift times, or to the number of
hours is not good cause for quitting when a claimant rejects the schedule because of personal
preference, inconvenience, or even slight hardship.241 To have good cause, the claimant needs a
compelling reason for why she cannot work the new schedule,242 or she has to show that the employer’s
new requirement is “unnecessary” and “arbitrary,” or imposed to harass the employee.243 Even if a
schedule change results in a reduction in the employee’s wages, she is expected to use her extra free
time searching for full-time work, rather than quitting and having no job at all. If the employer makes
the schedule change as well as decreasing the employee’s rate of pay or downgrading her position, she
may have good cause as described above.
Searching for other work. Resigning to search for a new job is generally not good cause,244 unless the
claimant quit a part-time job because the job hindered looking for full-time work.245 If the claimant quits
to accept a definite job offer, she may have good cause as described above.
Not qualified for the job. Resigning because the employee believes that she lacks the training or
experience to do the work is not good cause.246 However, if the employer imposes new duties or
changes the job duties, the employee may have good cause to quit (as discussed above).
Too qualified for the job. An employee who quits because the work does not require use of her highest
skills does not usually have good cause.247 However, she may be able to argue that she has good cause if
her situation is extreme, i.e. her primary duties are on a substantially lower skill and status level.248
26
Additionally, if the employer misrepresented the skills needed for the job at the time the claimant was
hired, she may have good cause to resign.
Transition to self-employment. Resigning to go into business for one’s self is not good cause,249 unless
the employee reasonably anticipates losing her job soon and is reasonably certain that self-employment
will provide a way to earn a livelihood. For example, the employee had a definite offer of work as an
independent contractor.250
Transition to school. Quitting to attend school or a training course is not usually good cause,251 unless
the employer requested the schooling,252 or the claimant was required by law to attend school because
of her age.253 A claimant may have good cause if the training or apprenticeship program is stateapproved, such as through the California Training Benefits Program.254 (For more information, see
“California Training Benefits Program” in Chapter 7.)
Resigning in anticipation of discharge. Quitting because the employee believes that she will soon be
discharged is not good cause, 255 unless another independent good-cause reason exists.256 Even if an
employer has given the employee a definite date of termination or layoff, the employee will have to
show an independent good cause reason to leave the job before that date. If the employer, however,
has taken definite steps to discharge the worker immediately, such as by telling her that she will be fired
if she does not resign, the worker will be considered to have been discharged, rather than to have quit.
(For more information, see “Quit or Discharge: Who was the Moving Party?” above.)
Protesting employer’s disciplinary action. An employee who resigns because she disagrees with her
employer’s disciplinary action usually does not have good cause.257 Good cause may exist, however, if
the employee did what could reasonably be expected of her to try to remain on the job and other
circumstances, including one of the following, were present:

The discipline was for conduct that was not work-connected or detrimental to the employer.258

The discipline was for violating a rule the employee did not actually or constructively know.259

The discipline did not timely follow the conduct at issue.260

The substance of the discipline or the manner in which it was given was excessive or unreasonable,
or the employer engaged in a pattern of hostility or abuse toward the employee.261
For example, a claimant had good cause to quit when her supervisor repeatedly criticized her in front of
customers in a sarcastic manner for mistakes that, in some cases, were not attributable to her and in
other cases, were not work-related.262
3. Constructive Quits
A “constructive” quit occurs when a claimant’s unemployment is the result of her intentional act that
makes it impossible for the employment relationship to continue, even though the employee does not
intend to quit and actually was discharged. In these circumstances, the claimant is ineligible for
27
benefits, either because the separation is deemed a voluntary quit without good cause or because the
claimant is found to have constructively quit by losing the job through her own fault.263 Three elements
are required to find a constructive quit:

The claimant voluntarily committed an act;

The act made it impossible for the employer to use her services;

The claimant knew or reasonably should have known that the act would jeopardize her job and
possibly result in the loss of her employment.264
Constructive Quit Situations
Absences due to incarceration. A constructive quit occurs: 1) if the claimant is discharged for missing
work because she has been incarcerated for more than 24 consecutive hours, and 2) if she pleads guilty
or nolo contendere, or is ultimately convicted of the offense for which she was imprisoned or of any
lesser offense.265
If either of these elements is missing, the claimant will be considered to have been discharged.266 The
separation also is viewed as a discharge if the claimant was absent because of an incarceration she
accepted rather than pay a post-conviction fine that she is too poor to pay.267 If the separation is a
discharge, the EDD will analyze whether the claimant committed work-related misconduct. An
employee discharged for absences due to incarceration ordinarily has not committed misconduct, even
if she fails to give the employer notice of the absence, because she is primarily concerned about getting
released.268 Therefore, the claimant is probably eligible for benefits.
Claimants who pleaded not guilty or have not entered a plea can choose to be paid benefits, risking
having to pay them back upon conviction, or to wait for the court’s decision on the criminal charges,
receiving back benefits upon acquittal.269
Loss of a license required for the job. A constructive quit occurs if an employee is discharged for losing a
license that is required to do the job as long as the loss results from the employee’s own fault. For
example, a truck driver constructively quit when she lost her driver’s license by driving drunk. 270
However, if the license is lost through no fault of the claimant, such as by a good-faith inability to pass a
test, she is eligible for benefits.271
Refusal to join a union. A constructive quit usually occurs if the employee is discharged for willfully
refusing to pay union dues, resulting in the loss of her union membership, when such membership is
made a condition of employment under a collective bargaining agreement. However, if the employee
had good cause for her refusal, such as that the collective bargaining agreement’s requirement is illegal,
she is eligible for benefits.272
Refusal to work certain days or hours. A constructive quit occurs if the employee does not have good
cause to refuse to work certain days or hours and is subsequently discharged for that refusal.273 For
28
example, an employee who was discharged for refusing to work Sundays because of her desire to spend
that day with her family was deemed to have constructively quit.274
Employer’s liability insurer will not cover the employee. Presuming the following two conditions are
met, a constructive quit arises when an employer terminates an employee because the employee can no
longer be covered by the employer’s insurance: 1) the employer had no reasonable alternative to
terminating the employee (i.e. the employer could not get different insurance nor could the employer
transfer the employee to a different job) and 2) the employee knew or reasonably should have known
that her actions would jeopardize her employment.275
Expiration of temporary work authorization. Although there is no authority on point, a constructive quit
likely will be found to occur when a worker is fired because her temporary work authorization expired,
unless she can show that the failure to renew her work authorization was not her fault.
4. Layoffs
A layoff for lack of work is neither a discharge nor a voluntary quit. A layoff is the involuntary
termination of an employee for business reasons (e.g. there is no work available or the employer is
cutting costs.) The employee is not replaced because her job is eliminated.
Claimants who are laid off for lack of work are presumptively eligible for unemployment benefits.276
This rule applies to claimants who were either permanently or temporarily employed and to claimants
who were permanently or temporarily laid off. Though not technically a “layoff,” claimants are also
presumptively eligible for benefits when their separation was due to the expiration of a contract
period277 or the sale of a business.278
The technical distinction between a layoff and a termination (wherein the worker is fired but her
position remains open) can be difficult to discern. Moreover, because of the presumptive eligibility,
claimants have an incentive to characterize their separation as a layoff. As such, workers sometimes
mischaracterize their separation from employment as a layoff, either because they do not know the
difference, truly think they were laid off, or just think they will have an easier time getting benefits.
Workers who mischaracterize their separation may not only find themselves ineligible for benefits, but
also subject to false statement penalties. (For more information, see “False Statements” in Chapter 5.)
5. Strikes or Trade Disputes
A worker who voluntarily leaves her jobs because of a strike (formally referred to as a “trade dispute”) is
not eligible for benefits (even if she has good cause for leaving) and she will remain ineligible as long as
the dispute is in active progress at her workplace.279
To disqualify a claimant for involvement in a trade dispute, the EDD must find that 1) there was a trade
dispute; 2) the claimant’s leaving of work was voluntary; 3) the claimant left the job and remained
unemployed because of the trade dispute; and 4) the trade dispute did not end, but was in active
progress.
29
Definition of a Trade Dispute
The Appeals Board broadly construes “trade dispute” as “any controversy which is reasonably related to
employment and the purposes of collective bargaining.” 280 Trade disputes include strikes, lockouts or
any type of concerted activity by employees about their working conditions, even if they are not
unionized.281
Employee Must Voluntarily Leave
An employee leaves work voluntarily if she freely chooses to leave,282 rather than because her employer
coerces her into leaving or refuses to let her work.283
Striking v. locked out workers. Striking workers are not eligible for benefits because the strike reflects
the workers’ collective decision not to provide services to their employer. In contrast, locked out
workers normally are eligible for benefits because the employer prevented them from working when
they were ready to work.
However, a union’s call to strike against one employer in a multi-employer bargaining unit will render
ineligible all members covered by the master collective bargaining agreement who lose their jobs, even
those that were not on strike but were instead locked out in retaliation. This result occurs because the
union’s decision to call the strike only against some of the employers ultimately led to the locked-out
workers’ unemployment.284
Workers who refuse to cross picket lines. Workers who refuse to cross picket lines (of their own union
or of another union striking at the same employer) have voluntarily left their jobs if their refusal is based
on a principled decision not to cross. 285 On the other hand, if they do not cross the picket line because
of a reasonable fear that crossing would endanger their physical safety, their actions will be viewed as
involuntary, and they will be eligible for benefits. Vague threats, common to any picket line, such as
“you’ll be sorry if you cross” are not sufficient to establish that an employee had a reasonable fear.286
Workers who are laid off during a dispute. Workers who are not involved in the trade dispute but who
are laid off because the employer has no work due to the dispute are eligible for benefits.
Trade Dispute Must Cause Unemployment
Trade disputes suspend, rather than end, the employer-employee relationship. Therefore, workers are
disqualified because of a trade dispute only as long as the dispute is the actual cause of their
unemployment. If the dispute ultimately severs the employment relationship, such as the employer
permanently closing or relocating the workplace, the trade dispute may no longer be the cause of a
worker’s unemployment.
Employee finds another job. A trade dispute is no longer the cause of a worker’s unemployment if she
accepts, in good faith, a full-time job with another employer with the intent that the job will be
permanent. (When she loses the new job, she will be eligible for benefits as long as the loss was
through no fault of her own.) However, the EDD must be convinced that the new job was bona fide new
30
employment and not a temporary job taken to ride out the strike. The EDD is especially likely to infer
that her new job was merely to circumvent these trade dispute rules if she loses the new job shortly
after she starts working.287
Employer permanently replaces the strikers. Employers who permanently replace the strikers have
severed the employment relationship with these workers, and, therefore, the strike is no longer the
cause of the workers’ unemployment.288 However, mere threats to replace a striking worker do not
sever the employment relationship.289 In addition, if the employer permits any of the workers to
unconditionally return to their former jobs, even though it has permanently replaced most of its work
force, the employment relationship continues. Workers who choose not to return remain ineligible for
benefits.290
Employer rejects employee’s offer to return to work. An employer will sever the employment
relationship if it rejects an employee’s good faith and unconditional offer to return to her job during the
trade dispute.291
Firings or resignations. The employment relationship will be severed if a claimant quits or is discharged
during the trade dispute. The EDD will analyze the claimant’s eligibility based on whether she was fired
for work-related misconduct or whether she quit without good cause. Workers who were fired for
violating a no-strike clause in their collective bargaining agreement have been found to be discharged
for misconduct.292
Trade Dispute Must Be in Active Progress
Workers who lose their jobs because of a trade dispute are eligible for benefits again when the dispute
is no longer in “active progress.”293 A dispute may come to an end when the employees actually return
to work after a lockout or strike,294 or when the employment relationship is otherwise severed.
D. Able to Work
In order to be eligible for benefits, a claimant must be physically and mentally able to work. Generally,
being “able to work” means that a claimant is physically and mentally capable of working at her usual
job or customary occupation.295 Whether a claimant qualifies for benefits (even if on a prorated basis) is
determined by analyzing how the illness, injury, or pregnancy affects the particular claimant’s ability to
work.296
The Claimant’s Customary Occupation
The claimant needs to be able to work in her usual or customary occupation, meaning a job similar to
her last one, or a job for which she is reasonably fitted.297 If a claimant cannot work in her customary
occupation because a newly acquired injury or illness prevents her from using her existing skills, she
should still be considered able to work if she has other skills, training, or experience in another type of
work that she can currently perform.
31
If a claimant can work but requires certain accommodations, such as lifting restrictions or limitations on
the number of hours spent sitting or standing, she is usually able for work.298 Some claimants, however,
may have so many restrictions that they are unable to work because their only work experience or
training is in an occupation that cannot accommodate their restriction.299 If a claimant needs training to
change occupations because her disability prevents her from doing her former job, she may be able to
qualify for the California Training Benefits program. (For more details, see “California Training Benefits
Program” in Chapter 7.)
Temporary Injury or Illness
The claimant’s Weekly Benefit Amount will be prorated if she cannot work for one or more days during
the week because she was temporarily injured or sick.300 For example, if the claimant had the flu or was
restricted to bed-rest because of her pregnancy for three days, she would receive four, rather than
seven, days’ worth of benefits for that week. A claimant who is otherwise able to work will not have her
Weekly Benefit Amount prorated if she restricts her search to part-time work because of a permanent or
chronic medical condition.301
State Disability Insurance (SDI) Benefits: If the illness or injury keeps the claimant from working for eight
or more consecutive days, 302 she should consider filing a claim with the EDD for temporary State
Disability Insurance (SDI) benefits rather than UI benefits. It is important to remember that claimants
cannot collect UI benefits and SDI benefits at the same time, but it is not uncommon for a claimant to
switch back and forth between the programs.
E. Available for Suitable Work
In order to be eligible for benefits, a claimant must be “available for work.”303 The general rule is that a
claimant is “available for work” if she is 1) ready, willing, and able to accept suitable work or has good
cause for any restriction on her readiness, willingness, or ability to accept such employment” and 2) “a
substantial field of employment remains open to the claimant in her labor market.”304
As used in this general rule, the terms in bold have the following meanings:

Suitable work. This is any work in the claimant’s usual or customary occupation or for which she is
reasonably fitted. Whether the work is reasonably fitted depends on: the degree of risk involved to
the individual’s health, safety, and morals; her physical fitness and prior training; her experience and
prior earnings; her length of unemployment and prospects for securing local work in her customary
occupation; the length of her commute; and any others factors that would influence a reasonably
prudent person in the same circumstances.305 Suitable employment does not include employment
with an employer who: 1) does not possess an appropriate state license, 2) fails to make required
payments to the state Disability Fund, or 3) fails to carry workers' compensation insurance.306

Good cause. This is a reason so compelling that a prudent person who is genuinely desirous of
finding employment would impose a restriction on her work search if she was in the same
32
circumstances as the claimant. Additionally, the claimant must have considered other reasonable
alternatives before imposing a restriction on her work search. “Reasons of ambition, prestige, or
taste, or similar motives, though they may be commendable in certain instances, will usually not be
considered to constitute good cause.”307

A substantial field of employment. This is a field of employment with more than a minimal number
of employers in the claimant’s geographical area that uses workers with the claimant’s skills and
experience, and can accommodate the claimant’s restrictions, if any. The existence of actual
vacancies in the claimant’s type of work is not required.308

Labor Market. This is the potential demand for the claimant’s services in the locality where she
offers them. A labor market may expand or contract with such factors as the season, weather,
economic conditions, and consumer demands.309
Burden of proof. The claimant has the burden of proving that she was willing, ready, and able to accept
suitable work and that she had good cause for any restriction.310 If the claimant satisfies this burden, the
EDD has the burden of proving that, nevertheless, a substantial field of employment did not remain
open to her.311
No good cause for a restriction? Even without good cause, a claimant is still available if the restriction
does not “materially reduce” her job opportunities. Showing a lack of a material reduction is more
difficult than demonstrating openness to a substantial field of employment. In general, a material
reduction amounts to the elimination of 20 percent or more of a claimant’s potential labor market, but
in a smaller labor market, a reduction as low as 10 percent could be material.312
Common “Availability” Issues
Claimants often want to (or need to) place various limitations or restrictions on their job search. As a
general rule, reasons that are good cause for voluntarily quitting a job are likely to be good cause for
restricting a job search. (For more information regarding good cause quits, see “Quits That Are Typically
with Good Cause” above.)
The following common examples are discussed in more detail below: Immigration status, part-time
work, school or training, lack of childcare, traveling, commuting, moving to a new area, selfemployment, incarceration, type of work, wages or working conditions, and no substantial field of
employment.
Immigration status. A claimant is considered unavailable for work if she is not lawfully residing and
authorized to work in the United States at the time she is receiving unemployment benefits.313 If a
claimant refuses to provide documentary evidence of her status upon the EDD’s request, she is
unavailable for work.314
If a claimant is eligible for work authorization but had not applied yet or let her authorization
temporarily lapse, she may be considered available.315 However, even that claimant must make good-
33
faith efforts to establish her employment eligibility or risk disqualification on the ground that she did not
take reasonable steps to actively search for work.316
Part-time work. A claimant who is seeking only part-time jobs is available for work as long as she can
show all of the following:317

Her claim is based on part-time employment, meaning that more than 50 percent of the total weeks
worked in the Base Period of her claim must have been in employment of less than 40 hours a
week.318

She is willing to accept work under essentially the same conditions as when she earned her wages
during her Base Period. “Same conditions” means the same number, or range, of part-time hours.

She imposes no restrictions on her job search, other than the day and time restrictions established
as part of her search for part-time work.

She is in a market in which a reasonable demand exists for the part-time services that she offers. In
other words, she is open to a substantial field of employment, as discussed above.
School or training. A student is available if her job search fits the criteria listed above for part-time
work,319 or if her school attendance merely fills in gaps between jobs and she is willing to abandon
school to accept work. A student also should be available for work if she attends school only in the
evening and seeks a full-time day job. Additionally, students are available if the school or training has
been approved through the California Benefits Training program.320 (For more information, see
“California Training Benefits Program” in Chapter 7.)
Lack of childcare. Caring for one’s minor child is good cause for restricting a job search or for refusing an
actual job offer when there are no reasonable alternatives.321 On the other hand, a claimant will still be
disqualified if she cannot work at all322 or cannot work during hours that would allow her to be open to a
substantial field of employment.323
A claimant who is caring for her child during a job search, but who can make other arrangements when
she finds a job, is available for work. She should consider presenting declarations from the person
whom she has lined up as an alternative caregiver as proof of her eligibility.
Traveling. A claimant who is away on travel will normally be considered unavailable, unless the trip was
primarily to search for employment324 or unless the claimant ensures that she will not miss any job
opportunities while she is away.325
Commuting. Whether a claimant has good cause to limit her search to particular locations or to refuse a
job that she believes is too far away depends on the required travel time and distance to work, as
compared with local commuting practices, and the length of time she has been unemployed. The longer
a claimant has been unemployed, the farther she should be willing to commute. For example, a
claimant who is unemployed for two months and who does not apply for a suitable job opening because
of a two-hour round-trip commute by public transportation is considered not available.326 Additionally,
34
a claimant may have good cause for refusing a job if the cost of commuting would be excessive, such as
more than half her gross pay.327
Moving to a new area. A claimant can move to a different locality and still receive unemployment
benefits,328 unless she moves to an area where there is little or no market for her services.329 A labor
market exists in a particular locality when there is a reasonable employment field in the new location,330
even if the claimant moves to a smaller community.331 The fact that there may be no openings is
immaterial.332
Self-employment. A claimant who is self-employed or looking for work as an independent contractor is
not usually available. But such a claimant is available if she intends to abandon self-employment or if
her work as an independent contractor is flexible enough that it does not conflict with the hours she
would be expected to work as an employee in her usual occupation.333
Incarceration. If a claimant is detained for more than two workdays, she is unavailable even if the
charges are later dismissed. If she is detained less than two workdays and the charges are dismissed,
she remains available.334
Type of work. A claimant usually can restrict her job search to her customary occupation, the work that
she ordinarily performs or is trained to perform, even if she has experience or training in other
occupations.335 Especially when she has not been unemployed for long, she can consider jobs outside
her customary occupation “unsuitable.”
On the other hand, a claimant seeking to change careers probably must show good cause for rejecting
what will probably be seen as suitable work because of her prior experience in that work.336 Reasons of
ambition, prestige, or taste are not good cause.337 However, a claimant may have good cause if the
prevailing wages are lower in the rejected occupation(s) than what she became accustomed to338 or if
the rejected occupation(s) would not require use of her highest skills and could cause her to lose
proficiency in those skills or make it harder for her to find a job using her highest skills.339 The length of
her unemployment also matters.340 For example, a claimant who has five years of experience
bartending, has been unemployed for only a few weeks, and is accustomed to receiving the higher
wages and tips from bartending than what she could earn waiting tables, likely can consider work as a
waitress unsuitable without risking disqualification, even if she also has a number of years of experience
waiting tables.
Wages or working conditions. Work is not considered suitable if the wages, hours, or other working
conditions are substantially less favorable than those prevailing for similar work in the area.341 For
example, a job that pays more than 10 percent below the prevailing wage is substantially less
favorable.342 Additionally, even work that would not be substantially less favorable for most claimants
may be considered unsuitable for a particular claimant if her prior training, experience, and earnings
place her at the higher end of the range of prevailing wages for her occupation.343
No substantial field of employment. When the EDD decides that a claimant is not open to a substantial
field of employment, the EDD (relying on the California Occupational Outlook Guide) has simply decided
35
that the claimant cannot get a job. Such a claimant should emphasize any and all of the occupations in
which she has ever worked or received training, no matter how briefly. Also, she can challenge the
EDD’s interpretation or use of California’s Occupational Guides as compared with other sources,
including want ads and federal statistics. The “labor market information” section of the EDD’s website
includes its occupational guides, as well as links to other sources, such as federal census data. In
addition, the claimant should remember that the EDD bears the burden of proof in demonstrating that
she is not open to a substantial field of employment.344
F. Refusing a Job Offer
A claimant may be disqualified for refusing an offer of suitable work without good cause.345 Although
closely related, this is distinct from the “availability” requirement discussed in the preceding section. To
be disqualified based on a refusal of work, the claimant must actually refuse a valid offer for suitable
work without good cause.346

Valid Offer. An actual opening must exist at the time the job offer is made, and the offer must
include enough details on the duties, hours of work, wages, and working conditions so that a
claimant can assess whether the job is suitable.347

Suitable Work. This term is defined in the preceding section. In this context, work is also not
“suitable,” and thus it is permissible to refuse work, if 1) the position offered is vacant due
directly to a labor dispute, 2) the wages, hours, or other conditions of the work offered are
substantially less favorable to the individual than those prevailing for similar work in the locality,
or 3) as a condition of being employed, the individual would be required to join a company
union or to resign from or refrain from joining any bona fide labor organization.348

Good cause. This is a reason so compelling that a prudent person who is genuinely desirous of
finding employment would reject a job if she was in the same circumstances as the claimant.
Additionally, the claimant must have considered other reasonable alternatives before rejecting a
job. “Reasons of ambition, prestige, or taste, or similar motives, though they may be
commendable in certain instances, will usually not be considered to constitute good cause.”349
The EDD or the employer must prove that the claimant actually refused a valid offer for suitable work. If
the EDD or employer meets its burden, the claimant must prove that she had good cause for declining
the offer.350
As a general rule, reasons that are good cause for voluntarily quitting a job are likely to be good cause
for refusing a job offer. (For more information regarding good cause quits, see “Quits That Are Typically
with Good Cause” above.)
Temporary Work
Temporary workers often expect to have a great deal of flexibility in deciding which assignments to
accept. However, like any other claimant, temporary workers must be available351 and must have good
36
cause for refusing offers of suitable work.352 Therefore, they should be prepared to defend their
rejections of particular assignments and may risk disqualification by being choosy.
For temporary workers, the definition of suitable work tends to be very broad. By accepting
assignments, claimants implicitly acknowledge that these types of assignments are suitable, and this
may “trap” them if they later want to reject a similar assignment. For example, a claimant who takes a
temporary job with a pay rate that is lower than what she usually receives based on her experience and
prior earnings may not be able to later turn down a job with a similar pay rate because the pay is too
low.
Refusing temporary jobs to search for permanent work is probably not good cause.353 However, a
claimant may be able to successfully argue that she has good cause if the temporary assignments are
actually interfering with her ability to seek permanent work and she has no reasonable alternatives. For
example, a claimant who has job interviews scheduled at times that conflict with the full-time hours that
she is expected to work at temporary assignments and who cannot change the interview times or get
time off from her assignments might be able to show that the temporary assignments are hindering her
job search.
Other Common Issues
The issues raised by refusing a job offer are similar to those raised by placing restrictions on a job
search. (For more information regarding common availability issues, see “Available for Suitable Work”
above.)
G. Actively Searching for Work
In order to be eligible for benefits, a claimant must actively search for suitable work.354 The search must
be reasonably designed to result in prompt employment, considering the customary methods of
obtaining work in the claimant’s occupation and the current condition of the labor market.355
Contacting three or more employers a week is probably enough to constitute an active search.356
Contacting employers might include phone inquiries about job opportunities, searching for jobs on the
internet, or submitting an application. On the other hand, a claimant may not need to contact any
employers if the customary method for obtaining work in her occupation is through a union and she is in
good standing with her union. Claimants should keep a record of employers they contact about work
because the EDD may inquire about specific job search strategies and contacts to comply with the EDD’s
reporting requirements.
A claimant does not have to search for work, if doing so would be fruitless. Circumstances in which a
search would be fruitless include:

The claimant has a definite promise of a job that will start within a reasonable time. 357

The claimant was temporarily laid off and will return to work within 30 days.358
37

The claimant is seasonally unemployed and the prospects of finding work in the off-season are
remote.359
Training/School. Claimants receiving benefits to attend training or school under the California Training
Benefits Program are not required to actively search for work. (For more information, see “California
Training Benefits Program” in Chapter 7.)
CalJOBS and Reemployment Services. As part of an active job search, the EDD may require the claimant
to register with CalJOBS (California’s no-fee Internet job opening and resume listing system), attend an
Initial Assistance Workshop, or engage in other EDD-sponsored reemployment services. (For more
information, see “Registering for CalJOBS and Reemployment Services” in Chapter 4.)
Searching for Part-Time Work. (For information regarding part-time work searches, see “Available for
Suitable Work” above.)
For more information regarding the work search requirement, see the EDD’s Benefit Determination
Guide, Miscellaneous 95.
H. Unemployed or Underemployed
A person must be unemployed to be eligible for UI benefits. A person is unemployed in any week in
which she meets any of the following conditions:

“Any week during which he or she performs no services and with respect to which no wages are
payable to him or her.”360 Note that this definition does not require a formal separation or
traditional severance of the employer-employee relationship. For example, an individual on a leave
of absence or unpaid vacation meets this definition of “unemployed” and thus may be eligible for
unemployment benefits, provided she meets all other eligibility criteria.

“Any week during which he or she performs full-time work for five days as a juror, or as a witness
under subpoena.”361

“Any week of less than full-time work, if the wages payable to him or her with respect to the week,
when reduced by twenty-five dollars ($25) or 25 percent of the wages payable, whichever is greater,
do not equal or exceed her Weekly Benefit Amount.” 362 California does not provide a specific
definition of "full-time work." Therefore, for the purposes of determining UI eligibility, full-time
work in a week consists of the number of hours considered to be the standard or customary
workweek for an occupation in a geographic or labor market area.363
Reduced Benefits Based on Part-Time Work
Some unemployed workers may find opportunities for odd jobs, temporary work assignments, or parttime work. If a claimant is underemployed (i.e. she earns some money, but less than 1.33 times her
38
Weekly Benefit Amount) she is still unemployed and thus eligible for benefits, but will be entitled to
reduced benefits as follows:

If she earns less than $100 in a particular week, her benefits for that week will be reduced by the
amount of wages over $25 (e.g. $90 in wages will cause a $65 reduction in benefits).

If she earns more than $100 in a particular week, her benefits for that week will be reduced by 75%
of her weekly wages (e.g. $120 in wages will cause a $90 reduction in benefits).
Benefits are reduced for the week during which the wages were earned, even if they were paid at a later
time. Reductions are based on gross earnings (i.e. the total earnings before any tax withholdings), not
net earnings.
A claimant is not entitled to any benefits during any week that she works and has earnings in excess of
1.33 times her Weekly Benefit Amount.364
School Employees: Unemployed during Recesses?
For unemployment insurance purposes, a “school employee” is an individual working for a public or
private non-profit school employer, or providing services to an educational institution (e.g. teacher,
substitute-teacher, principal, or janitor). If a school employee has reasonable assurance that s/he has a
job with a school at the end of a recess period (e.g. summer vacation and holiday recess), the employee
is not eligible for UI based on the school wages. However, if an employee worked for a school and a
non-school employer during the UI Base Period, she would be eligible for UI benefits during a recess
based on the non-school wages, provided she meets all other eligibility requirements. An employee
with a school job offer contingent on funding or enrollment is not considered to have “reasonable
assurance” of a job, and would be eligible for UI benefits.
If a non-professional school employee (such as a custodian, cafeteria worker or teacher’s aide) has
reasonable assurance of a job but then is not given work after a recess period, she can request
retroactive UI benefits. Professional school employees, such as teachers, principals and registrars,
however, are not eligible for retroactive UI benefits.
For more information regarding school employees, see the EDD’s “FAQ – School Employees,” available
online at http://www.edd.ca.gov/Unemployment/FAQ_-_School_Employees.htm. Also, see the EDD’s
Benefit Determination Guide, Miscellaneous 65.
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CHAPTER 4. THE CLAIM FILING PROCESS
This Chapter chronicles all the steps involved in filing a new claim for UI benefits. There are two
principal steps:
First, in order to establish initial eligibility for UI benefits, a claimant must submit an application to the
EDD.365
Second, in order to certify ongoing eligibility, a claimant must submit Continued Claim Forms. Each
Continued Claim Form establishes eligibility for a specific two-week period.
Along the way, several additional steps may be required by the EDD or may be initiated at the claimant’s
discretion. These steps, also discussed below, include:

Amending the Application

Participating in an eligibility determination interview;

Registering for CalJOBS and reemployment services;

Verifying her identity, social security number, and/or immigration status.
This Chapter also discusses the process for filing an additional claim following intervening employment,
and filing a second claim at the conclusion of a Benefit Year.
A. Submitting the Application
Before submitting a new claim for benefits, a claimant should make a preliminary evaluation of whether
she will meet the initial and ongoing eligibility requirements. (For more information regarding eligibility,
see Chapter 3 “Overview of Eligibility Requirements.”) There are at least two potential downsides for a
claimant who submits a new claim for benefits and is ruled ineligible by the EDD.
First, if a claimant is disqualified following an EDD determination that the claimant failed to meet the
no-fault separation requirement, the claimant will have to purge the disqualification in order to apply
for and collect benefits in the future. To purge the disqualification, the claimant must return to work in
bona fide employment and earn at least five times her Weekly Benefit Amount after the act that
resulted in the disqualification.366
Second, in addition to finding a claimant ineligible for benefits, the EDD may determine that the
claimant made a false statement. False statements will typically result in a disqualification period of
between 2 and 13 weeks and can be assessed at anytime within three years (e.g. when a claimant reapplies for benefits a year later and is otherwise entitled to benefits).367 (For more information, see
“False Statements” in Chapter 5.)
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Notwithstanding these concerns, a claimant should apply for benefits if she reasonably believes that she
will qualify for benefits. A lack of absolute certainty should not prevent a claimant from seeking
benefits.
When to Submit the Application
A claimant can submit a new claim for benefits at any time after becoming unemployed; there is no
deadline or time limit on filing a claim. For most claimants, it is advantageous to submit a claim as soon
as possible. The EDD is required to “promptly” pay benefits it if finds the claimant eligible (or promptly
“deny” benefits if it finds the claimant ineligible).368
Applications are effective on the Sunday prior to the date the application is filed, and this effective date
establishes the claimant’s Base Period and Benefit Year. 369
The one circumstance where a claimant could be well served by waiting to submit her claim is when
doing so would lead to a higher Weekly Benefit Amount and a higher Maximum Benefit Amount. In
some cases, it may be necessary to wait and submit a claim in a later quarter in order to have sufficient
Base Period earns to be eligible for any benefits at all. (For more information regarding the interplay
between the effective date of a claim and the Weekly Benefit Amount and Maximum Benefit Amount,
see Chapter 2 “Amount and Duration of Benefits.”)
For example, consider a claimant who was out of the workforce for several years, and then worked fulltime between January and May before getting laid off in early June. If this claimant applied for benefits
in June (i.e. the 2nd calendar quarter), she would have zero Base Period earnings and be ineligible for
benefits. However, if she waited until July (i.e. the 3rd calendar quarter), her Base Period would shift
forward and include the 1st calendar quarter when she was working full-time.
The prospect of a higher Weekly Benefit Amount should be weighed against the downside of applying
later and delaying benefits. This is especially true if the claimant expects to be working again in the very
near future or if the claimant needs benefits immediately.
Backdating the Application? At the request of the claimant, the EDD shall “extend the period prescribed
for the filing of the claim” (i.e. “backdate the claim”) if it finds that the delayed filing was due to “good
cause,” including, but not limited to, any of the following:

the claimant’s employer warned, instructed or coerced her to prevent the prompt filing of the claim;

EDD error;

compelling reasons, or circumstances which would have prevented a reasonable person under the
circumstances presented from filing the claim; or

mistake, inadvertence, surprise, or excusable neglect (but not negligence, carelessness, or
procrastination).370
41
Following a separation, employers are under a mandatory duty to inform an employee of her
unemployment insurance rights; the employer must give the employee the appropriate EDD pamphlet
not later than the effective date of the separation. (For more information about this employer duty, see
“The Role of Employers” in Chapter 1.)
An employer’s failure to provide the mandated pamphlet alone would not provide a claimant with good
cause to backdate a claim, particularly where a claimant has filed for benefits in the past or is otherwise
familiar with the UI program.371 However, the employer’s failure to comply with the statutory duty
should be among the factors to be considered in analyzing a case involving the backdating of a claim.372
How to Submit the Application
To apply for UI benefits, a claimant will need to provide a lot of detailed information to the EDD. The
EDD recommends that a claimant gather the following information prior to commencing the application:

Claimant information: Name (including all names used while working), social security number,
mailing and residence addresses, telephone number, state issued driver's license or ID card number,
alien registration number (if applicable).

Employment history for last 18 months: Names of ALL employers (as they appeared on paycheck
stub or W-2 form), dates of employment, wages earned, and how they were paid (hourly, weekly,
monthly).

Last employer information: name (as it appeared on paycheck stub or W-2 form), address (mailing
and physical location), telephone number, and reason for separation. The EDD is required to mail a
notice to this employer, so it is important to provide the accurate name and address (incorrect
information will delay the application process).

Income: Any sources of income, or future income. The EDD asks about this because some types of
payments – such as wages, pension payments, holiday pay and vacation or sick pay – may be
deducted from a claimant’s benefits.
An unemployed or underemployed worker may file a new claim (or an additional claim, discussed in
“Filing an Additional Claim” below) by one of the following methods:

Submit an application by phone. Claimants can call the EDD during regular business hours and
submit an application by phone. The full list of telephone numbers (and available languages) is
accessible at http://www.edd.ca.gov/Unemployment/Telephone_Numbers.htm.

Submit an online application. Claimants can access and submit the online application at any time by
visiting https://eapply4ui.edd.ca.gov/.

Mail or fax a paper application. There are slightly different applications for claimants in different
circumstances. Therefore, to ensure that a claimant accesses the correct paper application, she
should visit https://eapply4ui.edd.ca.gov/default.htm?target=paper and answer a few online
42
questions. The website will evaluate the responses and provide a link to the correct paper
application.
There is no option to submit an application in-person. For preview purposes, claimants can directly
access the generic version of the application (Form DE 1101I) at
http://www.edd.ca.gov/pdf_pub_ctr/de1101id.pdf.
Oftentimes, the most important – and potentially problematic – question is about the claimant’s
separation from her most recent job: “Briefly explain in your own words the reason you are no longer
working for your very last employer, within the space provided.” These are some of the most common
explanations:

Discharged (also “Fired” or “Terminated”). The employer ends the employment relationship,
without eliminating the worker’s position.

Laid-Off/Lack of Work. An employee’s position is temporarily or permanently eliminated for
business reasons.

Voluntary Quit. The employee ended the employment relationship on her own initiative.

Strike or Lockout. The root cause of the separation was a trade dispute.

Still working part time.
Claimants should be very careful to answer this question accurately and honestly. For example, some
claimants tell the EDD that they were laid off when they were actually terminated. If the EDD
determines that the claimant mischaracterized the separation, the EDD will seek repayment of any
benefits that were paid, assess penalties against the claimant for making a false statement, and
disqualify the claimant from collecting benefits (even if she otherwise would have been eligible).
Moving to a New State or Country: Where to Submit the Application
A claimant will likely be able to collect unemployment benefits if she moves to a new state. Many states
have reciprocal arrangements with other states to administer the unemployment insurance law
governing where the claimant was employed.373 To ensure that a claimant will be able to collect
benefits in a new state, the claimant should contact the Employment Development Department (EDD)
or equivalent administrator of unemployment benefits in the new state. If a claimant accumulates
rights to benefits under the unemployment compensation laws of more than one state, it may be
possible for the claimant to collect benefits through a single agency.374 If a claimant moves to a different
country, s/he may also be able to file for unemployment insurance in the new country.375 The claimant
should contact the agency governing unemployment benefits in the new country to determine if there is
a cooperative arrangement with the U.S.
The following chart summarizes how Inter-State UI Claims are handled by the respective agencies
involved:
43
Worked in State “X,”
relocated to CA
Worked in CA, relocated to
State “X”
Who will determine whether
benefits are awarded?
State X’s Unemployment
Insurance (UI) agency
CA’s Employment
Development Department
(EDD)
Where to apply for
Unemployment Insurance?
Apply by mail or apply at an
EDD office using a uniform
interstate claims form.376
Apply with the EDD by phone
at 1-800-300-5616 or apply
through a local UI office in
State X with a uniform
interstate claims form.
Where to register for job search
assistance, as required?
CA (follow CA’s registration
requirements).
State X (follow State X’s
registration requirements).377
Which state’s eligibility
requirements apply?
State X
CA
Which state investigates
whether worker is able and
available to work?
CA
State X378
Which state will send benefits
checks?
State X
CA (through the Sacramento
office)
Which state takes appeals?
State X. Claimant should mail
in appeal.
CA. Claimant should mail in
appeal as usual.
Where do appeal proceedings
take place?
Over the telephone or in a
host UI office in State X.379
Over the telephone.380 The
EDD will mail claimant a copy
of appeal file for the hearing.
Note: This chart is to be used in assisting claimants to apply for benefits when they move into or out of
California. A different but related question is whether UI agencies will look at previous out-of-state
employment to determine a claimant’s Weekly Benefit Amount and/or Maximum Benefit Amount. A
California claimant applying for UI who wishes to have her out-of-state wages included in her Base
Period earnings should call 1-800-300-5616 before filling out an application for benefits. The EDD will
contact the claimant’s former state, calculate the credit, and then send the claimant an amended
notice when all of her employment has been included in her benefit calculation.381
Most Recent Employer’s Response to Application
44
Similar to the version sent to the claimant, the EDD will send a “Notice of Unemployment Insurance
Claim Filed” (Form DE 1101CZ) to the claimant’s most recent employer, i.e. the employer for whom she
worked immediately before submitting the new claim for benefits.382 A sample of this notice is available
online at http://www.edd.ca.gov/pdf_pub_ctr/de1101cz.pdf.
The Notice provides the claimant’s name, the claimant’s social security number, the effective date of the
claim, the last date worked, and the reason for separation. The employer is invited to provide any 1)
“reporting facts” regarding the claimant’s eligibility or 2) any “other compensation” the employer paid
or will pay the claimant after the effective date of the claim.
The employer is not obligated to reply – “NO reply is required if the claimant was laid off due to lack of
work and no other eligibility issue has been raised.” But if the employer chooses to reply, the employer
must do so, in writing, within 10 days of the mailing of the notice.383 The 10-day period may be
extended for good cause, including if the employer never actually received the notice of the claim or if
the employer later learns of facts affecting the claimant’s eligibility.384 (For information regarding an
employer’s incentive to respond, see “The Role of Employers” in Chapter 1.)
An employer who fails to respond (and cannot show good cause) loses its right to challenge the
claimant’s eligibility at any stage of the claim, including any subsequent appeals. Without the
participation of the employer, which usually bears the burden of proof in challenging the claimant’s
separation from work,385 the claimant is more likely to be found eligible for benefits. However, a
claimant’s eligibility is not guaranteed simply because the employer is not a party to the claim; the EDD
can find the claimant ineligible for benefits based solely on information provided by the claimant.
Conversely, “*i+nasmuch as eligibility for UI benefits is determined by the EDD, and not by an employee’s
last employer, the EDD is not bound by any representation made by an employer as to an employee’s
right to UI benefits.”386
Next Step(s)
Following the claimant’s submission of the application, the EDD will respond in writing with one or more
of the following documents:

“Notice of Unemployment Insurance Claim Filed.” (For more information, see “Amending the
Application” below.)

“Notice of Unemployment Insurance Award.” (For more information, see “Base Period Wages:
Challenging the EDD’s Computation” in Chapter 5.)

“Request for *More Information].” (For more information, see “Verifying Identity, Social Security
Number, and Immigration Status” below.)

“Continued Claim Form.” (For more information, see the following section.)
45

“Notice of Telephone Interview Notification and Instructions.” (For more information, see
“Participating in an Eligibility Determination Interview” below.)

“Notice of Determination” or “Notice of Determination/Ruling.” (For more information, see Chapter
5 “EDD Determinations.”)
B. Submitting Continued Claim Forms
In order to receive benefits, a claimant must certify that she meets the ongoing eligibility requirements
by completing, signing, and submitting Continued Claim Forms (CCFs). 387
A claimant will begin receiving bi-weekly Continued Claim Forms (Form DE 4581) from the EDD shortly
after submitting an application for benefits. A claimant will also receive CCFs from the EDD after filing
an additional claim. (For more information about additional claims, see “Intervening Employment: Filing
an Additional Claim” below.)
These CCFs are generated and mailed automatically by the EDD, so receipt of these CCFs does not, in
and of itself, mean that a claimant has met the initial eligibility requirements. A claimant may very well
receive, and return, several CCFs while the EDD is still evaluating the claimant’s initial eligibility.
Completing the Continued Claim Form
For every two-week period, the CCF poses six eligibility-related questions.
1. Were you too sick or injured to work? If yes, enter the number of days (1 through 7) you were
unable to work.
A claimant must be well enough to work every day of the week to receive full benefits. If a claimant was
unable to work because of illness or injury, the claimant must report the number of days that she could
not work. Benefits will be paid according to the number of days the claimant is able to work (e.g.
weekly benefits will be reduced by two-sevenths if a claimant was unable to work for two days in a
week).
(For more information, see “Able to Work” in Chapter 3.)
2. Was there any reason (other than sickness or injury) that you could not have accepted full time work
each workday?
A claimant must be available for work to receive benefits. If a claimant was unavailable to work, the
claimant must report the number of days that she was unavailable. Benefits will be paid according to
the number of days the claimant is available to work (e.g. weekly benefits will be reduced by threesevenths if a claimant was unavailable to work for three days in a week).
(For more information, see “Available for Suitable Work” in Chapter 3.)
46
3. Did you look for work? IF MARKED “X,” YOU MUST COMPLETE SEC. B, WORK-SEARCH RECORD, ON REVERSE.
A claimant must actively search for work to receive benefits. Work searches may include in-person,
mail, telephone, or Internet contacts with employers. A union member should answer “Yes” to this
question if she meets her union’s reporting and dispatch requirements.
(For more information, see “Actively Searching for Work” in Chapter 3.)
4. Did you refuse any work?
A claimant may be found ineligible for benefits if she refused a suitable offer of employment. A union
member should answer “Yes” if she refused a union referral to a job.
(For more information, see “Refusing a Job Offer” in Chapter 3.)
5. Did you begin attending any kind of school or training?
Attendance in school or training may affect a claimant’s eligibility for benefits.
(For more information, see “Available for Suitable Work” in Chapter 3.)
6. Did you work or earn any money, WHETHER YOU WERE PAID OR NOT?
a. Enter earnings before deductions here.
b. Report employment or “source” of earnings information below.
Working or earning money may affect a claimant’s eligibility for benefits. As emphasized in the
questions, claimants must report gross wages (rather than net wages) and they must report wages
earned (regardless of whether and when they were paid).
(For more information regarding earnings and how they are deducted from benefits, see “Unemployed
or Underemployed” in Chapter 3.)
In addition to the six eligibility questions, the claimant is provided with the opportunity to have her
federal income taxes withheld from her benefits check and to change her address. (For more
information regarding taxes, see Chapter 2 “Amount and Duration of Benefits.”)
Finally, the claimant is required to sign the form, certifying, under penalty of perjury, that she
understands the questions and that she is “a U.S. Citizen or national, or an alien in satisfactory
immigration status and permitted to work by the USCIS.” (For more information about immigration
status, see “Satisfactory Immigration Status” in Chapter 3.)
Additional Tips for Claimants:

Use blue or black ink when completing the CCFs.

Mark the answers by completely filling in the box; do not use an “X” to mark an answer.
47

Be sure the EDD mailing address appears in the envelope window. Do not send the form to any
other address or send via overnight mail.

Do not enclose any other forms or correspondence with the CCF.

Submit the forms on time! The claimant should complete and mail the CCF on the date shown on
the front of the form; it must be mailed no more than fourteen days after the conclusion of the twoweek period covered by the CCF. A claimant will not receive benefits for any week in which she did
not timely submit a CCF, unless she can show good cause for not sending it on time.388 Good cause
is a compelling reason or circumstance that would have prevented a reasonable person from filing
the claim form earlier.389 Forgetting to complete the form is not good cause for a late submission,390
but the need to care for an ill family member probably is good cause.391
Next Step(s)
Upon receipt of a claimant’s CCF, the EDD will respond in one of the following three ways:

The EDD will mail to the claimant a benefit check and the next CCF. (For more information regarding
benefit checks, see “Eligible for Benefits: Getting Paid” in Chapter 5).

The EDD will mail to the claimant a “Notice of Determination,” which explains the basis for a
disqualification. (For more information, see Chapter 5 “EDD Determinations.”)

The EDD will mail to the claimant a Notice of the EDD’s intention to conduct an eligibility
determination interview by telephone. (For more information, see “Participating in an Eligibility
Determination Interview” below.) The telephone interviews are typically scheduled when one or
more of the claimant’s responses on the CCF raised an eligibility concern for the EDD.
C. Additional Steps in the Claims Filing Process
1. Amending the Application
Shortly after a claimant applies for benefits, the EDD will send written confirmation of the application
submission to the claimant in the form of a one-page “Notice of Unemployment Insurance Claim Filed”
(Form DE 1101CLMT). A sample of this form is available online at
http://www.edd.ca.gov/pdf_pub_ctr/de1101clmt.pdf. This Notice confirms a few key pieces of
information provided on the application: the effective date of the application, the name of the last
employer, the last day worked for the last employer, the reason the claimant is no longer working for
the last employer, whether the claimant is receiving a pension or any other income, and whether the
claimant is able and available to accept work.
The Notice provides the claimant with the opportunity to correct any of the information within 10 days
of the mailing of the notice.
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2. Participating in an Eligibility Determination Interview
After submitting an application for benefits, a claimant may receive a “Notice of Telephone Interview
Notification and Instructions.” This Notice explains that an EDD “determination interviewer” will call the
claimant at a specific date and time to conduct an eligibility interview by phone. The Notice will include
a list of potential questions. These interviews are most often conducted when there is a discrepancy
between the claimant’s explanation and the employer’s explanation regarding the reason for the
separation from work.
The claimant should contact the EDD immediately if she will not be available for the interview or if the
EDD fails to call at the scheduled time.
Before the claimant’s interview, the determination interviewer will have probably conducted (or tried to
conduct) a similar interview with the claimant’s most recent employer in order to gain information
regarding the claimant’s separation and to follow up on the information provided by the employer in
response to the “Notice of Unemployment Insurance Claim Filed.” If the employer has given the
interviewer information that raises questions about the claimant’s eligibility, the interviewer will
address those questions with the claimant.
Employer Eligibility Interview
The eligibility interview is typically the final (and most important) step before the EDD makes an
eligibility determination. Moreover, the interviewer takes written notes during the interview (on a form
called “Notes of Claim Status Interview,” which become a permanent part of the claimant’s record. If
the EDD’s eligibility determination is appealed, the notes will become accessible to all the parties
(including the Administrative Law Judge) and will likely play a role in evaluating the claimant’s credibility
on appeal.
Preparing for the Interview
Claimants should prepare for their eligibility interview by carefully reviewing the questions included with
the written Notice, which often foreshadow the specific eligibility issues the EDD thinks may be in
question. The claimant should then learn as much as possible about the applicable legal standard(s)
(e.g. a claimant who voluntarily leaves her employment must have done so with good cause and taken
reasonable steps to keep the employment). Finally, the claimant should gather any relevant
employment records or notes that they may have kept, and be prepared to explain and document the
important facts.
During the interview
The claimant should be provided the following suggestions to keep in mind during the interview.

At the beginning of the interview, ask what information the employer provided. The interviewer
may not be forthcoming with this information, but knowing what the employer said can only help
the claimant focus on key discrepancies and rebut misinformation.
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
Tell the story in a way that relies on the law, and not just on what seems important. For example, a
discharged claimant may waste time trying to convince the interviewer that she was a perfect
worker or unjustly fired, when all she needs to show is that the employer’s reason for firing her did
not rise to the level of misconduct.

Be absolutely clear. A claimant should ask the determination interviewer for clarification if she does
not understand any of the questions. In addition, she can politely ask the determination interviewer
to repeat back the contents of her notes to make sure they accurately characterize her position.

Do not give more information than necessary to answer the questions. During the determination
interview, a claimant should carefully answer only what is asked and avoid conversation that is
outside the scope of the interview. For example, a claimant who is, in fact, looking for full-time
work might nevertheless be disqualified based on a lack of availability if she casually mentions that
she would prefer a part-time job to spend more time with her son. At best, this information diverts
the interviewer from the relevant facts. At worst, it will raise additional issues and hurdles for the
claimant and could lead to disqualification on other grounds.
The EDD typically makes the initial eligibility determination immediately after the eligibility
determination interview.
3. Registering for CalJOBS and Reemployment Services
CalJOBS
After submitting an application for benefits, a claimant will receive a two-page brochure (Form DE 2456)
describing CalJOBS, California’s no-fee Internet job opening and resume listing system. A copy of this
brochure is available online at http://www.edd.ca.gov/pdf_pub_ctr/de2456.pdf. Claimants may be
required to register with CalJOBS (and add a resume to the CalJOBS system) in order to satisfy the
requirement that claimants register for work with a public employment office.392
Claimants failing to enter or update a resume in CalJOBS may be selected to participate in a Personalized
Job Search Assistance (PJSA) session at their local Job Search (JS) site or One-Stop Center. The purpose
of the PJSA appointment is to offer claimants job search services, labor market information, and to assist
them with entering resumes in CalJOBS. Written appointment notices are mailed to selected claimants
with the date, time, and location of the PJSA session.
Profiling and Reemployment Services
A claimant is eligible to receive unemployment benefits only if she participated as required by the EDD
in reemployment activities, such as “orientation and assessment” (if she has been identified pursuant to
an automated profiling system as likely to exhaust her regular unemployment benefits). 393
The first reemployment service that a claimant can be referred to is an Initial Assistance Workshop
(IAW). The IAW is less than a day and consists of a discussion of why claimants are selected, UI
eligibility, labor market information, and orientation to other reemployment services. If the claimant
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has good cause for missing the first IAW, she may be rescheduled to another IAW only if she can be
rescheduled within the same week.
At the workshop a claimant is required to sign an agreement, called a Reemployment Plan, to participate
in reemployment activities. Participation in the initial orientation is mandatory as are any later activities
that the claimant agrees to attend.
Failure to participate in reemployment services – including failure to attend the IAW or failure to sign
the Reemployment Plan – will result in a one-week disqualification, unless good cause is shown.394
Referral to a Local Workforce Investment Area (LWIA). The EDD may refer a claimant to an LWIA. This is
not considered a reemployment service (even though it may be listed on the claimant's Reemployment
Plan), but failure to report to the LWIA orientation may lead to a one-week disqualification period.
Seek Work Requirements. Participation in reemployment services (and/or LWIA services) does not
relieve a claimant from the standard requirement to actively search for suitable work. (For more
information, see “Actively Searching for Work” in Chapter 3.)
If after reporting to the LWIA, the claimant fails to attend a scheduled LWIA service, the claimant will be
disqualified for the week.395 This is considered a reasonable, specific instruction to search for work.
100.
4. Verifying Identity, Social Security Number, and Immigration Status
In the course of applying for benefits, the EDD may require the claimant to verify her identity, social
security number, and/or immigration status.
Identity
After submitting an application for benefits, a claimant may receive a “Request for Identify Verification”
(Form DE 1326C) and an accompanying “Acceptable Documents for Identify Verification” sheet (Form DE
1326CD). Samples of these documents are available online at
http://www.edd.ca.gov/pdf_pub_ctr/de1326c.pdf and
http://www.edd.ca.gov/pdf_pub_ctr/de1326cd.pdf, respectively.
A claimant is required to provide information to the EDD sufficient for the EDD to establish the identity
of the claimant and to verify that the wages reported under the social security number provided belong
to the claimant.396 If the information provided is insufficient, the EDD shall require the claimant to verify
her identify by presenting a photo identification and one of the following documents: social security
number verification, date of birth verification, address verification, or employment data.397 The
claimant may be required to certify the accuracy of the information under penalty of perjury.398 The
claimant must be provided a “reasonable opportunity” to provide the information requested and also
has the right to request additional time to provide it.399
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If, within ten days from the mailing date of the request, the claimant has not supplied the requested
information, and has not contacted the EDD to request additional time to provide the information, the
EDD shall grant or deny the benefits based on the information available.400
Social Security Number
If the information available to the EDD indicates that a claimant’s Social Security Number (SSN) may
belong to another person or is invalid, the EDD may require a claimant to verify the number as being the
one issued to her by the Social Security Administration (SSA).401 To accomplish this verification, the EDD
may issue a “Request for Information” (Form DE 1326E) seeking confirmation from the claimant of her
social security number. A sample of this document is available online at
http://www.edd.ca.gov/pdf_pub_ctr/de1326e.pdf.
Immigration Status
The EDD is required to determine, as a condition of eligibility for UI benefits, the citizenship status of all
claimants.402 The EDD may require the claimant to provide documents confirming her immigration
status. (For more information, see “Satisfactory Immigration Status” in Chapter 3.)
5. Cancelling the Application
A claimant may want to cancel an application if, for example, she realizes that a later filing would result
in a better Base Period (and a higher Weekly Benefit Amount) or she realizes that she is likely to be
found ineligible and disqualified under the no-fault separation requirement.
A claimant may cancel her claim only if she meets all of the following requirements:

She makes the request within 30 days after the mailing date of the “Notice of Unemployment
Insurance Award,” which provides the EDD’s computation of the claimant’s Base Period, Weekly
Benefit Amount, and maximum amount of benefits. The 30-day deadline may be extended for good
cause. Good cause is a compelling reason or circumstance that would have prevented a reasonable
person from submitting the request earlier, including relying on misleading EDD information.

She has not received and cashed her first benefit check, and

She has not received a Notice of Determination disqualifying her from receiving benefits. 403
There is no limit on the number of claims that may be cancelled, but a claimant cannot change her mind
and later seek to re-establish as her filing date the claim-filing date of a cancelled claim.404
D. Intervening Employment: Filing an “Additional” Claim
A person must be unemployed to be eligible for UI benefits.405 (For more information, see “Unemployed
or Underemployed” in Chapter 3.) It is not uncommon for a claimant to establish a valid claim for
52
benefits, receive benefits for one or more weeks, and then find intervening employment – whether
temporary or permanent, part-time or full-time.
If a claimant is “employed” (as the term is defined by California Unemployment Insurance Code section
1252(a)) for one or more weeks, her claim will be inactivated and the EDD will stop mailing Continued
Claim Forms. If the claimant then loses the intervening employment (at any time during the Benefit
Year) and wants to seek benefits, she must submit an “additional” claim (this is also referred to as reopening the claim).406 Like a new claim for benefits, a claimant who submits an additional claim for
benefits will need to establish that her separation from the intervening employment was not her fault.
To submit an additional claim, the claimant should contact the EDD.
E. Benefits Exhausted: Filing a Second Claim
A claimant who runs out of benefits may be able to continue collecting benefits through one of two
channels. First, if she exhausts her benefits, she may be eligible for an extension. (For more information
regarding extensions, see “Benefit Extensions” in Chapter 7.) Second, if she reaches the conclusion of
her Benefit Year – whether she has exhausted her benefits or not – she may be eligible to file a second
claim for benefits.
A claimant can file a second claim for UI benefits at the end of her Benefit Year, or 52 weeks after the
effective date of her first claim filing. To qualify for a second year of benefits, a claimant who received
any benefits on her first claim must satisfy all the standard eligibility requirements and show that she reestablished an attachment to the labor market during her first Benefit Year by meeting both a past
earnings requirement and a “some work” requirement.407 Special rules apply to claimants who were
entitled to recover SDI or workers’ compensation benefits during the period of their first unemployment
claim, as described below.
The two requirements demonstrating a renewed attachment to the labor market are imposed because a
claimant can have enough wages in the Base Period of her second claim without working at all during
her first Benefit Year and, therefore, would have a valid second claim without performing any more
work or earning any more money since filing her first claim. The Unemployment Insurance Code is
drafted to avoid this problem, commonly referred to as the “lag period” problem. The lag period is the
time between the end of the Base Period of the first claim and the effective date of the first claim.408
For example, if the effective date of the first claim for benefits was June 5, 2009, the claimant’s Base
Period for the first claim would be January 1, 2008 through December 31, 2008. The lag period would
be January 1, 2009 through June 5, 2009. If the claimant files a second claim for benefits as soon as she
is eligible again in early June 2010 (the end of her first Benefit Year) and if she earned $1,300 or more
during the lag period of her first claim, she would meet the past earnings requirement based solely on
wages earned during the lag period of her first claim (January 1, 2009 through June 5, 2009), which
overlaps with the Base Period of her second claim (January 1, 2009, through December 31, 2009).
If the claimant’s Base Period of her second claim does not overlap with the lag period, she does not
need to satisfy the “past earnings” and “some work” requirements described below.409 To be eligible for
53
benefits, a claimant without a lag period problem must simply meet the same standard requirements as
those for a first claim.
The “Past Earnings” Requirement. A second claim will not be valid unless the claimant was paid 1)
wages of at least $1,300 during at least one of the four quarters of the Benefit Year of the first claim, or
2) wages of at least $900 in one of the four quarters of the Benefit Year of the first claim and gross
earnings for the entire Benefit Year of the first claim of at least equal to 1.25 times the highest quarter
earnings in the first Benefit Year.410 For the purposes of meeting this requirement, the claimant must
have earned the wages as an employee in most cases, but need not have earned them in covered
employment.411
The “Some Work” Requirement. In addition to the past earnings requirement, the claimant must have
performed “some work” during the Benefit Year of the first claim.412 For the purposes of this
requirement, work is defined more broadly than covered employment and can include performing any
services for remuneration for apparently any length of time, including work done in self-employment, or
as an independent contractor or employee.413 Actual work, as opposed to the mere receipt of pay or
other benefits, is required.414 “Remuneration” includes call-in or stand-by pay but does not include sick
leave, vacation pay, or severance.415
Exceptions for Claimants Receiving State Disability Insurance (SDI) or Workers’ Compensation Benefits.
A claimant may alternate between receiving SDI or workers’ compensation benefits and UI benefits. Or
she may file for UI benefits, but not collect any UI benefits because she qualified for SDI or workers’
compensation benefits instead. At the end of the UI Benefit Year, the claimant may need to establish a
second claim for unemployment benefits.
If the claimant did not actually receive any benefits on her first UI claim and was disabled during the
period of the first claim and entitled to recover disability or workers’ compensation benefits, her second
claim will be valid independent o f the past earnings and some work requirements.416
If the claimant did collect some UI benefits on her first claim, a special rule applies. SDI or workers’
compensation benefits that were actually received during the Base Period for the second UI claim are
considered “wages” if the benefits were intended to cover wage loss.417 In addition, the SDI or workers’
compensation benefits will be doubled to satisfy the past earnings requirement.418 However, the SDI or
workers’ compensation benefits will not be considered wages in calculating the Weekly Benefit Amount.
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CHAPTER 5. EDD DETERMINATIONS
A. Eligible for Benefits: Getting Paid
The EDD does not provide written notice to a claimant when she is eligible for benefits.
(Disqualifications are issued in writing, and are discussed below.) If eligible, a claimant should receive a
benefit check within ten days of mailing a Continued Claim Form (CCF). The EDD mails benefit checks
from a central location. A claimant will receive the check as part of a three-part form.

The stub portion at the top of the form contains information about the claim and important
messages. A claimant should read, detach, and save the stub for her records.

The middle section of the form is the CCF for the next two-week period. A claimant should
complete and submit the CCF in accordance with the instructions provided on the form. Receipt of
this CCF, presuming it does not raise any eligibility issues, will trigger the EDD to issue the next
benefit check (and stub and CCF).

The bottom portion of the form contains the check. The claimant should detach and cash the check.
Benefit checks are valid for one year from the date of issue.
Where is the Check? The EDD has established an automated telephone system where claimants can find
out when and if a benefit check was mailed to them. A claimant will be required to provide her social
security number and a 4-digit pin number to access this information; instructions for establishing a pin
number will be provided.
B. Base Period Wages: Challenging the EDD’s Computation
In order to be eligible for UI benefits, a claimant must have been paid sufficient Base Period wages. (For
more information regarding this requirement, see “Sufficient Base Period Wages in Covered
Employment” in Chapter 3.) Shortly after submitting an application for benefits, the EDD will determine
whether the claimant is monetarily eligible for benefits. This determination comes in the form of a
“Notice of Unemployment Insurance Award” (Form DE 429Z). A sample of this notice is available online
at http://www.edd.ca.gov/pdf_pub_ctr/de429z.pdf. This misleadingly titled form does not mean that
the EDD has “awarded” the claimant benefits, but rather conveys whether the claimant has met this first
eligibility requirement of sufficient Base Period wages.
Based on the date of the claimant’s application for benefits, the Notice provides the Claim Beginning
Date and the Claim Ending Date. Based on the EDD’s tax records (information submitted by employers),
the Notice lists all of the claimant’s Base Period employers and the claimant’s wages from each of these
employers (broken down by Base Period quarter). From this raw data, the Notice provides the EDD’s
computation of the claimant’s Total Base Period Wages, Highest Quarter Earnings, Maximum Benefit
Amount, and Weekly Benefit Amount. The reverse side of the Notice provides a definition of all these
terms.
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Protesting the EDD’s Determination of Base Period Wages
Importantly, this Notice triggers the claimant’s opportunity to protest the EDD’s computations and/or
the EDD’s record of the claimant’s Base Period earnings. Claimants should review the information on
the Notice very carefully (i.e. check it against the pay stubs, tax records, etc.). It is not uncommon for
employers to not report wages (or to under-report wages) to the EDD, which will be reflected on this
Notice (and, if not corrected, will result in reduced benefits for the claimant or outright denial of
benefits). Misreporting is especially common when employers pay wages in cash and when employers
misclassify workers as independent contractors.
Requesting a Recomputation. If a claimant believes that any of the information on the Notice is
incorrect – whether due to EDD or employer error, intentional or inadvertent – the claimant should
contact the EDD and request a “recomputation” within twenty days from the date of mailing of the
Notice.419 The time to protest may be extended upon a showing of good cause.420
The claimant may request the recomputation by telephone or by utilizing the EDD’s online “Ask EDD”
tool. But the preferred method for seeking a recomputation is in writing, which provides the claimant
an opportunity to fully explain the error or discrepancy, and to include any supporting document (e.g.
copies of W-2 forms, paystubs, etc.). As with any written correspondence to the EDD, the claimant
should include her full name, date of birth, and social security number.
If the claimant believes that a Base Period employer under-reported her earnings to the EDD, the
claimant should provide any relevant evidence supporting her contention. This evidence might include
paystubs, W-2 forms, bank deposit records, a claimant’s own record of hours worked and hourly pay
rate, etc. The claimant should specify, with as much detail as possible, the quantity of the error (e.g. the
precise difference, for a given Base Period quarter, between the actual wages paid and the wages that
were reported by the employer to the EDD).
If a claimant believes that she was paid wages by an employer who is not listed as a Base Period
employer on her Notice (i.e. the employer apparently reported no earnings to the EDD), the claimant
should provide any relevant evidence to prove that she was, in fact, employed by the employer in
question. If it is a question of the claimant’s status as an employee versus an independent contractor,
the claimant should provide evidence about the nature of her work and the specific duties she
performed.
Notice of Amended UI Award. The department shall consider any such protest and promptly notify the
claimant of the recomputation (or denial of recomputation).421 This usually takes the form of a “Notice
of Amended UI Award.” It is not uncommon for a claimant to successfully convince the EDD to
recompute her Base Period wages and to credit her for wages not reported by an employer.
Independent of the claimant’s effort to seek UI benefits (which will proceed normally), the EDD may
initiate an investigation against the employer in question regarding any failure to accurately report
wages (and to pay taxes on wages).
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Appeals. A claimant may appeal the recomputation (or denial of recomputation) – as explained in the
“Notice of Amended UI Award” – within twenty days of the notice in the same manner as provided for
appeals from determinations of eligibility.422 (For more information regarding appeals, see Chapter 6
“The Appeals Process.”)
C. Non-Monetary Determinations
As described in detail in Chapter 3, there are a variety of eligibility requirements for benefits. When the
EDD finds a claimant ineligible for benefits, the EDD will mail the claimant a “Notice of
Determination/Ruling” (Form DE 1080CZ).423 A sample of this form is available online at
http://www.edd.ca.gov/pdf_pub_ctr/de1080cz.pdf. This is the method by which a claimant is formally
disqualified from receiving benefits for failure to meet one or more eligibility requirements.
Disqualifications can be assessed at any time during the lifecycle of a claim for benefits.
The Notice, written in ALL CAPITAL LETTERS and legal language, is virtually indecipherable to many
claimants. It briefly describes the type of disqualification(s), the EDD’s reasons for the
disqualification(s), how to remove the disqualification(s), and the claimant’s right to appeal. The Notice
is accompanied by an “Appeal Form” and the appeal deadline (20 days) is established from the mailing
date of the Notice.
In response to a disqualification, a claimant can 1) appeal the disqualification and/or 2) attempt to
remove the disqualification and re-open the claim. (For more information regarding appeals, see
Chapter 6 “The Appeals Process.”)
The most common types of disqualifications, including the parameters for removing them, are discussed
below.
Satisfactory Immigration Status
In order to be eligible for benefits, a claimant must be in “satisfactory immigration status” and may be
required to provide written verification.424 (For more information regarding this requirement, see
“Satisfactory Immigration Status” in Chapter 3.) A disqualification for failing to meet this requirement is
indefinite. To “lift” the disqualification, the claimant must remove the cause of the disqualification and
contact the EDD to re-open the claim.
The disqualification is generally lifted effective the Sunday of the week in which the claimant reports
whatever information may qualify to lift the disqualification. However, if the condition causing the
disqualification extends into the week in which the claimant reports, the disqualification would be lifted
effective the following Sunday.
No-Fault Separation from Most Recent Work
A claimant is disqualified for benefits if the EDD finds that she left her most recent work voluntarily
without good cause or that she was discharged for misconduct connected with her most recent work.425
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(For more information regarding this requirement, see “No-Fault Separation from Most Recent Work” in
Chapter 3.)
This eligibility requirement is the source of the largest number of claimant disqualifications. A claimant
can “purge” this disqualification by: 1) returning to work, 2) earning five times her Weekly Benefit
Amount in bona fide, covered employment, and 3) separating from this new employment through no
fault of her own.426
The basic test to determine whether employment is “bona fide” to purge a disqualification is whether
the total facts lead reasonably to a conclusion that the individual was in good faith genuinely attached
to the labor market. An individual was not engaged in bona fide employment, however, if she
admittedly worked for the sole, primary, or dominant purpose of avoiding and purging a
disqualification.427
Once the disqualification is purged, the claimant should contact the EDD to re-open the claim.
Able and Available for Work
A claimant may be disqualified for benefits if she is unable to work or unavailable for work.428 (For more
information regarding this requirement, see “Able to Work” and “Available for Suitable Work” in
Chapter 3.) A claimant who is ineligible for benefits because she is unable to work or unavailable for
work shall be ineligible for the week in which the disqualification occurs and shall remain ineligible in
subsequent weeks until she demonstrates to the satisfaction of the EDD that she has “lifted” the
disqualification.429 To “lift” the disqualification, the claimant must remove the cause of the
disqualification and contact the EDD to re-open her claim.
Refusal of an Offer of Suitable Work
A claimant may be disqualified for refusing an offer of suitable work without good cause.430 (For more
information regarding this requirement, see “Refusing a Job Offer” in Chapter 3.) If the EDD determines
that a claimant refused an offer of suitable work without good cause, the claimant will not be eligible to
receive benefits for two to ten consecutive weeks, starting with the first week she would otherwise be
eligible for benefits.431 The precise length of the disqualification period, which is at the discretion of the
EDD and can be reduced on appeal, depends on balancing the following factors:

The reasons the claimant rejected the job, as compared with the claimant’s length of
unemployment. If the claimant has been unemployed for only a couple of weeks, her reasons do
not need to be very compelling in order to get a shorter (e.g. two- to four-week) disqualification
period.

The hardship on the claimant. Extraordinary financial hardship may lead to a shorter disqualification
period.

The expected duration of the rejected job. Generally, claimants are penalized less if the job was
expected to last less than three weeks.
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
The claimant’s job prospects and efforts to seek work generally; and prior job refusals, if any.
Claimants may be disqualified for a shorter period if their job prospects are good and they rejected
only one job.
Actively Searching for Work
A claimant may be disqualified for failing to actively search for suitable work.432 (For more information
regarding this requirement, see “Actively Searching for Work” in Chapter 3.) A disqualification for failing
to actively search for suitable work cannot be assessed retroactively unless the claimant was paid
benefits as a result of a disqualifying false statement.433 Since it cannot be determined whether or not a
claimant has made an adequate search for work during a week until the week is completed, this
disqualification cannot be issued for future weeks.
A claimant may be disqualified for failing to register with CalJOBS (California’s no-fee Internet job
opening and resume listing system) or failing to report to the Local Workforce Investment Area (LWIA)
as agreed upon in her reemployment program.434 Benefits are denied beginning with the Sunday of the
week that the claimant was required to add or update a resume in the Job Service's CalJOBS system and
continuing until the week the claimant adds or updates a resume in CalJOBS.
A claimant may be disqualified for failing to participate in reemployment services, including failure to
attend an Initial Assistance Workshop or failure to sign a Reemployment Plan. 435 If the EDD determines
that a claimant failed to participate in reemployment services, the claimant will be disqualified for one
week unless good cause is shown.436
D. False Statements
Claimants face serious consequences if they give false information to the EDD. If the misstatements are
innocent offenses, they should not result in a problem for the claimant. On the other hand, more
serious financial, and sometimes criminal, penalties can result if claimants knowingly give false
information to receive benefits.
Definition of a False Statement
A false statement is a deliberate lie told verbally, or in writing (such as on the application for benefits or
the Continued Claim Form) to the EDD. For a claimant to have committed a false statement, the EDD
must show all of the following four elements:437

The claimant made a false statement or representation, or withheld a material fact. A fact is
material as long as withholding it raises a question about the claimant’s entitlement to benefits; the
withheld facts do not have to be ones that, if revealed, would definitely cause a disqualification.438
For example, attending school is probably a material fact, even though that attendance might not
render a particular claimant ineligible for benefits.
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
The statement or omission was done willfully. Willfully means deliberately, intentionally or
knowingly; an actual intent to deceive is not required, only knowledge that the information provided
is not accurate.439 If the claimant honestly believes in the truth of her statement, it will be
considered an innocent mistake caused by ordinary negligence, rather than willful.440

The claimant knew the statement or omission was false. This element is established by showing that
the claimant either actually knew the statement was false, lacked an honest belief in its
truthfulness, or acted with reckless disregard for the truth.441 Reckless disregard will occur, for
example, if a vision-impaired claimant asks a friend to complete her Continued Claim Forms and
understands that she must be “able” for work but does not tell the friend that she was too sick to
work for three days in a particular week.442

The statement or omission was made for the purpose of obtaining benefits. This element is difficult
to challenge, but a claimant may be able to argue that, although she gave information she knew was
false, she did not know it would affect the EDD’s decision, and therefore, was not for the “purpose
of obtaining benefits.”
Examples of False Statements
Mischaracterization of the type of separation from work. A claimant who tells the EDD she was laid off
for lack of work, when in fact she was terminated, is frequently found to have made a false statement.
If the claimant honestly believed she was laid off, but was in fact terminated, she has not made a false
statement because she did not know her statement was false. For example, if an employer tells the
claimant she is laid off (but later gives the EDD a different story) or if the employer does not indicate
whether the separation is a layoff or firing, then a claimant may reasonably assume she was laid off.
However, a claimant does make a false statement if she knows she was fired but, on the advice of a
friend or lawyer, tells the EDD it was a layoff because she believes doing so will make it easier to obtain
benefits.
Mischaracterization of the reasons for the separation from work. If a claimant misstates the reasons she
was fired because she does not know the real reasons and makes an incorrect guess (an innocent
mistake), she is not considered to have made a false statement, even if her former employer’s account
of the reasons for the separation differs from her story.443 However, if she knew the true reasons for
her termination, but simply withheld or altered the information thinking it would increase her chances
of receiving benefits, then she will have made a false statement.
Failure to report earnings. A claimant is required to report any wages or contractor payments she earns
while collecting benefits. Failure to correctly report earnings, or withholding of this information on the
Continued Claim Form, can lead to a disqualification for making a false statement. The EDD compares
the claimant’s reported earnings on her claim forms with the records maintained by the Internal
Revenue Service and the state Franchise Tax Board. Therefore, it is relatively easy for the EDD to catch
claimants secretly working, or earning more than they report, while collecting benefit checks.
Furthermore, the EDD may compare these records many months after a claimant made the false
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statement and received the associated benefits, so claimants should not be fooled into believing that
they are getting away with it at the time.
Because the Continued Claim Forms are submitted contemporaneously and the claimant is expected to
fill out the forms completely and accurately,444 the EDD is unlikely to accept a claimant’s explanation of
“I just forgot to report my earnings.” A day of work is a fact too important and material for an
unemployed person to temporarily forget it.445 On the other hand, a compelling explanation for failing
to report the earnings, such as confusion or reasonable difficulty computing the precise amount of those
earnings, may be enough to show the claimant honestly did not know her response was false.
Using false identification. Knowingly using a false name, false social security number, or other false
identification to obtain benefits amounts to a false statement.446
Consequences of Making a False Statement
There are two types of false statements, which carry different disqualification periods.
False statements that did not result in the payment of benefits. The EDD will disqualify the claimant
from receiving benefits for two to thirteen weeks during a period in which she is otherwise eligible to
receive benefits and submits Continued Claim Forms. 447
False statements that did result in the payment of benefits. The EDD will disqualify the claimant from
receiving benefits for five to ten weeks during a period in which she is otherwise eligible to receive
benefits and submits Continued Claim Forms.448 Additionally, the EDD may seek to recover the overpaid
benefits and a penalty. (For more information regarding overpayments, see below.)
The length of the disqualification period (within the prescribed ranges) is at the discretion of the EDD,
but generally depends on the number and severity of the false statements.449
A claimant who is penalized with a disqualification period is not entitled to less money in benefits in the
Benefit Year. The disqualification period merely delays the receipt of benefits; it does not reduce the
claimant’s Maximum Benefit Amount.
Criminal prosecution. Claimants who make false statements may be criminally prosecuted.450 A
conviction renders a claimant ineligible for benefits for at least one year, starting with the week that the
criminal complaint was filed. The claimant also may be subject to fines and/or jail time.451 The claimant
cannot be subject to both the disqualification period (discussed above) and criminal penalties.452
Responding to the Disqualification
In response to the disqualification, a claimant can either appeal or serve the disqualification. (For more
information regarding appeals, see Chapter 6 “The Appeals Process.”) If the claimant chooses not to
appeal the disqualification (or loses the appeal), she can serve the disqualification period by submitting
Continued Claim Forms (and being otherwise eligible) for the number of disqualified weeks. If the
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claimant does not otherwise serve the disqualification period, it is automatically rescinded three years
later. 453
For more information regarding false statements, see the EDD’s Benefit Determination Guide,
Miscellaneous 45.
E. Overpayments
An overpayment occurs when a claimant receives benefits to which she was not entitled. Unless she can
meet the standard for waiving the overpayment (discussed below), a claimant is liable for the amount of
the overpayment.454
In addition to the liability for the overpayment itself, if the EDD finds that the claimant was overpaid
benefits because she willfully, for the purpose of obtaining unemployment compensation benefits,
knowingly made a false statement or representation or withheld a material fact, the EDD will also assess
a penalty equal to 30 percent of the overpayment amount.455
Overpayments and Backpay Awards
A claimant may receive a backpay award resulting from an action or grievance for wrongful termination.
The way a backpay award affects UI benefits depends on whether the award was reduced by the
amount of any UI benefits received.

If the amount of the backpay award or settlement was not reduced by the amount of UI benefits
received: the claimant is liable for paying back the amount of UI benefits received.

If the amount of the backpay award or settlement was reduced by the amount of UI benefits
received: the claimant is not liable for paying back the amount of UI benefits received.456 In such
cases, the employer shall pay to the Unemployment Fund an amount equal to the amount
subtracted from the backpay award or settlement for benefits received by the person. When an
individual has been awarded or receives backpay, the amount of the backpay shall constitute wages
paid in the period for which it is awarded.457
A mediator or arbitrator who is a party to the backpay award or settlement shall, within 30 days of the
settlement, report to the department the name and address of the employer, the amount of benefits by
which the award or settlement was reduced, and the name and social security number of the person
who received the award or settlement.458
Legal Standard for Liability for Overpayment
A claimant will not be held liable for the overpayment only if she can show all three of the following
factors are present:459
No fraud, misrepresentation, or willful nondisclosure (“false statement”). A claimant’s fraud,
misrepresentation or willful nondisclosure – referred to as a “false statement” in the context of
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overpayments – must not have led to the overpayment.460 The claimant will need to establish only this
one element to avoid the 30 percent false statement penalty.
No fault by the claimant. The claimant must have received the overpayment “without fault.” This
element differs from the false statement element because a claimant is at fault even if she negligently
makes a mistake (and that mistake falls short of a false statement) or if she knew or reasonably should
have known that she was overpaid and failed to alert the EDD.461 For example, a claimant will be
considered at fault if she failed to properly report income, even if the failure to report was reasonable
(e.g. the claimant is paid on commission and cannot calculate her weekly commissions before actually
receiving them). In contrast, a claimant is not at fault if she relied in good faith on an EDD error. A
claimant was found not to be at fault when an EDD representative told her to sign a form that the
representative had filled out and that included information the EDD knew was incorrect, even though
the claimant would have discovered the error if she had carefully read the form before signing it.462
Recovery is unfair and would unduly burden the claimant. Even if a claimant can show she innocently
received the overpayment, she will still have to repay the benefits unless the EDD or CUIAB finds that
recovering the overpayment would be “against equity and good conscience.” The EDD or CUIAB
considers several factors to determine whether forcing repayment would be against equity and good
conscience, but not all have to be present for the claimant to avoid repayment:463

The cause of the overpayment. The claimant is better off if the mistake was made solely by the
EDD, but the fact that the claimant is not at fault does not establish in and of itself that recovery
would be against equity and good conscience.464

Whether a duplicate benefit was received. Claimants who, for example, receive an overpayment
because they collect benefits from two states for the same period,465 will find it difficult to escape
repayment.466

Whether the claimant changed her position in reliance upon the receipt of benefits. If a claimant
has detrimentally changed her position in reliance upon benefit payments, the recovery of an
overpayment of benefits is against equity and good conscience.467 A claimant will be considered to
have detrimentally changed her position in reliance upon the receipt of benefits if the claimant has
taken any reasonable action or incurred a necessary financial obligation in the conduct of her affairs
that the claimant would not have taken but for the receipt of the benefits.468 For example, a
claimant changed her position in reliance upon benefits if she used the benefits solely for current
expenses and it occurred during a time period when her limited savings were diminishing.469

Whether recovery of the overpayment would impose “an extraordinary hardship” on the claimant
and, therefore, defeat the objectives of the Unemployment Insurance Code. The provisions of the
code should normally be liberally construed470 to accomplish its overall objective of reducing the
hardships of unemployment.471 Therefore, in close cases, a claimant should not be liable for an
overpayment.472 This factor requires a case-by-case comparison of the size of the overpayment with
the claimant’s present income, assets, and expenses.473
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For example, a claimant who had found full-time work and who conceded that she could easily afford to
pay back one week’s worth of benefits was found liable for the overpayment, even though the
overpayment was solely the EDD’s fault.474 In another case, however, recovery of even a small
overpayment was against equity and good conscience for a claimant who remained unemployed after
five months and who had depleted her savings account by half.475
The Overpayment Process: EDD Notice and Claimant Options
To issue an overpayment, the EDD conducts a two-step process, both of which present the claimant with
different response options.
Step 1: Notice of Potential Overpayment.
Whenever the EDD determines that an overpayment is probable, it shall notify the claimant of the
probable overpayment, the claimant's right to request that the department waive the overpayment, and
the standards to obtain a waiver of the overpayment.476 The department shall assist and advise the
claimant in meeting her obligation to furnish the department with all information necessary for the
department to determine whether there is an overpayment, whether the claimant is entitled to waiver
of the overpayment and for establishing the repayment schedule.477
To meet these requirements, the EDD typically sends the claimant a “Notice of Potential Overpayment,”
which apprises the claimant of the basis for a potential overpayment and affords the claimant an
opportunity to seek a waiver of the repayment by responding with countervailing evidence, including
information about the claimant’s financial situation (in order to assist the claimant in establishing an
“extraordinary hardship”). To facilitate this process, the EDD typically provides a Financial Disclosure
form along with the Notice.
(For more information regarding the legal standard for seeking a waiver of any overpayment, see “Legal
Standard for Liability for Overpayment” above.
Step 2: Notice of Overpayment.
If the EDD determines that a claimant is still liable for an overpayment (i.e. any evidence or explanation
provided by the claimant was insufficient), the EDD shall determine the amount of the overpayment and
any penalty assessment, and shall notify the claimant of the amount of the overpayment, the cause of
the overpayment, the reasons for denial of waiver (if waiver is denied), the terms of the repayment
schedule, and the right to appeal to an Administrative Law Judge and to a hearing on all issues regarding
the overpayment (including any determination denying waiver of the overpayment and the terms of
such repayment schedule).478
In the absence of fraud, misrepresentation, or willful nondisclosure, notice of the overpayment
determination shall be mailed or personally served within the latest of the following periods:

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Not later than one year after the close of the Benefit Year in which the overpayment was made.

Not later than six months after the date a backpay award was made.479
To meet these requirements, the EDD sends the claimant a “Notice of Overpayment” (Form DE 1444CT)
and a blank appeal form. A sample of this notice is available online at
http://www.edd.ca.gov/pdf_pub_ctr/de1444ct.pdf.
A claimant has essentially three options in responding to a Notice of Overpayment:

Appeal the Overpayment. The claimant can elect to appeal the overpayment within twenty days
from the date of mailing or serving of the notice of overpayment.480 The 20-day period may be
extended for good cause. "Good cause," as used in this section, shall include, but not be limited to,
mistake, inadvertence, surprise, or excusable neglect.481 (For more information regarding appeals,
see Chapter 6 “The Appeals Process.”)

Repay the Overpayment (and any applicable penalties). The claimant can elect to repay the
benefits. She should make a check or money order payable to EDD, include her name and social
security account on the check or money order, and mail the payment directly to:
EDD Cashiering, Benefit Recovery
State of California
PO Box 826806
Sacramento, CA 94206-0001
The EDD now also provides for credit card payments by telephone and online. (For more
information, see the EDD’s “How to Pay,” available online at
http://www.edd.ca.gov/Unemployment/How_to_Pay.htm.) Claimants who are unable to repay the
benefits in a lump sum can normally arrange with the EDD to make payments in installments. If at
any time a claimant requests the department to adjust her repayment schedule, the department
shall do so if the claimant demonstrates that there has been a material change in her financial
condition.482 If the overpayment interviewer and the claimant cannot agree on the requested
adjustment, the field office manager shall prescribe the appropriate repayment schedule
adjustment, if any. No administrative appeal is provided from an adjustment of or refusal to adjust
a repayment schedule.483
Repaying an overpayment does not remove a disqualification. For example, overpayments are often
issued in conjunction with a false statement penalty. Paying the overpayment does not remove the
associated false statement penalty of a five- to ten-week disqualification period.

Ignore the Overpayment. This option has consequences. The EDD may offset overpayments of
unemployment insurance benefits against any amount of state disability benefits or unemployment
insurance benefits to which a claimant may become entitled within six years of the date of the
mailing or personal service of the notice of overpayment determination.484 Additionally, within one
year in most cases, or three years if a claimant’s false statement caused the overpayment, the EDD
may seek a judgment to effect other forms of lien and garnishment.485 The EDD also works with
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other state agencies, and overpayments may be deducted from any state tax refunds, lottery
winnings, or other state sources.486
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CHAPTER 6. THE APPEALS PROCESS
This Chapter discusses, in chronological order, all the potential steps involved in appealing an EDD
determination – from submitting the initial first-stage appeal to the California Unemployment Insurance
Appeals Board (CUIAB) through filing a petition for writ of mandate in Superior Court. It provides
detailed, comprehensive guidance for the advocate who intends to provide full representation to a
claimant throughout the appeals process. Advocates providing more limited services should seek out
the specific, relevant sections of the Chapter. You do not have to be a licensed attorney to represent a
claimant in an appeal hearing.
Appeals are initiated by either an employer or a claimant. Employer appeals are limited to those EDD
determinations regarding the nature of a claimant’s separation (and only when the employer has
maintained party status by timely responding to the EDD’s “Notice of UI Claim Filed”). A claimant can
appeal any EDD determination relating to her claim. (For more information regarding EDD
determinations, see Chapter 4 “EDD Determinations.”) All EDD determinations (e.g. initial eligibility
determinations, ongoing eligibility determinations, false statement disqualifications, overpayments,
etc.) are made in writing and include an explanation of the claimant’s appeal rights (including the appeal
deadline) and a blank appeal form. Appeals of EDD determinations are referred to as first-stage appeals
to distinguish them from later appeals.
Claimants should be reminded to continue submitting their Continued Claim Forms throughout the
appellate process. If a claimant ultimately prevails in an appeal, she will only be entitled to the back
benefits for those weeks when she certified that she was otherwise eligible for benefits (by submitting
her Continued Claim Forms). A claimant may need to contact the EDD to request Continued Claim
Forms for the period while the appeal is pending.
A. Submitting the Appeal
Claimants must submit their appeal in writing.487 The EDD is required to send an Appeal Form (Form DE
1000M) with every disqualification notice. A sample of this form is available in English/Spanish at
http://www.edd.ca.gov/pdf_pub_ctr/de1000m.pdf.
Instead of using the appeal form, the claimant can submit a letter stating that she wants to appeal. The
letter must provide the claimant’s name, address, and social security number.488 It is good practice to
also include the employer’s name and address, and the case number. If the claimant will need an
interpreter or any other special accommodation at the appeal hearing, she should indicate this on the
form or letter.489 Finally, the claimant should include her signature and the date.
The form or letter should be sent to the EDD at the address listed at the top of the “Notice of
Determination” (or “Notice of Overpayment”).
Keep it Brief
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The written appeal will become part of the record at the hearing, accessible to both the Administrative
Law Judge and the opposing party. The appeal need not include a lengthy statement of the reasons a
claimant disagrees with the EDD’s decision.490 In fact, the claimant is better off not specifying why she
disagrees with the EDD because:

she may unnecessarily reveal information that will hurt her case,

she may inadvertently assist the opposing party by revealing her strategy for the appeal, and

her credibility may be questioned if the appeal form contradicts her later testimony at the hearing
or leaves out key facts.
Furthermore, there is nothing gained from a detailed appeal letter. Our experience is that the EDD
almost never reconsiders its determinations (see “EDD Re-Determinations” below), thus obviating the
incentive to provide compelling details.
For these reasons, we strongly encourage claimants to be as brief as possible with their written appeals.
If the claimant uses the EDD Appeal Form, the claimant can simply complete the form by writing: “I
disagree with the department’s decision because: the EDD made a mistake and I am entitled to benefits
under the law.”
Filing Deadline
Claimants have 20 calendar days from the date of mailing, indicated on the upper right-hand corner of
the disqualification notice (e.g. “Notice of Determination/Ruling” or “Notice of Overpayment”), to
appeal a denial of benefits491 or an overpayment.492 The appeal is considered filed on the date of
mailing, presumed to be the official postmark date. However, a claimant can establish a timely filing, if
necessary, by credibly testifying that she deposited the appeal letter in a mailbox earlier than the
postmark date.493 Additionally, if the 20th day falls on a weekend or holiday, the last day for filing the
appeal is the next regular business day.494
Late Appeals
A claimant who files late will have her appeal dismissed, unless she can show good cause for missing the
deadline.495 Good cause is normally defined as circumstances beyond the claimant’s control that she
could not have reasonably anticipated and that prevented her from filing on time. Good cause includes,
but is not limited to, mistake, inadvertence, surprise or excusable neglect.496 For example, a claimant
would have good cause for filing late if she received the Notice of Determination late because the EDD
mistyped her address.497 In determining good cause, the Administrative Law Judge will consider all
relevant factors, including:498

The length of delay.

The reason for the delay.
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
The diligence of the claimant in acting to protect her rights (e.g. did she inform the EDD of any
address changes and have her mail forwarded).

Whether any prejudice will result to the employer or the EDD if relief is granted (e.g. will witnesses
and pertinent records be unavailable).
In general, the more substantial the delay, the more compelling the claimant’s reasons must be.499 For
example, filing two or three days late because the claimant’s attorney made a mistake is probably good
cause.500 On the other hand, filing a month late because the claimant, upset over the denial of benefits,
did not read the portion of the determination notice explaining her appeal rights probably is not good
cause.501 A claimant also should argue that the California Supreme Court has held that good cause
should be broadly construed to prevent unsophisticated claimants from being denied unemployment
benefits over a technicality.502
Withdrawing an Appeal
The appealing party can withdraw the appeal at any time before the Administrative Law Judge’s decision
is issued, even during the hearing itself, for any reason.503 The party should notify the Office of Appeals
of the intention to withdraw. A party who withdraws an appeal can have it reinstated only if she shows
good cause for the reinstatement and makes her request within 20 days after the dismissal order (or
shows good cause for missing this deadline).504
EDD Re-Determinations
The EDD has the authority to issue a re-determination of a prior decision within fifteen days after a
claimant files an appeal (and prior to the administrative hearing) based upon a review of the appeal,
documents, and statements submitted in support of the appeal and EDD records. The EDD is required
to assign staff the responsibility of reviewing appeals and issuing re-determinations.505
It is our experience that the EDD does not consider reversing a decision based on an appeal. Regardless
of the details of the case or the merits of the appeal, the EDD responds to appeals in the exact same
manner: the appeal is routed to the California Unemployment Insurance Appeals Board (CUIAB) for a
hearing before an Administrative Law Judge. Therefore, it is important to keep in mind that the goal of
initiating the appeal process is simply to get to an appeal hearing; no more, no less.
Acknowledgment of Appeal
Following a claimant appeal, the EDD will send the parties written acknowledgment of the appeal. The
EDD will also start (or resume) sending Continued Claim Forms after the acknowledgment of appeal. For
each week while she is awaiting the appeal hearing, the claimant should complete and return the forms
to the EDD, so that she can obtain benefits retroactively if she is successful on appeal. If the EDD does
not send the Continued Claim Forms, the claimant should ask the EDD for the forms, and, in the
meantime, keep her own records for each week addressing the questions asked on the Continued Claim
Form.
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Employer Appeals
Upon finding a claimant eligible for benefits, if the most recent employer submitted a timely response to
the “Notice of UI Claim Filed,” the EDD will mail this employer a “Notice of Determination/Ruling” and
an appeal form.506 The Notice will briefly explain the basis for the determination, the status of the
employer’s reserve account (i.e. whether it is subject to charges), and the employer’s appeal rights. (For
more information regarding an employer’s response to a “Notice of UI Claim Filed,” see “Submitting the
Application” in Chapter 4.)
If the employer appeals, the claimant will first learn of the appeal via a “Notice of Appeal and
Transmittal of Appealed Determination” (Form DE 6315), which will be accompanied by a copy of the
“Notice of Determination/Ruling” that prompted the employer appeal. (Reminder: claimants are not
provided a copy of this Notice of Determination when they are found eligible for benefits.)
The Notice specifies that if the claimant is otherwise eligible, she will continue to receive benefits for
each week she is unemployed and submits a Continued Claim Form. Therefore, the claimant should
continue submitting Continued Claim Forms in order to receive payments pending the appeal hearing.507
If the employer wins the appeal (and any subsequent appeals), the claimant may have to pay back any
benefits received after receiving notice of the employer appeal.508 This, however, isn’t automatic. In
order to seek a reimbursement of back benefits, the EDD will need to initiate the “overpayment”
process against the claimant, which includes notice and an opportunity to appeal. (For more
information regarding overpayments, see “Overpayments” in Chapter 5.)
A claimant cannot be required to pay back any benefits she received before first being notified of her
employer’s appeal and notified that she may be required to repay the benefits in the event of a reversal
by an Administrative Law Judge.509 Furthermore, a claimant will not have to repay benefits if both the
EDD and the Administrative Law Judge awarded her benefits, but she then loses on appeal to the CUIAB
in Sacramento.510 Repayment also is not required if the claimant loses in later appeals in state court
after a favorable final ruling by CUIAB.511
B. Notice of Hearing
After the appeal is filed and the EDD acknowledges the appeal, the Office of Appeals will send all the
parties a “Notice of Hearing.” This Notice must be mailed to, but not necessarily received by, the
claimant at least 10 days before the hearing date.512
Date, Time, and Place of Hearing
The Notice provides the time, date, and place of the hearing, and the name of the Administrative Law
Judge who will preside over the hearing.513
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If the employer’s name and address are not listed on the Notice (usually in the upper left corner), it
means that the employer is not a party to the appeal, and therefore will not receive notice of the
hearing.
Interpreter
The Notice will indicate if an interpreter is scheduled to participate in the hearing (typically based on
whether the claimant requested one in the course of appealing). If the claimant needs an interpreter
and the Notice does not indicate that one will be participating, the claimant should call the Office of
Appeals immediately to request one. The phone number for the Office of Appeals is listed on the
Notice.
The Issue(s) on Appeal
The Notice of Hearing states the issue or issues that the Administrative Law Judge will decide at the
hearing. The claimant should focus on these issues because, regardless of what else may have
happened between the claimant and the EDD, or the claimant and her employer, the Administrative Law
Judge very rarely takes evidence on an issue not in the notice.514 Related, the absence of an issue can
provide a clear basis for objecting to certain employer testimony at the hearing. If the claimant believes
a relevant issue has not been listed on the Notice of Hearing, she should contact the Office of Appeals as
soon as possible to request that the additional issue be added.
The notice lists the issues by citing to the applicable Unemployment Insurance Code section and
summarizing what that section requires. This section of the Notice is boilerplate legal language and
notoriously confusing; you’ll likely need to translate it for the claimant. The notice may identify more
than one issue on appeal or more than one reason for the stated category of disqualification. For
example, a claimant whom the EDD disqualified because she was fired for misconduct from her most
recent job, will often see two code sections on her appeal hearing notice:

“1256. Did the claimant voluntarily leave employment without good cause. Was the claimant
discharged for misconduct connected with the work” and

“1030/32. Should the employer’s reserve account be charged for any benefits paid to the claimant.”
In this common example, the first issue – 1256 – seems to raise two separate questions. This, however,
shouldn’t mislead or alarm the claimant. There may very well be no dispute about whether the claimant
voluntarily left or was terminated, in which case only the legal standard applicable for the type of
separation will be at issue. Additionally, the Administrative Law Judge will not ask questions or take
testimony about whether the employer’s reserve account is subject to charges. The same facts
surrounding the separation also apply to whether the employer’s account will be charged.
If the claimant did not file her appeal on time, the notice will list this issue:

“LATE 1 Was the appeal filed within 20 days of notice. If not, is there good cause for any delay (UI
sections 1030(c), 1328, 1377, 2707.2 2737.”
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At the hearing, the Administrative Law Judge will normally accept evidence both on whether the
claimant had good cause to file late and on the merits of her appeal. However, the Administrative Law
Judge’s written decision will first make a “threshold” decision about whether the claimant had good
cause for filing late. If the Administrative Law Judge determines that the claimant did not have good
cause for filing late, she will not decide the merits of the case.
If the Claimant Cannot Attend the Scheduled Hearing
If the claimant has a serious scheduling conflict with the hearing date, she should call the Office of
Appeals at the phone number given on the hearing notice immediately and ask for the hearing to be
rescheduled. The appeals office does not have to grant a continuance unless the claimant shows good
cause,515 (i.e. a reason that effectively prevents her from attending on the scheduled date). A conflicting
personal obligation usually will not constitute good cause for rescheduling, unless the claimant has no
reasonable alternatives. On the other hand, the claimant may have good cause if the notice was not
mailed at least 10 days before hearing date. If the claimant’s mail arrived late and it was not her fault,
she may also have a good argument for a continuance. (She is far less likely to succeed if it was a mere
failure to frequently check her mailbox.) The claimant’s case may be dismissed if she appealed and she
does not appear at the hearing.516 However, she can request another hearing at which time, before
presenting her case on the merits, she will be required to show good cause for not appearing at the first
hearing.
If the claimant knows before the hearing is set that she will be unavailable during a timeframe when the
hearing might be scheduled, she may have a better chance of avoiding the scheduling conflict or getting
a continuance by advising the Office of Appeals of the conflict before it sets a hearing date. If she does
so in writing, this letter will be in her file as proof of her diligent attempts to attend the hearing.
C. Interviewing the Claimant
If you intend to represent a claimant at an appeal hearing (or if you are evaluating whether to do so), it
is essential that you conduct a detailed and in-person (if possible) intake interview. It is not uncommon
to have as little as a few days to prepare for a hearing, so it’s important to take advantage of this
opportunity to cover (at least) the following topics:

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Get the facts! Make sure you have a clear timeline and understand all the relevant facts. Eliciting
information from claimants is a skill that requires substantial practice. You may want to begin with
open-ended background questions and transition into more closed-end, clarifying questions. This is
your opportunity to make sure you really understand the facts of the case. For example, you may
know the claimant’s reason for quitting her job and think that reason amounts to good cause, but
you’ll need to figure out what steps, if any, the claimant took to resolve the problems before
resigning. Alternatively, if the claimant was terminated for absenteeism, you’ll need to learn all the
details regarding how often she was absent, whether she had advance permission, why she missed
those days of work, and whether or not she was warned about her absences. These details are
often crucial to the case and will dictate how you prepare for the hearing.
It is often fruitful, particularly in separation cases, to ask the claimant to explain the facts from the
perspective of the former employer. Ask the claimant to speculate about how the former employer
will likely characterize the key events. This provides the claimant with an opportunity to explain any
weaknesses in the case, which might not otherwise come out.
Use the issues listed on the Hearing Notice as your guide to ensure you don’t spend time on facts
that do not relate to the issues that will be decided at the hearing.

The appeal file. Make arrangements with the claimant to get a copy of the appeal file. (For more
information, see “Getting and Reviewing the Appeal File” below.)

Documents, witnesses, and statements. Be sure to ask the claimant to bring any potentially relevant
documents to this first meeting, including any documents from the EDD and CUIAB, and any
potentially relevant employment documents. This is also the time to brainstorm with the claimant
about the necessity of seeking out witnesses (or witness statements) and procuring any documents
not currently in the claimant’s possession. (For more information, see “Securing Documents,
Witnesses, and Statements” below.)

Retainer and Authorization. If you intend to enter into a retainer agreement with the claimant, this
is an appropriate time to do so. One good reason to enter into such an agreement is to specify with
clarity the scope and extent of your involvement in the claimant’s appeal. If necessary, this is also a
good time to have the claimant sign an “Authorization to Disclose Information” form (which, if
necessary, will assist you in securing the claimant’s Appeal File on her behalf).
Even if you do not enter into a formal, written retainer agreement with the claimant, you and the
claimant should be absolutely clear about the role you will play in the appeals process.

Next steps. In addition to arrangements regarding the appeal file and any witnesses or documents,
this is the time to set up a second (and final) meeting with the claimant. At this next meeting, you’ll
prepare the claimant for the hearing, so it should take place as close to the hearing date as possible.
If necessary, you can do this meeting the day of the hearing. (For more information, see “Preparing
Claimant for the Hearing” below.)
When interviewing claimants at this stage, it is important to keep in mind that most claimants have
recently lost a job, are often in dire (or near dire) financial straits, and are facing the added pressure of
fighting for unemployment insurance benefits that will usually only meet a fraction of their financial
needs. This is almost always a very difficult time in a claimant’s life, and interviews about these topics
should be conducted with sensitivity.
D. Getting and Reviewing the Appeal File
Shortly after a claimant or employer submits an appeal, the EDD gathers all its paper documents and
sends them to the Office of Appeals. These documents are referred to here as the “Appeal File.” The
Appeal File is an excellent source of potentially relevant documents and, importantly, is the only set of
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documents that the Administrative Law Judge will review prior to the hearing and (barring any
objections) make part of the appeal hearing record.
Claimant’s Right to EDD Records
A claimant is entitled to her EDD records in order to “properly present a claim for benefits” or “to
acquaint *the claimant+ or her authorized agent with her existing or prospective right to benefits.”517
Upon request by telephone or email, the EDD will mail a paper copy of the requested information to a
claimant within ten days.
The claimant has an absolute right to inspect and copy its contents without charge.518 The claimant can
gain access to her file as soon as it is transferred to the Office of Appeals for the hearing. This transfer
generally occurs a week or two before the Notice of Hearing is sent out, or three weeks before the
hearing itself. Once the claimant receives the Notice of Hearing, her appeal file has already been
transferred to the Office of Appeals and is ready for viewing. Advise the claimant to physically go to the
Office of Appeals immediately to obtain a copy of her file so that she (and her advocate) can review it.
(Note: the Notice of Hearing tells claimants to arrive fifteen minutes before the hearing to view the file,
but does not inform them that they can come earlier to obtain a copy.) If the claimant has not yet
received her Notice of Hearing, she can phone the Office of Appeals and ask if her file is available for her
to copy. The Office of Appeals is generally receptive to claimants wishing to copy their files. However, if
any claimant is denied access to her file, she should politely and respectfully assert her right to access
the information and, if necessary, ask to speak with the presiding judge to obtain it.
If the claimant cannot get the Appeal File in-person, she can call the Office of Appeals and ask that a
copy be sent by fax. The Office of Appeals may even be willing to fax the Appeal File directly to the
claimant’s representative. If you want to obtain the Appeal File on behalf of the claimant – in-person or
by fax – you should be prepared to fax or deliver an Authorization to Disclose Information form, which
clearly indicates that the claimant has given you the authority to obtain this information on her behalf.
Review the Appeal File
The appeal file contains important information about the claim. You should become intimately familiar
with its contents because the Administrative Law Judge will be referring to documents in the file
throughout the hearing, and because the file contains vital information from the claimant, the employer,
and the EDD. In most files, reviewing documents from back to front, you will find the following:

Claim Notes. These are dot matrix printouts of EDD computer screens that reflect various activities
on the claim. These are difficult to decipher, but you can skim these notes, as necessary, to put
together a timeline of all notices and phone calls between the claimant and the EDD.

Employer Protest. This is the employer’s written response to the EDD’s “Notice of Unemployment
Insurance Claim Filed.” The employer has ten days after receiving this Notice to provide facts to the
EDD that may affect the claim. If the employer opted to provide this information (many do not), it
may represent one of the only written explanations of how the claimant separated from the job. If
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there are documents in the protest that seem damaging to the claimant, be sure to discuss these
documents in detail with the claimant.

Record of Claim Status Interview. This is a set of handwritten or computer-generated notes from
the interviews the EDD conducted with the claimant and/or the employer. Compare the claimant’s
statements with her explanation of the separation and carefully read the employer’s statements as
they may be the only indication of the employer’s allegations.

Notice of Determination. This is the document sent to the claimant and/or the employer that
describes the EDD’s initial benefit determination. Most of the language is boilerplate and generally
unhelpful. The first couple of sentences of the second paragraph normally contain the only
language that is personalized to the claimant.

Appeal letter. If the employer filed the appeal, this letter likely will contain vital information
regarding its challenge to the claimant’s benefits. If the claimant included a lengthy explanation of
her position, you may need to address any problems, inconsistencies, etc.

Notice of Hearing. You should already have a copy of this. It is described above.
E. Securing Documents, Witnesses, and Statements
Witnesses are rare at appeal hearings, usually because most witnesses will be former co-workers of the
claimant and may fear retaliation if they testify on behalf of the claimant. Although such retaliation is
illegal, workers are often understandably not willing to take such a risk. A witness who still works for
the employer may even lie at the hearing to protect her job; a lying witness is worse than no witness.
If the claimant decides she would like to call a witness on her behalf, make sure the witness is relevant
to the case. A relevant witness has first-hand knowledge of facts bearing directly on the contested
issue, not simply a friend who can verify the claimant was a “good worker.”
Witnesses can appear personally at the hearing or submit written testimony by affidavit. An affidavit is
simply a statement in which the witness describes those matters she knows, or has observed, that have
direct bearing on an issue in the case. The witness must sign and date the affidavit; a sworn affidavit is
preferable. A sworn affidavit is simply an affidavit in which the sentence before the signature line reads:
“I swear under the penalty of perjury and the laws of the state of California that the
foregoing is true and correct to the best of my knowledge and belief.”
Affidavits are generally easier to obtain from a witness than personal appearance at a hearing.
However, testimony given in-person is entitled to more weight than an affidavit (even if the affidavit is
sworn under the penalty of perjury) because the other party has an opportunity to cross-examine the inperson witness.519
Witness and Document Subpoenas
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A claimant can secure personal attendance of a witness (and further require that the witness bring
specific documents) by asking the Office of Appeals to issue a subpoena. Claimants should think
carefully before requesting a subpoena for a witness who is hesitant to appear voluntarily because that
witness may well present testimony that is hostile to the claimant.
The claimant may request a subpoena for strategic reasons. For example, a witness, particularly a
witness who still works for the employer, may agree to appear only if she is “forced” to, so that her
employer will not think she is voluntarily acting against its interests. Witnesses who testify pursuant to a
subpoena also have some measure of job protection for any work they miss in responding to the
subpoena.520 Another strategic reason to request a subpoena may be to enable the claimant to ask for a
continuance if the subpoenaed witness does not appear. Non-appearance of a witness who has been
subpoenaed will normally constitute good cause for a continuance. If the witness has not been
subpoenaed, the Administrative Law Judge will likely refuse to reschedule the hearing.
If a claimant decides it is prudent to seek a subpoena, she has very little time to do so and must act
quickly. As a general rule, a subpoena should be requested at least a week before the hearing. To
request a subpoena, the claimant should visit the Office of Appeals and complete a Subpoena
Declaration. An Administrative Law Judge must approve the request before the subpoena will be issued.
Normally an Administrative Law Judge is on duty in the Office of Appeals who is responsible for, among
other tasks, reviewing subpoena requests. There are two types of subpoenas.

Document Subpoenas. A document subpoena is referred to as a “Subpoena Duces Tecum.” To
obtain a document subpoena for one or more documents, the claimant must complete a subpoena
declaration at the Office of Appeals stating 1) the name(s) and a description of the document(s)
requested, 2) the name of the person in possession of the document(s), and 3) the materiality of the
documents to an issue in the case. If the Administrative Law Judge is satisfied that the documents
are material to the issue, she will sign the subpoena, which must then be properly served (see
below).

Witness Subpoenas. A personal subpoena compels the attendance of a witness at the hearing. If
the witness fails to appear, the subpoena can be enforced by application to a superior court. To
obtain a personal subpoena, the claimant must complete a subpoena declaration at the Office of
Appeals stating 1) the name of the witness, and 2) the materiality of the witness to an issue in the
case (i.e. what she will testify to). As with a document subpoena, an Administrative Law Judge must
approve the subpoena request and the subpoena must be properly served (see below).
Service of a Subpoena. A witness subpoena or document subpoena (subpoena duces tecum) must be
personally served on either the witness or the employer. The claimant is not permitted to serve the
subpoena herself, but may ask a friend or her representative to do so. When serving an employer,
serving the person at the front desk is generally acceptable. The person who serves the witness or
employer must then complete a proof of service indicating who was served and when service was
completed. The subpoena is not enforceable unless a completed proof of service is filed with the Office
of Appeals.
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Notices to Attend (or Notice to Attend and Produce)
If a claimant does not want to go to the trouble of obtaining and serving a subpoena for a witness or a
document, she can request a Notice to Attend (or Notice to Attend and Produce). This Notice does not
compel the witness to appear (i.e. there are no legal sanctions if the witness does not comply) but it
does inform her that she should appear before the Administrative Law Judge and present testimony
(and, if requested, bring specific documents). Although it does not carry the same force of law, a Notice
to Attend (or Notice to Attend and Produce) is easier to obtain than a subpoena, and the Office of
Appeals will arrange service of the Notice by mail.
F. Developing a Theory of the Case
An important step in preparing for the hearing is to create a basic theory of the case. The theory of the
case should be a clear, main theme supported by all of the other information. Develop the theory of the
case by fitting the facts of the case to the most advantageous application of the law (e.g.
Unemployment Insurance Code, regulations, and supporting case law).
1. Misconduct Cases
Structure the theory of the case for a misconduct appeal by disputing one or more elements of
misconduct or by asserting one or more established defenses to a misconduct charge.
Disputing the elements of misconduct
As discussed in “No-Fault Separation from Most Recent Work” in Chapter 3, the employer must prove
four elements to sustain a charge of misconduct. Misconduct is defined as (a) a material duty owed to
the employer, (b) that was substantially breached, (c) the breach must be willful or wanton, and (d) it
must tend to harm the employer’s business interests. To prevail, the claimant must only convince an
Administrative Law Judge that one or more of these elements was not present. This could be
accomplished in any one of the following ways:

Argue that the claimant did not owe the duty in question. For example, employees do not owe their
employers a duty to commit dishonest or illegal acts, nor do they owe a duty to perform a job
assignment that endangers their own safety or the safety of others. Also, claimants do not owe a
duty to perform duties outside the scope of employment (e.g. personal errands for a supervisor).

Argue that the breach was trivial, not substantial. Administrative Law Judges normally rely on a
common sense definition of substantial. For example, three days away from work without
permission would likely be substantial, whereas being ten minutes late for work one time would be
trivial.

Argue that the breach was neither willful nor wanton. This is normally the key element the
employer will have to prove. It must show the claimant knew or reasonably should have known her
behavior was a breach of the duty in question. You can argue that the claimant’s conduct was
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merely a good faith error in judgment or a case of ordinary negligence. This is easier to prove if the
claimant was not warned about her behavior, either verbally or in writing, or if she can show the
employer generally accepted the type of behavior she is accused of engaging in.

Argue that no harm to the employer’s business interests could flow from the claimant’s behavior.
This element is difficult to dispute because the employer merely needs to show the behavior tends
to harm its interests, not that the claimant’s actions actually damaged the business.
Established defenses to a misconduct charge
The theory of a misconduct case should assert any applicable defenses. (These defenses, including poor
performance, lack of causal connection, and employer condonation, are discussed in “No-Fault
Separation from Most Recent Work” in Chapter 3.)
2. Voluntary Quit Cases
The definition of good cause for a voluntary quit, and examples of the application of that definition to
the most common disputes are described in “Quits” in Chapter 3. In contested cases, the employee
generally bears the burden of proving her reasons for leaving constitute good cause. Structure the
theory of a voluntary quit case in one of the following ways:

If the claimant has more than one reason for quitting, argue the Rabago rule. In many cases, an
employee might have more than one reason for quitting. Under established case law (Rabago v.
UIAB), an employee will be found to have quit with good cause as long as one of her purported
reasons constitutes good cause and that reason was a “substantial motivating factor” in her decision
to resign.521

Analogize the case to established reasons for good cause. The most common reasons employees
normally quit their jobs (e.g. a compelling domestic situation, a reasonable fear for health or safety,
or intolerable working conditions) and the statutes, regulations, and case law that define some of
those reasons as good cause are discussed in “Quits” in Chapter 3.

If there is no case on point, argue based on the definition. Good cause is “a real substantial and
compelling reason of such nature as would cause a reasonable person genuinely desirous of
retaining employment to take similar action.”522 If the examples from “Quits” in Chapter 3 are not
applicable to a particular case, argue that a reasonable person would have quit her job under the
circumstances your client endured.

Be sure the client did not negate good cause. In some cases, the claimant may have had good cause
for quitting but failed to take reasonable steps to preserve her job before quitting.
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3. Able and Available Cases
The requirements that a claimant be “able” and “available” to accept work are discussed in “Able to
Work” and “Available for Suitable Work” in Chapter 3. The structure of the theory of the case for an
able or available denial will vary considerably depending on the facts involved. Generally, the claimant
should be prepared to show that any limitations the EDD determined she has placed on her ability to
accept work are trivial and will not substantially affect her chances of becoming employed. For
example, if the EDD determines the claimant is not available for work because she has limited the
geographical area of her work search, the claimant should be prepared to show how far she is willing to
travel to obtain work and what forms of transportation she can use (including carpools and public
transportation). If, on the other hand, the EDD determined that school or childcare commitments make
her unavailable for work, the claimant may be able to show creative ways whereby she can work fulltime and fulfill these other obligations (e.g. childcare arrangements with friends or family or a
modification of her school schedule that would allow for full-time work). Whatever the situation, be
creative and think of ways to balance commitments that the EDD may not have considered in making its
initial determination.
4. Overpayment Cases
As discussed in “Overpayments” in Chapter 5, a claimant who is overpaid benefits will be required to
repay the amount of the overpayment to the EDD unless all of the following elements are present:



The overpayment was not due to fraud, misrepresentation or willful nondisclosure by the claimant;
The overpayment was received without fault; and
The recovery of the overpayment would be “against equity and good conscience.”
If the overpayment resulted from a claimant’s false statement, she also will be liable for a penalty equal
to 30 percent of the overpaid benefits. The theory of the case will depend on both the reasons for the
overpayment and the client’s financial condition at the time the EDD requests repayment.
The reason for the overpayment. The various causes of overpayments are described in “Overpayments”
in Chapter 5. If the EDD believes the claimant was overpaid because of an alleged false statement, the
theory of the case should attempt to show that either 1) the claimant did not make the alleged
statement or omission, or 2) if she did make the statement or omission, she had a reasonable basis on
which to do so. If the claimant was overpaid because of an EDD mistake, this portion of the case should
be fairly straightforward because the claimant is not guilty of fraud and received the money without
fault. Whatever the reason for the overpayment, the claimant will still be required to pay it back unless
she can convince the judge she cannot afford it.
Argue that the client cannot afford to repay the overpayment. Even if the client did not commit fraud
and receiving extra benefits was not her fault, the client will still need to show that recovery of the
money would be “against equity and good conscience.” This element of a case, which is described in
“Overpayments” in Chapter 5, essentially requires that the claimant show financial hardship to avoid
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repayment. She will be asked about her ability to pay her current expenses and should be prepared to
detail her income, expenses, assets, and debts. She also may avoid liability for repayment by showing
she changed her position in reliance on the money received, but the Administrative Law Judge will
probably weigh this reliance against the lack of hardship on the claimant. Finally, you can argue that
requiring repayment would defeat the objectives of the Unemployment Insurance code, which is to be
“liberally construed to further the legislative objective of reducing the hardship of unemployment.”523
G. Drafting Examination Questions and the Closing Argument
Having a well-reasoned and thorough set of questions for parties and witnesses is fundamental to
asserting the claimant’s rights and providing her with quality representation. Craft questions not only to
emphasize the points that build the theory of the case, but also to anticipate employer defenses and
responses.
Although it is impossible to know exactly what will transpire at the hearing, it is helpful to prepare
questions and a closing argument that anticipate employer arguments. If the employer does not raise a
particular argument, simply do not use the corresponding questions or closing argument section. If the
employer does raise the argument, you are prepared.
Basic Guidelines for Crafting Questions
The theory of the case should guide the questions. Group questions according to each separate issue
within the appeal. For example, if the claimant has a procedural issue, such as whether she had good
cause for a late appeal, and a substantive issue, such as whether she was fired for misconduct, these
issues should be separated when drafting direct examination questions. More complicated issues can
be subdivided. For example, if a claimant quit her job for several reasons, each of these purported
reasons can be a separate section within the direct exam. This kind of grouping makes it easier to keep
the information organized and accessible.
Do not ask questions that do not have a clear connection to the issues in the case (as described in the
Notice of Hearing), even if the client is upset about an unrelated workplace issue. For example, if the
issue is whether the claimant’s tardiness amounts to misconduct, do not ask questions that explore how
often she was able to take a break at work.
Questions should not be compound inquiries that compel the witness to respond to multiple inquiries or
give complicated, multi-part answers.
Make sure to identify the source of the information in a question, particularly if the question is aimed to
elicit a response related to earlier testimony. For example, “Ms. Smith, you testified that you tried to
resolve this situation with your employer. Can you explain what you did to try and make things better?”
Questions should not assume facts not in evidence, meaning they should not encompass any
information that has not been previously testified to or is not already in the record. In the example
above, if the claimant had not actually testified that she had previously tried to resolve the situation,
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asking her how she tried to do so would assume a fact not in evidence. Representatives should not be
presenting any new information.
Direct Examination
Typically, the Administrative Law Judge will begin the questioning with basic questions about the parties
and the claim (e.g. names of parties, duration of employment, etc.). You should, nevertheless, be
prepared with these basic questions as well because the Administrative Law Judge may turn the entire
direct over to you.
Direct examination should be designed to track the issues in the case and ensure that favorable
testimony can be offered on every element of every claim. To limit objections from the opposing party
that may be sustained by the Administrative Law Judge, do not ask leading questions (e.g. “Isn’t it true
that…?”) unless the issue is not critical, and do not inquire into irrelevant matters. Hearsay testimony is
generally admissible but disfavored and entitled to less weight. For more information regarding the
admissibility of evidence at hearings, see “The Hearing” below.
To keep a nervous claimant “on track,” avoid questions that are compound, open-ended, or invite an
open-ended response (but it’s OK to ask open-ended questions to a confident witness).
If you have time, you also should write the answers that the questions are expected to elicit (according
to the information the claimant has already provided). Drafting expected answers in advance will better
ensure a good flow of questions and should allow any remaining holes in the claimant’s story to easily
be identified. Knowing the answer to a question also allows you to check off (and not ask) a specific
question if the information it was designed to elicit comes out at the hearing some other way.
If you intend to submit any documents into the record, you will need to draft questions that lay the
foundation for each document. As described in “The Hearing” below, laying the foundation means
asking questions to elicit information about the source and content of a document. For example, if you
want to admit a note from the claimant’s doctor that confirms the claimant quit for health reasons, you
could do so by asking the following questions:

Did you see a doctor about your condition?

When did you see that doctor?

Did that doctor diagnose you?

Did your doctor provide you with a note?

(While showing claimant the note) Do you recognize this document?

What is it?
After the claimant identifies the note, you have properly laid the foundation and can then ask that the
Administrative Law Judge mark the exhibit and admit it into the record.
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Cross-Examination
It is difficult to plan cross-examination of the employer because you will not know exactly what the
employer’s position will be (although the employer may have revealed some of this information in the
Record of Claim Status Interview or in other correspondence with the EDD). You may not even know
who will provide testimony on behalf of the employer. Try to anticipate all of the employer’s possible
defenses and be prepared to question the employer to challenge those defenses.
Unlike direct examination, in cross-examination, avoid questions that are open-ended or invite an openended response. It is important to “pin down” the employer. Leading questions — those that call for a
“yes” or “no” answer — should be used whenever possible. For example, a good question might begin
with “Isn’t it true that…” Do not ask questions to which you do not know the answers because the
employer may well not give the answer you would like and say something that will damage your client.
Finally, do not ask questions that invite the employer to reiterate its own version of events.
Importantly, it is perfectly acceptable not to cross-examine a witness. There may be nothing gained
from it. Whether you choose to cross-examine the opposing party or not, you should pay special
attention to what the witness did not say. Oftentimes, the most important element of an employer’s
testimony is what is omitted. In such cases, rather than questioning the employer, it may be best to
make reference to the omissions in your closing statement. For example, “Your honor, the employer did
not provide any testimony challenging my client’s explanation of …”
Re-Direct
Limit re-direct questions to issues the employer raised during cross-examination of your witness. For
example, if the employer suggests to the claimant that the reasons for quitting are pretextual and the
true reasons she quit were an unrelated cause, re-direct questions should allow the claimant to openly
address the allegations the employer raised. Remember, avoid such questions on direct examination
because the employer might otherwise not “open the door” on that issue at all and the claimant’s
reasons for quitting may go unchallenged.
Closing Argument
The closing argument should be a concise summary of how the facts you have proved in the hearing
correspond to the law, including applicable case law, code provisions, and regulations. Administrative
Law Judges are often impatient at the end of a hearing, so it is essential that you show your respect for
their time (and knowledge), and not try to cover too much ground. With very few exceptions, a closing
statement should be no more than two to five minutes.
The closing argument can be prepared in outline form so that you can “check off the box” for each of
the relevant facts you proved at the hearing. Using an outline also ensures you will not read the closing
statement verbatim from a prepared script, which often is less persuasive. However, if you are more
comfortable preparing a completely drafted closing argument, it is certainly acceptable to do so. If you
draft the complete closing argument, it is useful to refer directly to testimony or documentary evidence
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by saying, for example, “as the supervisor Mr. Johnson admitted, he did not even want to fire my client
for this alleged offense.”
H. Preparing Claimant for the Hearing
Shortly before the hearing, you should meet with the claimant (and any witnesses, if possible) to
prepare for the hearing. Your two principal goals for this final pre-hearing meeting are 1) to make sure
the claimant knows what to expect at the hearing and 2) to practice direct and cross-examination
questions with the claimant and any available witnesses.
What to Expect. Claimants often have a lot of anxiety about confronting a former employer and
appearing in a quasi-judicial forum. It is typically reassuring and comforting for the claimant to have a
clear understanding of what to expect. Start with how the claimant will get to the hearing and what
time to arrive, and then walk her through the entire process. A clear understanding of what will happen
at the Office of Appeals on the day of her hearing will go a long way toward reducing her anxiety. (For
more details regarding hearing procedures, see “The Hearing” below.)
Examination Practice. This is the heart of the final pre-hearing meeting. You should remind the
claimant that you and/or the Administrative Law Judge (and, potentially, the former employer) will be
asking her questions at the hearing. Now is the time to practice.
When reviewing the direct examination questions, do not tell the client what the answers to the
questions “should be.” The claimant needs to tell the truth in her own words. If the client does not
understand the information a question is designed to elicit, you can review the information the client
has provided, verify it is correct, and suggest that the client simply supply that information in her own
words. Alternatively, think of a different question that is clearer to the claimant. Let the claimant know
that if she does not provide a relevant piece of information, you will ask additional follow-up questions
during the hearing to ensure that the record is complete and accurate. Another reason to avoid giving
the client the “right” answers is that if her testimony appears rehearsed or too polished, she may appear
coached and less credible. (Note: if an employer asks the claimant about her preparations with a
representative, you can object that the content of such communication is privileged. However, the
claimant should be prepared to testify that she was not “coached” about what to say.)
Practicing cross-examination will help prepare the client for contentious questioning from her employer
and ensure that the client will be able to undo or minimize any damage that could result from the
employer’s questioning, especially if there are any glaring problems with the case. For example, if the
claimant’s reasons for quitting are “borderline” good cause, pressing the client on those reasons that
are not so strong will prepare her to defend her actions and her decision to quit.
Here are some final reminders to provide the claimant regarding how to respond to the hearing
questions:

Directly answer the specific question that was asked. A claimant should pause before answering
and carefully consider the scope of the question and how to answer it before responding.
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
Ask the questioner for clarification before answering any questions that she finds confusing or
unclear. Not understanding the question may cause the claimant to give a contradictory or
inaccurate answer, and this, in turn, could harm her credibility.

Respond in a respectful and honest way. Many cases come down to a question of credibility. The
Administrative Law Judge will be evaluating the claimant’s credibility throughout the hearing, so the
manner of responding is almost as important as the content of the response. For example, a
claimant may be trying to establish that she did not get into an angry argument with a customer. If
the claimant displays anger or a short temper in the hearing, her credibility will be severely
compromised. The claimant should be respectful and polite at all times.

Avoid talking too much. A claimant should pay close attention to how much the Administrative Law
Judge wants her to explain. When in doubt, she should err on the side of saying too little; otherwise
she risks bringing up issues that are better left unsaid or frustrating the Administrative Law Judge
with irrelevant information. If the Administrative Law Judge needs more information from the
claimant, she will ask a follow-up question.

Do not get angry or confrontational with the employer. The claimant should focus on telling her
story and avoid getting upset over what the employer says, even if the employer lies. Getting angry,
accusing the employer of lying, or answering the employer’s questions in a sarcastic manner will
most likely hurt the claimant’s credibility. The Administrative Law Judge will not allow either party
to be abusive. If the claimant feels she is about to get emotional, she can ask for a short break.
I. The Hearing
The purpose of the appeal hearing is for an independent Administrative Law Judge to ascertain the facts
and legal merits of the case, and ultimately to affirm or reverse a determination by the EDD. The
Administrative Law Judge will review all the relevant facts and make a decision de novo, meaning she
gives no weight or deference to what the EDD previously decided. This hearing is especially important
because it is the parties’ only chance to create a record of the facts. This record will serve as the basis
for any and all future appeals.
Hearings are scheduled to last 45 minutes, and rarely go longer than an hour unless the issues are
complex or the case involves a large number of witnesses. On occasion, hearings will be continued to
another day if they cannot be completed within the time allotted.
Who May Attend
Parties. All parties may attend the hearing and present evidence. The party who is not appealing is not
required to attend the hearing, but may do so. The EDD is technically a party to the hearing, which gives
the Department the right to attend the hearing and defend or represent its decisions. It is exceedingly
uncommon for a representative of the EDD to participate in a hearing.
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Witnesses and Representatives. All the parties may bring witnesses and may have representatives who
can ask questions and present legal arguments on their behalf. Representatives need not be licensed
attorneys; anyone can serve as a representative.
The Public. Most hearings are open to the public,524 but rarely attended by anyone other than the
parties, witnesses, and representatives. As a courtesy, those who want to observe the hearing, or to
attend solely for the purpose of moral support, should ask the Administrative Law Judge’s permission.
Before the Hearing
You and the claimant should plan to arrive early to the hearing. Check in with the receptionist upon
your arrival. You should inform the receptionist that you are representing the claimant and explain that
you would like a copy of the decision mailed to your office.
The receptionist will likely offer you the opportunity to review the Appeal File. You should have
reviewed the Appeal File in advance, but it is a good idea to review it again quickly to ensure that no
new information was added. Be aware that there is only one official copy of the Appeal File and thus all
the parties will have to share this single file in advance of the hearing. (For more information, see
“Getting and Reviewing the Appeal File” above.)
If applicable, you should confirm with the receptionist that the claimant is expecting an interpreter. The
interpreter is often available before the hearing, if necessary, to help the claimant review the Appeal
File. If the interpreter does not show up, the hearing will have to be rescheduled. The CUIAB is required
to provide an interpreter.525
If the party who filed the appeal arrives late or does not show up, the Administrative Law Judge may
dismiss the case for non-appearance.526 If a claimant is running late, she should call the Office of
Appeals immediately. Usually the Administrative Law Judge will wait fifteen minutes after the
scheduled hearing time before dismissing a case, but she is not required to provide this buffer. Prior
hearings sometimes run late, so the hearing may not start on time.
When the Administrative Law Judge is ready and after all the parties have checked-in, the Administrative
Law Judge will enter the waiting room and escort the parties (and any witnesses) to a hearing room. At
any given Office of Appeals, there are typically several hearing rooms and several hearings taking place
simultaneously.
Opening the Hearing
The Administrative Law Judge conducts the hearing in a hearing room that is not much larger than, and
set up like, a small conference room. The Administrative Law Judge is in charge of the hearing, and
decides what evidence to admit, what testimony will be heard, who may attend, whether there will be
any departure from procedure, whether a party is talking too much, whether the testimony is relevant,
when the hearing will end, and who is telling the truth. In general, Administrative Law Judges are
helpful to the unsophisticated claimant, and will answer questions and assist claimants who get stuck or
confused. The claimant should not be fearful of or intimidated by the Administrative Law Judge, but the
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claimant and the representative should be respectful to the Administrative Law Judge and should be
careful not to interrupt her.
The Administrative Law Judge, who does not wear a robe, sits at the head of a conference table. The
claimant and her representative (and any witnesses) will normally sit on one side of the hearing table.
You should try to sit between the Administrative Law Judge and the claimant, so that the claimant can
face the Administrative Law Judge when responding to your questions. Any opposing parties and
witnesses will sit on the opposite side of the table.
The Administrative Law Judge typically begins a hearing by going through the following steps:

Turns on a recording device to make the audio record of the proceedings.

Provides an overview of hearing procedure, asks if anybody has any questions or concerns, and
briefly explains the issues in the case and the applicable law.527 For example, in a misconduct case,
the Administrative Law Judge usually reads the legal definition of misconduct.

Numbers the documents in the appeal file and, if there are no objections, admits them into
evidence.

Swears in the parties and witnesses.528 Witnesses are normally sequestered, which means the
Administrative Law Judge asks them to leave the room until it is time to testify.

Gets the names and “appearances” (e.g. “Representative for the claimant”) of any representatives.
This is a good time to give the Administrative Law Judge your business card.
The Case
The Administrative Law Judge usually does most of the questioning during the hearing (particularly if the
claimant and employer are not represented) and will decide, usually at the beginning of the hearing,
which party to question first, explaining the order that testimony and evidence will be presented.529
Opening statements are rare, but either side may request to give one in a complex case.
Claimant’s case. The Administrative Law Judge will typically conduct the examination of the claimant
and the claimant’s witnesses, if any. In a voluntary quit case, the claimant is normally questioned first
and asked to explain her reasons for quitting. In a discharge case, the Administrative Law Judge will
normally question the claimant after the employer and ask her to respond to the employer’s charges of
misconduct. The claimant can present any relevant documents that she has to the Administrative Law
Judge. (For more information regarding the use of documents, see below.) After the Administrative
Law Judge finishes questioning the claimant, the Administrative Law Judge will give the representative
an opportunity to do any additional examination. (Note: In some cases, the Administrative Law Judge
will turn over the entire examination to the representative, which is why it’s important to be prepared
to do a full examination). This is the opportunity to elicit any important facts and testimony from the
claimant that did not come out during the Administrative Law Judge’s examination. One strategy is to
literally check off your questions (and expected answers) as the Administrative Law Judge asks questions
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(and elicits expected answers), and then use your remaining, unchecked questions as a guide to your
examination of the claimant. You may have only a few clarifying questions for the claimant or you may
have several unexplored issues to cover.
At the conclusion of the direct examination, the employer (or employer’s representative) will have the
opportunity to cross-examine the claimant, and you will get an opportunity to re-direct (which often
isn’t necessary). This process is repeated for any witnesses.
Employer’s case. The Administrative Law Judge will ask questions of the employer and the employer’s
witnesses, if any. The employer normally presents evidence before the claimant in a discharge case and
after the claimant in a voluntary quit case. The employer also may give relevant documents to the
Administrative Law Judge.
You will have the opportunity to cross-examine the employer and its witnesses to undermine their story
and impeach their credibility. Although you may have outlined some potential cross-examination
questions, you will almost always have to think on your feet and modify or abandon your plan during the
hearing. Resist the urge to ask too many questions. For example, if you have noted an important
inconsistency in the employer’s story, do not raise it on cross-examination and give the employer an
opportunity to explain it and rehabilitate the testimony. Instead, save it and point it out when you
deliver your closing argument.
If the claimant is not represented and has questions for the employer, she should avoid asking questions
in a confrontational or angry way. Rather than arguing with the employer, the claimant should ask the
Administrative Law Judge if she can later make a closing statement and present her arguments then.
The claimant does not have to ask any questions of the employer and should be advised not to if her
questions will only invite the employer to re-emphasize its own side of the story.
Presenting Evidence: Witnesses, Documents & Objections
Most formal rules of evidence do not apply at the hearing. Instead, Administrative Law Judges conduct
hearings simply to ascertain the substantial rights of the parties530 and to admit relevant evidence if it is
“the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious
affairs.”531 An Administrative Law Judge may exclude relevant evidence only if its probative value is
substantially outweighed by the probability that its admission will take too much time, or lead to
prejudice or injustice.532
Among other things, this means that claimants and employers normally can admit copies of documents,
rather than originals and usually can rely on hearsay testimony. (Hearsay is discussed below).
Witnesses. Bringing a witness to testify at the hearing is generally better than offering a letter or an
affidavit. Testimony given at the hearing, under oath and subject to the other party’s crossexamination, is entitled to more weight than statements in affidavit form, whether sworn or not.533
However, an Administrative Law Judge does not have to believe an unreliable or contradictory witness
over a credible written affidavit. 534 Therefore, a claimant should try to present as much of her
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testimony as possible through witnesses, but should not worry if she has to submit a letter instead, such
as one from a doctor too busy to come to the hearing, especially if the fact is not likely to be disputed by
the employer at the hearing.
Witnesses may be subpoenaed to attend the hearing. (For more information regarding subpoenas, see
“Securing Documents, Witnesses, and Statements” above.)
Documents. You or the claimant can submit relevant documents, such as performance reviews or
letters to or from the employer. Usually, the claimant does not need to submit the originals, but should
bring them to the hearing if she has them. In addition, you or the claimant should take at least three
copies to the hearing, one for the claimant’s reference, one for the Administrative Law Judge, and one
for the employer. (The employer is entitled to copies of all documents that the claimant submits.) The
documents may be admitted in one of two ways:

You or the claimant can ask the receptionist to add the documents to the appeal file in the waiting
room before the hearing. If the employer is in the waiting room, you should give the employer its
copies at this time. The Administrative Law Judge will normally number and admit the documents
as part of the appeal file at the beginning of the hearing.

Alternatively, you can introduce the documents into evidence during the hearing by questioning the
claimant about what the document is and where it came from, and then asking that the document
be admitted into evidence. If the claimant does not have an advocate, she can give the documents
to the Administrative Law Judge during the hearing and the Administrative Law Judge will ask the
claimant the necessary questions, if any, to admit the documents into evidence. The process of
asking questions to identify the source and nature of the document is known as “laying the
foundation.” (For more information about laying the foundation for documents, see “Drafting
Examination Questions and the Closing Argument” above.)
Objections. The Administrative Law Judge will not necessarily ask if either side has any objections to the
testimony or proffered evidence, so you will likely have to interject with your objections. Objections do
not need to be presented in a particular form, but you should identify the objectionable evidence or
questioning, and state a reason why it is objectionable. The following objections are often used:

Irrelevant: If the employer wants to introduce evidence or begins to testify to information that is
detrimental to the claimant’s interest and irrelevant to the issues in the case (e.g. work performance
in a “voluntary quit” case), you may object: “Your honor, I object to the employer’s
testimony/evidence because it is irrelevant.”

Hearsay: Hearsay is any out-of-court statement that is offered for its own truth.535 For example, a
supervisor’s testimony that a co-worker said she saw the claimant stealing from the cash register is
hearsay. Hearsay, while admissible, is accorded less weight than the testimony of a witness
describing what she personally saw or did. For this reason, you should object to hearsay (or at least
point out to the Administrative Law Judge that the evidence is hearsay) if the information presented
is particularly damaging.
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
Misleading: A question is misleading if it cannot be answered without making an unintended
admission. For example, if the employer were to ask “Do you still get drunk?” the question is
misleading because if the employee answers “no,” she may be inadvertently admitting that she did
so in the past. (This question is also objectionable because it assumes facts not in evidence and is
also probably irrelevant because it concerns conduct after the employee no longer worked for the
employer.)

Compound: A compound question is a single question that asks the respondent to give more than
one answer. For example, a compound question to the claimant might be “Did you fail to report to
work on June 8 and not call the employer?”

Argumentative: Argumentative questions reveal the examiner’s view of facts. For example, if an
employer were to ask, “Why did you persist in leaving voicemail messages for your co-worker after
you were warned to stay away from her?” this question is argumentative. (It also assumes facts not
in evidence if the employer has not presented evidence that the employee was previously warned).

Assumes facts not in evidence: If the employer or its representative asks a question that contains
information not in the record or not previously testified to, you could object, “Your honor, I object
to the employer’s question of the claimant because it assumes facts not in evidence. The
employer’s representative is providing information rather than asking a question.”

Speculation: Questions call for speculation if the answer that is called for is nothing more than
hypothetical. For example, an employer’s asking “Do you think my company would fire someone
who made one minor mistake?” is objectionable based on speculation.
Some Administrative Law Judges do not like the testimony to be interrupted by objections, particularly if
they are repetitive or unwarranted. You may need to read the mood of the Administrative Law Judge
and adjust the nature and frequency of any objections, accordingly.
Concluding the Hearing
The Administrative Law Judge normally will allow a few minutes at the end of the hearing for the parties
to present closing statements, if they choose to do so.536 The statement should be no more than a few
minutes, and should briefly connect the testimony to the appropriate legal standard. For example,
summarize the testimony (e.g. “My client’s undisputed testimony clearly established X, Y, and Z”) and
then show how those facts connect to a legal standard (e.g. “There is no dispute that my client was
terminated for poor work performance, and legal sources X, Y, and Z establish that poor work
performance is not misconduct”).
The Administrative Law Judge will be familiar with the law applicable to the case, so a closing statement
is not absolutely necessary. If the Administrative Law Judge indicates that there is no need for the
claimant to present a closing argument, the claimant (or advocate) should insist only if she believes she
will present some highly pertinent information or a novel legal theory.
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Following any closing statements, the Administrative Law Judge will end the hearing by asking the
parties if either side has any questions. Following any final questions, the Administrative Law Judge will
conclude the hearing, advise the parties when they should expect a decision, stop the recording, and
usher the parties out of the hearing room.
J. The Decision
The claimant usually receives the Administrative Law Judge’s written decision in the mail between two
days and three weeks after the hearing.537 Recently, some claimants are reporting that decisions are not
arriving for several months after the hearing. Nonetheless, if more than a month has passed since the
hearing, the claimant may want to call the Office of Appeals and get an update.
The Administrative Law Judge’s written decision will include a statement of the facts that she relied on
in making her decision and the reasons for her decision based on the law.538 If the claimant filed her
appeal late and the Administrative Law Judge makes a “threshold” decision that the claimant did not
have good cause for filing late, the Administrative Law Judge usually does not decide the merits of the
appeal, even if she accepted evidence on the merits during the hearing.
If the claimant disagrees with the decision, she can appeal to the CUIAB as described below.
K. Board Appeals
A claimant who disagrees with the Administrative Law Judge’s decision has 20 calendar days from the
date of mailing of the decision (indicated on the first page of the decision) to appeal the decision to the
Appeals Board (also referred to as just “the Board”) in Sacramento.539 (For more information regarding
the composition of the Appeals Board, see “History and Framework of the Unemployment Insurance
System” in Chapter 1.) This is referred to as a second-stage appeal. A claimant who files late will have
her appeal dismissed, unless she can show good cause for missing the deadline.
Two of seven members of the Board will review the Administrative Law Judge’s decision and the record
of the appeal hearing. If they disagree, a third board member will break the tie.540 (Despite use of a 3member panel, this Guide continues to refer to the decision-maker as “the Board” or “the Appeals
Board” throughout this section.) The parties may request the record of the first-stage appeal hearing
and present written argument as described below.
The Board will decide the appeal based on the record, the testimony, and other evidence presented at
the hearing before the Administrative Law Judge. The Board will overturn the Administrative Law
Judge’s decision only if it is arbitrary or against the weight of the evidence.541 Because of this standard,
most decisions are affirmed on appeal unless there is an obvious legal error or wholly arbitrary finding of
fact that is not supported by any evidence in the record. The Appeals Board will rarely, if ever, overturn
an Administrative Law Judge’s credibility determinations, so this second-stage appeal is very difficult to
win if the claimant’s argument is that the Administrative Law Judge should have believed her story
rather than employer’s story.
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The appealing party can notify the Board that she wishes to withdraw the appeal for any reason at any
time before the Board’s decision is issued.542 A party who withdraws an appeal can have it reinstated
only if she shows good cause for the reinstatement and makes her request within 20 days after the
dismissal order (or shows good cause for missing this deadline).543
Step One: File the Appeal
An appeal must be filed in writing,544 but need not include a lengthy statement of the reasons a claimant
disagrees with the Administrative Law Judge’s decision.545 The claimant should write a letter stating that
she disagrees with the Administrative Law Judge’s decision and wants to appeal. She should include her
name, address, phone number, social security number, and the case number. She should sign and date
the letter, and mail it to the Office of Appeals where her case was heard.
Step Two: Acknowledgment of Appeal
If the claimant is the appealing party, the Office of Appeals will send the claimant a letter acknowledging
receipt of the appeal, providing the Appeals Board case number (which should be used in all future
correspondence), and advising the claimant of her procedural options. The opposing party will receive a
similar notice, and a copy of the appeal.
Claimants will receive a similar letter if their employer files an appeal with the Board. In such cases, the
acknowledgement of appeal letter is the claimant’s first notice of the appeal.
Step Three: Requesting a Copy of the Record
Within 12 calendar days after the mailing of the appeal acknowledgment letter, the parties may request
a copy of record of the hearing, which will include a written transcript and/or a copy of the tape from
the hearing and the documents in the record. A claimant will not be charged for a copy of the record.546
Along with the copy of the record, the parties receive a new deadline for submitting a written argument,
which will be 12 calendar days after the mailing of the record. 547
Step Four: Additional Evidence
The Board is usually limited to the facts presented as shown in the official transcript of the case and the
documents offered in evidence. The Board may direct the taking of new or additional evidence on its
own motion or on request of a party. The Board requires a request by a party to be in writing, show the
materiality of the new or additional evidence to be offered, and the reasons why it was not offered at
the hearing before the Administrative Law Judge. A copy of the request must be mailed to the other
parties in the case and a proof of service must be delivered to the Appeals Board.
If additional documentary evidence is offered, the Board may accept it without further hearing and offer
the opposing party an opportunity to respond to the evidence. 548
Step Five: Written Argument
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If the claimant does not request the record, she has 12 calendar days after the mailing of the appeal
acknowledgment letter to submit her written argument.549 If the claimant does request the record, she
has 12 calendar days after the mailing of the record to submit her written argument.550 In light of the
quick deadline, you may want to begin drafting (or at least planning) the written argument before
receiving a copy of the record. A written argument is not required; the Board will review the record of
the case and issue a decision regardless of the submission of any written argument.
The written argument is essentially a brief. It outlines the facts of the case, as those facts were
presented to the Administrative Law Judge, and presents any legal arguments the claimant or advocate
believes are viable. No precise legal form is required for the written argument, but it should address
only evidence already in the record and the applicable law. The format of a written argument will
depend on several factors, including whether you are requesting that the Board overturn or affirm an
Administrative Law Judge decision and whether your principle arguments are factual or legal. Most
written arguments should be structured as follows:
1. Introduction. The introduction can be very brief, stating the basic information about the claim (name,
social security number of the claimant and the Appeals Board case number) and informing the CUIAB
that you are representing the claimant in her request to either affirm or overturn the Administrative Law
Judge’s decision.
2. Statement of Facts. The statement of facts should come entirely from the record of the hearing. To
the extent possible, you should cite to the page or point in the record when a particular fact was either
testified to, or demonstrated by, documentary evidence (this task is far easier if you are able to review a
transcript of the hearing rather than a tape recording). Present the facts in the light that is most
favorable to your client, but do not mischaracterize the record.
3. Argument(s). The argument section is the heart of your brief. Divide it into sections, each of which
represents a different argument. For example, you may have one section arguing that the
Administrative Law Judge incorrectly applied the burden of proof, another section arguing that a
particular element of misconduct was not proven by evidence in the record, and a third section arguing
that the judge gave improper weight to a particular piece of evidence because it was hearsay testimony.
Structure your arguments by placing your strongest legal arguments first, and include supporting factual
assertions (from the record) and legal authority (from statutes, regulations, and case law).
4. Conclusion. In some cases, the conclusion to a written argument briefly reiterates the arguments
presented above. In other cases, the conclusion will merely read: “For all the reasons cited above, the
decision of the Administrative Law Judge should be overturned/affirmed.”
A copy of the written argument must be mailed to the other parties in the case and a proof of service
must be delivered to the Appeals Board.
Step Six: The Board’s Decision
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The Board will issue a written decision, stating the facts and the reasons for its decision, and explaining
the claimant’s appeal rights.551 In most cases, the decision will be mailed within 60 days of the
submission of the appeal.552 If the claimant was found eligible for benefits by both the EDD and the
Administrative Law Judge, the claimant will not have to repay any benefits she was overpaid if the Board
overturns the decision. If the Board reversed the Administrative Law Judge’s decision and found the
claimant eligible for benefits, she will receive back benefits for any prior weeks when she was otherwise
eligible.
Upon receipt of the decision by the Board, contact the claimant as soon as possible to review and
explain the result, and ask if she has any further questions. You should also explain each party’s appeal
rights, letting your client know that the non-prevailing party may file an appeal in the form of a writ of
mandate in superior court. Writs are discussed in the next section.
L. Writs
Board decisions may be appealed by Writ of Mandate to the superior court of appropriate
venue. The claimant must file the Writ within six months from the date of the mailing of the CUIAB
decision.554 In most cases, claimants can go to court only after exhausting the administrative process,
including appealing to an Administrative Law Judge and then to the Board.555
553
The superior court will review the administrative record to determine whether the claimant had
a fair hearing and whether there was any prejudicial abuse of discretion. 556 The court will consider new
evidence on a limited basis, such as if the evidence could not have been produced through the exercise
of reasonable diligence or was improperly excluded during the administrative process.557
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M. Advocate Checklist: Key Steps in Preparing for an Appeal Hearing
This Checklist presumes that the claimant has already submitted an appeal and received a Notice of
Hearing. It is designed as a one-page, high-level reminder of the key steps in the first-stage appeals
process. Review the relevant sections of this chapter for more details.
STEP 1: Conduct Detailed Client Intake Interview
o
o
o
o
o
o
Remind client about ongoing duties: job search, Continued Claim Forms, etc.
Review client’s employment documents and agency notices (from the EDD and CUIAB).
Get all the facts! Make sure you fully understand the chronology of key events.
Arrange for client to get the Appeal File, and get a copy to you ASAP.
Decide about using and securing any documents, witnesses, and statements.
Sign any retainer agreement and/or authorization form(s).
STEP 2: Advocate’s Preparation for the Hearing
o
o
o
o
o
Review the Appeal File and follow up with claimant about any inconsistencies.
Take steps (as necessary) to secure documents, witnesses, and statements.
Research the applicable law and develop “theory of the case.”
Draft list of examination questions for claimant and any witnesses.
Draft outline of closing statement.
STEP 3: Final Preparation Session with Client
o
o
o
Provide client with detailed chronology of what to expect on the day of the hearing, including the
hearing procedures.
Practice direct and cross-examination of client, and provide suggestions and feedback.
STEP 4: The Hearing
o
o
o
Arrive early in order to check in with the receptionist, review the Appeal File for any new
information, and (if necessary) connect with the interpreter.
Remind the client of the importance of: staying calm and respectful, asking for clarification if she
doesn’t understand a question, and staying narrowly focused on the key issues.
Ensure that your client provided all the important testimony. This is your principal responsibility in
the hearing.
STEP 5: After the Hearing
o
o
o
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Confirm client’s contact information, and remind client to notify you of any future changes.
Upon receipt of the Administrative Law Judge’s written decision: ensure client understands the
decision, review deadlines for next appeal (as necessary), and clarify your role in any future
proceedings (as necessary).
CHAPTER 7. SPECIAL PROGRAMS
California’s Unemployment Insurance (UI) system includes a variety of “special programs” that fall
outside the standard claim for regular benefits. These include Benefit Extensions, the Work Sharing
Program, Partial Claims for Benefits, the California Training Benefits Program, Disaster Unemployment
Insurance, and Trade Adjustment Assistance. This chapter provides a high-level overview of each
program; a more comprehensive review of these programs is beyond the scope of this Guide.
A. Benefit Extensions
Following the exhaustion of normal UI benefits, a California claimant may be eligible for additional
benefits through two different extension programs: the Emergency Unemployment Compensation (EUC)
program and the Federal Extended Duration (Fed-ED) program. California has elected to pay EUC
benefits to claimants prior to Fed-ED benefits.558 Claimants cannot collect both benefits from both
extension programs simultaneously. Both programs are discussed below.
1. Emergency Unemployment Compensation Program
On June 30, 2008, President Obama signed the Supplemental Appropriations Act, 2008 (Public Law 110252), which provided for the “Emergency Unemployment Compensation” (EUC) program. This
temporary extension program has been amended four times since its original passage.559
Benefits
The EUC program, funded 100% by the federal government, provides up to four tiers of benefits for
claimants who have exhausted their regular UI benefits. Tiers one and two provide up to 20 and 14
weeks of benefits, respectively, for claimants in all states.560 Tiers three and four provide up to 13 and 6
weeks of benefits, respectively, for claimants in states that meet threshold unemployment rates.561
The Weekly Benefit Amount of an EUC claim is equal to the Weekly Benefit Amount of the underlying
regular UI claim.562
State Eligibility Requirements
There are no state eligibility requirements for California claimants to be eligible for EUC tiers one and
two. Eligibility for tiers three and four require that California “trigger” on to the respective tiers.
California triggers onto a tier three period:

When the Insured Unemployment Rate (IUR) in California (averaged over the course of 13 weeks)
equals or exceeds 4.0 percent; or

When the average Total Unemployment Rate (TUR) for the most recent three months equals or
exceeds 6.0 percent.563
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California triggers onto a tier four period:

When the Insured Unemployment Rate (IUR) in California (averaged over the course of 13 weeks)
equals or exceeds 6.0 percent; or

When the average Total Unemployment Rate (TUR) for the most recent three months equals or
exceeds 8.5 percent.564
As of January 2010, California has met these thresholds and thus has been “triggered” on to EUC tier
three and four periods continuously since November 8, 2009, the effective date of those tiers.
Therefore, assuming they meet the other eligibility requirements, California claimants are currently
eligible for up to 53 weeks of EUC benefits.
To determine the current status of California’s EUC triggers, see the U.S. Department of Labor’s weekly
trigger reports, available online at
http://www.workforcesecurity.doleta.gov/unemploy/claims_arch.asp.
Claimant Eligibility Requirements
The requirements to receive EUC benefits are stricter than the requirements to receive normal UI
benefits. In addition to meeting the usual eligibility criteria, an EUC claimant must also:

Have exhausted all rights to regular UI benefits; and

Have had 20 weeks of full-time insured employment or the equivalent in insured wages in the
applicable, underlying Base Period.565 (California interprets this requirement to mean Base Period
earnings of more than 40 times the Weekly Benefit Amount or more than 1.5 times the highestgrossing quarter in the Base Period.566)
Dates
The EUC program is temporary. The last effective date an individual can file an initial EUC extension (tier
one) is February 21, 2010.567 The last effective date an individual can augment to an additional EUC tier
(tier two, three, or four) is February 28, 2010 (i.e. after February 28, 2010, claimants are not entitled to
move from one tier of benefits to the next tier of benefits).568 Once a claimant has qualified for a
particular tier of benefits, the claimant is eligible to be paid those benefits through the week ending
August 6, 2010.569
Process
The EDD will automatically file EUC claims on behalf of claimants; claimants do not need to contact the
EDD to initiate the process. Once eligible, claimants will certify their eligibility via the submission of
Continued Claim Forms, similar to the certification process for regular benefits.
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2. Federal Extended Duration Program
On August 10, 1970, the federal government enacted the Federal-State Extended Unemployment
Compensation Act of 1970 (Public Law 91-373). (The federal government refers to this program as
“Extended Benefits” or “EB,” but this Guide will follow the EDD’s practice of referring to it as the
“Federal Extended Duration” program or “Fed-ED.”) The program has been amended several times, but
remains a permanent extension program (as distinct from the temporary Emergency Unemployment
Compensation program, discussed above).570
Benefits
The Fed-ED program, funded 50% by the state government and 50% by the federal government,
provides for claimants who have exhausted their regular UI and EUC benefits to receive up to an
additional 13 or 20 weeks of benefits when a state “triggers” on to a Fed-ED period.
The Weekly Benefit Amount of a Fed-ED extension claim is equal to the Weekly Benefit Amount of the
underlying regular UI claim.
State Eligibility Requirements
Traditionally, California law has called for the state to “trigger” on to a Fed-ED period only in one of the
following two circumstances:

When the Insured Unemployment Rate (IUR) in California (averaged over the course of 13-weeks) is
five percent or greater and the IUR exceeds 120 percent of the average of such rates for the
corresponding 13 week periods in the preceding two calendar years; or

When the IUR in California (averaged over the course of 13 weeks) is six percent or greater.571
Even in times of high unemployment, California’s IUR rarely (if ever) has exceeded five percent, thus
California rarely (if ever) has triggered on to a Fed-ED period under these requirements. Without
triggering on to a Fed-ED period, California claimants are not eligible to receive Fed-ED extended
benefits.
On February 17, 2009, President Obama enacted the American Recovery and Reinvestment Act of 2009
(ARRA), Public Law 111-5. One provision of this bill, since amended, requires the federal government to
temporarily pay for 100% of the cost of Fed-ED extended benefits through February 28, 2010 (in lieu of
the traditional 50-50 federal-state cost sharing).572
On March 27, 2009, in response to the temporary 100% federal funding, California Governor
Schwarzenegger enacted ABx3 23, which (consistent with an option provided by the federal law)
provides that California will “trigger” on to a Fed-ED period under the following condition:

When the average Total Unemployment Rate (TUR) for the most recent three months exceeds 6.5
percent; and
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
When the average TUR equals or exceeds 110 percent of such average rate for either or both of the
corresponding periods ending in the two preceding calendar years.573
Furthermore, ABx3 23 calls for 20 weeks of extended benefits (rather than 13) when California “triggers”
on to a “High Unemployment Period” (HUP). A HUP occurs under the following condition:

When the average Total Unemployment Rate (TUR) for the most recent three months exceeds 8.0
percent; and

When the average TUR equals or exceeds 110 percent of such average rate for either or both of the
corresponding periods ending in the two preceding calendar years.574
Following the addition of these optional, temporary triggers, California has been “triggered” on to a FedED period continuously since February 22, 2009. Therefore, assuming they meet the other eligibility
requirements, California claimants are currently eligible for up to 20 weeks of Fed-ED extended benefits.
To determine the current status of California’s Fed-ED triggers, see the U.S. Department of Labor’s
weekly trigger reports, available online at
http://www.workforcesecurity.doleta.gov/unemploy/claims_arch.asp. (This federal government
website refers to “Extended Benefits” or “EB” triggers.”)
Claimant Eligibility Requirements
The requirements to receive Fed-ED extended benefits are stricter than the requirements to receive
normal UI benefits. In addition to meeting the usual eligibility criteria, a Fed-ED claimant must also:

Have exhausted all rights to regular UI benefits and EUC benefits (discussed above);

Have had 20 weeks of full-time insured employment or the equivalent in insured wages in the
applicable, underlying Base Period.575 (California interprets this requirement to mean Base Period
earnings of more than 40 times the Weekly Benefit Amount or more than 1.5 times the highestgrossing quarter in the Base Period.576);

Document at least three work search contacts on the back of each Continued Claim Form;577 and

Accept offers of suitable work that may not be in the claimant’s normal occupation. (The term
“suitable work” is construed much more broadly in the Fed-ED program than it is with respect to
regular UI claims.578)
Dates
The Fed-ED program does not expire; however, California’s newly enacted optional trigger provisions
(discussed above) are temporary, and are currently set to expire with the end of the 100% federal
funding of the program on February 28, 2010. The expiration of the optional triggers may mean
California will trigger off and no longer be in a Fed-ED period, and thus no California claimants will be
entitled to Fed-ED benefits.
98
Process
The EDD will automatically file Fed-ED claims on behalf of claimants; claimants do not need to contact
the EDD to initiate the process. Once eligible, claimants will certify their eligibility via the submission of
Continued Claim Forms, similar to the certification process for regular benefits.
B. Work Sharing Claims
California’s Work Sharing program (also referred to as a “Short-Time Compensation” program) was the
first program of its kind in the nation. It was established by the California State Legislature in 1978.579
The objective of the Work Sharing program is to help employers and employees avoid some of the
burdens that accompany a layoff situation. An employee receives Work Sharing UI benefits when her
wages and hours have been reduced in lieu of a lay off. Employers are spared the expense of recruiting,
hiring, and training new employees. If employees are retained during a temporary slowdown,
employers can quickly gear up when business conditions improve.
Eligibility
Any employer who has a reduction in production, services, or other conditions that cause the employer
to seek an alternative to layoffs may participate in the Work Sharing program. Employer participation is
voluntary.580 Two of the specific requirements are:

A minimum of two employees, comprising at least 10 percent of the employer’s regular workforce
or a unit of the workforce, must be affected by a reduction in wages and hours worked.

The reduction in wages and hours worked also must be at least 10 percent.581
Benefits
Employees participating in the Work Sharing program, if otherwise eligible, will receive the percentage
of their weekly unemployment insurance benefit amount that equals the percentage of the reduction in
normal hours and wages for that week due to Work Sharing. If the percentage of wage reduction differs
from the percentage of hour reduction, the amount payable is based on the lesser percentage. Any
additional wages earned during the week in the employment of an employer(s) other than the Work
Sharing employer will be deducted dollar for dollar from the Work Sharing benefits.
For example, an employee normally works a five-day workweek and is paid $500. If this employee’s
workweek is reduced to four days, the employee’s weekly wages would be $400. This is a 20 percent
reduction in wages and hours. The Work Sharing benefits for this employee are 20 percent of the
Unemployment Insurance benefits the employee would receive if the employee were totally
unemployed. If the employee’s weekly Unemployment Insurance benefit amount is $300, the employee
would qualify for $60 in Work Sharing benefits. This results in a reduction in gross wages of only $40 for
that week ($400 + $60 = $460).
The Process
99
To participate in the Work Sharing program, an employer must submit a Work Sharing Plan Application
(Form DE 8686) to the EDD. A copy of the application is available online at
http://www.edd.ca.gov/pdf_pub_ctr/de8686.pdf. If a collective bargaining agreement covering the
affected work unit is in effect, the Work Sharing Plan Application must be signed by each appropriate
bargaining agent.
Following review and approval of an application, the EDD sends the employer a letter of approval, one
mail claim packet for each participating employee, and a ten-week supply of weekly certification forms
for each employee. Pending re-authorization, a plan shall expire six months after its effective date.582
The EDD may terminate a Work Sharing plan for good cause if the plan is not being carried out according
to its terms and intent.583
During the weeks of reduced hours and wages, the employer issues the certification forms to the
participating employees, and the employees complete the forms (thus certifying their eligibility) and
submit them to the EDD. An employee first submits a “Work Sharing Initial Claim and Payment
Certification” (Form DE 4511WS) and then, for each successive week, submits a “Work Sharing
Certification” (Form DE 4581WS).
C. Partial Claims
Partial claims are similar to claims under the Work Sharing program with two major exceptions. First,
employers are required to certify partial claims whereas employer participation in the Work Sharing
program is optional. Second, partial claims are only available to a worker when her gross earnings are
no more than 1.33 times her Weekly Benefit Amount (whereas the Work Sharing program is available to
an employee regardless of her salary).
Eligibility
A person is eligible for a partial claim if during a week she meets all of the following conditions:

She was employed by a regular employer.

She worked less than her normal customary full-time hours for her regular employer because of a
lack of full-time work.

She was continuously attached to her regular employer (e.g. there was not a severance of the
employer-employee relationship).584

Her gross earnings, after deducting the first $25 or 25 percent of the total earnings (whichever is
greater), are less than her weekly Unemployment Insurance benefit amount.
A person is ineligible for a partial claim if she:

100
Is receiving benefits under the Work Sharing program.

Has been laid off for a period in excess of two consecutive weeks or for two consecutive weeks
during which she performed no services for the regular employer.585 (In such a case, she would be
eligible to file a regular claim for benefits.)
The Process
The EDD provides employers with a “Notice of Reduced Earnings” (Form DE 2063). A sample of this
notice is available online at http://www.edd.ca.gov/pdf_pub_ctr/de2063.pdf. The employer completes
this form to certify that the employee is expected to return to work. The employer “shall, not later than
five days after the termination of any payroll week in which the employer has had in its employ a
partially unemployed individual” give the completed form to the employee.586
The employee then completes the Notice of Reduced Earnings and submits it to the EDD to file a partial
UI claim. “Completion Instructions” (Form DE4209) are available online at
http://www.edd.ca.gov/pdf_pub_ctr/de4209.pdf. A claimant may file a first or subsequent partial claim
for partial unemployment benefits within 28 days after she was furnished with the Notice of Reduced
Earnings.587 The 28-day period may be extended for good cause.588 However, a first or subsequent
partial claim shall not be valid if it is filed more than 13 weeks after the end of the Benefit Year (actual or
potential) during which the week of partial unemployment occurred.589
Employees who file for partial benefits are not required to look for work because they remain employed.
D. California Training Benefits Program
The California Training Benefits (CTB) program allows an eligible claimant who lacks competitive job
skills to receive UI benefits while attending a training or retraining program approved by the EDD.
Furthermore, with a Training Extension (TE), the claimant can receive these benefits for up to 52 weeks.
Under the CTB program, the traditional role of UI changes from proving partial wage replacement while
an individual looks for work to one of assisting an individual in training or retraining in an effort to return
the individual to full employment. A claimant approved to participate in the CTB program does not have
to look for work, be available for work, or accept suitable work.590
Eligibility Requirements
Enrollment in the CTB program requires an approved job-training program and the timely filing of a
Training Extension (TE) claim.
Approved Job Training Program
A claimant is automatically approved for CTB if she is otherwise eligible for unemployment benefits and
is enrolled in training that is authorized by the federal Workforce Investment Act,591 the federal Trade
Act of 1974,592 the state-funded Employment Training Panel,593 or she is a participant in the California
Work Opportunity and Responsibility to Kids (CalWORKs) program.594
101
Otherwise, a claimant who is not enrolled in one of the specified programs listed above, can also qualify
for the CTB program if all of the following requirements are met:595

She is unemployed for four or more consecutive weeks or unlikely to return to her most recent
workplace because of a closure, layoffs, or technological advances, or because a disability prevents
her from using her existing skills.

Reasonable employment opportunities for which she is fitted by training and experience do not exist
or are substantially diminished in her geographic area.596

The training that she wants to attend relates to an occupation or skill for which there are reasonable
employment opportunities (i.e. there is not a surplus of workers with those skills).

The program is full-time and can be completed within one year.

The program is primarily intended to provide skills that will allow the claimant to immediately get a
job and not primarily intended to meet the requirements of a degree from a community college,
college, or university.

The claimant can reasonably be expected to complete the training.
The two requirements that are most difficult to meet are 1) showing a lack of opportunities for current
skills, and 2) showing there are reasonable employment opportunities (high demand) in the field the
claimant wishes to enter.
Timely Filing a Training Extension Claim
In order to qualify for a Training Extension – the additional 26 weeks of training benefits, which are in
addition to 26 weeks of regular benefits – a claimant must make an inquiry to the EDD about the CTB
program before receiving her 16th week of unemployment benefits.597 A claimant’s waiting-period
week and any weeks in which she does not actually collect benefits (e.g. because she is working) do not
count toward the 16-week time limit.598 A claimant who does not file on time is ineligible for the
training benefits, even if she had a good reason for missing the deadline.599 One exception to this rule is
that a claimant who missed the deadline because she did not receive notification might be able to
qualify for benefits (because the EDD failed to meet its duty to notify the claimant about the training
benefits).600
Continuing Eligibility Requirements
A claimant who is receiving training benefits does not have to meet the following eligibility
requirements that govern regular UI claims: available for work, actively seeking work, and not refusing
suitable job offers without good cause.601 However, a claimant must be physically and mentally able to
work.602 In addition, she must provide written verification of attendance and satisfactory progress with
each Continued Claim Form.603 She will not receive benefits for any week where she fails to provide
such verification.604
102
Training Benefits
A claimant who qualifies for training benefits can receive up to 52 weeks of UI benefits, less any benefits
paid on her regular unemployment claim and any federal extension benefits. 605 For example, a claimant
who received six weeks of regular unemployment benefits and then applied for the training benefits
could get 46 weeks of training benefits. Benefits are payable until the training is completed or the
maximum amount of benefits is paid.
E. Disaster Unemployment Assistance
Disaster Unemployment Assistance (DUA) is a federal program that provides financial assistance and
employment services to jobless workers and the self-employed when they are unemployed as a direct
result of a major natural disaster. A major disaster means any hurricane, tornado, storm, flood, high
water, wind-driven water or tidal wave, earthquake, drought, fire or other catastrophe declared by the
President to warrant government assistance to communities and individuals. The DUA program is
administered by the U.S. Department of Labor and State Employment Security Agencies under the
Disaster Relief and Emergency Assistance Act of 1974, as amended by the Robert T. Stafford Disaster
Relief and Emergency Act of 1988.
Eligibility
An individual shall be eligible to receive a payment of DUA with respect to a week of unemployment if
she meets all of the following eligibility requirements:606

That week begins during a Disaster Assistance Period;

The applicable State for the individual has entered into an Agreement that is in effect with respect
to that week;

The individual is an unemployed worker or an unemployed self-employed individual;

The individual's unemployment with respect to that week is caused by a major disaster;607

The individual has filed a timely initial application for DUA and, as appropriate, a timely application
for a payment of DUA with respect to that week;

That week is a week of unemployment for the individual;

The individual is able to work and available for work within the meaning of the applicable State law;
provided, that an individual shall be deemed to meet this requirement if any injury caused by the
major disaster is the reason for inability to work or engage in self-employment; or, in the case of an
unemployed self-employed individual, the individual performs service or activities that are solely for
the purpose of enabling the individual to resume self-employment;
103

The individual has not refused a bona fide offer of employment in a suitable position, or refused
without good cause to resume or commence suitable self-employment, if the employment or selfemployment, could have been undertaken in that week or in any prior week in the Disaster Period;
and

The individual is not eligible for compensation608 or for waiting period credit for such week under
any other Federal or State law, except that an individual determined ineligible because of the
receipt of disqualifying income shall be considered eligible for such compensation or waiting period
credit. An individual shall be considered ineligible for compensation or waiting period credit (and
thus potentially eligible for DUA) if the individual is under a disqualification for a cause that occurred
prior to the individual's unemployment due to the disaster, or for any other reason is ineligible for
compensation or waiting period credit as a direct result of the major disaster.
Benefit Payments
DUA consists of weekly payments that are computed in the same way as regular unemployment
insurance payments (i.e. based on a Base Period of earnings as prescribed by state UI law). The Base
Period for a DUA claimant is the most recently completed tax year prior to the last date worked. For
most claimants this is the prior calendar year.
The exception to this is that an unemployed self-employed individual may base a claim on net selfemployment earnings. She may use an alternate tax year, but it must still be her most recently
completed tax year.
The minimum weekly amount will be 50 percent of the average unemployment compensation amount
in California.
Under federal regulations, weekly DUA payments are reduced by partial earnings, any insurance for
wage loss due to illness or disability, supplemental UI benefits resulting from union agreements, or
private income protection insurance.
Duration of Benefits
DUA benefits are payable only for weeks that fall within the Disaster Assistance Period, which begins
with the first day of the week following the date of the disaster and ends 26 weeks after the date the
disaster was declared.
F. Trade Adjustment Assistance
Trade Adjustment Assistance (TAA) was established under the Trade Act of 1974 to help American
workers who lost their jobs as a result of increased imports, or shift in production to foreign countries.
It is a federal program administered by the U.S. Department of Labor (DOL) and cooperating state
employment security agencies.
104
The Trade Act has been amended several times over the past 35 years. The latest amendments in 2009
made substantive changes to the TAA program including expanded coverage to more workers and firms
(including those in the service sector), and improved workers' opportunities for training, health
insurance coverage, and reemployment.
Allowances and Special Assistance
Eligible workers receive Trade Readjustment Allowances (TRA) during periods of unemployment. The
program also assists workers to regain satisfactory employment through the use of a full range of
employment services and, if needed, provides classroom and/or on-the-job training, job search, and
relocation allowances. Recipients of TRA benefits may also be eligible for the Health Coverage Tax
Credit program.
A basic claim is a fixed dollar amount payable within a 130-week benefit period that begins with the first
week following the worker's most recent TRA-qualifying separation.
Within the 130-week benefit period, the worker may receive up to 26 weeks of regular Unemployment
Insurance (UI) benefits, 26 weeks of basic TRA benefits, and up to 78 weeks of additional TRA allowances
while attending training. In addition, individuals needing to complete remedial education courses may
be entitled to another 26 weeks of additional TRA allowances.
The weekly TRA rate is the same as for UI. The maximum TRA benefit is 78 times the weekly UI benefit
amount minus the total amount of a worker’s UI claim and any related extensions.
Petitioning for TAA
If increased import competition has contributed significantly to the workers' unemployment, a petition
for TAA may be filed by any group of three or more workers of a firm or subdivision of a firm, their
union, or their duly authorized representative. The group may petition the U.S. DOL for a determination
of eligibility to apply for TAA. Workers may obtain a Petition for TAA (Form ETA 9042A) by contacting
the EDD or downloading the petition form from the U.S. DOL, Employment and Training Administration
(ETA) Web site at www.doleta.gov/tradeact/petitions.cfm.
Certification
If the U.S. DOL determines that trade import injury has occurred, it will issue a certification of eligibility
so that employees who have been laid off or had their hours reduced, as well as incumbent workers,
may apply for TAA.
A certification is an official authorization by the U.S. DOL for a specified group of workers to apply for
TAA. The certification indicates the date that the group of workers becomes eligible to apply for TAA.
A worker who learns that her group has been certified must contact the local EDD office to apply for
TAA. The EDD will determine if the worker is covered by the certification, and whether basic qualifying
requirements have been met.
105
Qualifying Requirements
The basic qualifying requirements are:

The worker must have been laid off for lack of work on or after the certified date of the trade impact
and before the termination date of the certification.

The worker must have had weekly wages of $30 or more in adversely affected employment in at
least 26 of the previous 52 weeks, ending with the week of the worker's separation.
Affected workers who move to another state and learn subsequently that former employees of their
previous company have been certified eligible to apply for TAA should contact the nearest employment
office immediately to file a benefit application.
106
APPENDICES
APPENDICES
107
A. Additional Resources
Primary Sources
California Unemployment Insurance Code:
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=uic&codebody=&hits=20
California Code of Regulations:
http://ccr.oal.ca.gov
Employment Development Department (EDD)
Home Page:
http://www.edd.ca.gov/Unemployment/default.htm
Contact Information:
http://www.edd.ca.gov/Unemployment/Contact_UI.htm
Benefit Determination Guide:
http://www.edd.ca.gov/UIBDG/
Fact Sheets, Forms, and Publications:
http://www.edd.ca.gov/Unemployment/Forms_and_Publications.htm
Frequently Asked Questions:
http://www.edd.ca.gov/Unemployment/FAQ_-_Contacting_UI.htm
Unemployment Insurance – A Guide to Benefits and Employment Services (40-pg PDF):
http://www.edd.ca.gov/pdf_pub_ctr/de1275a.pdf
California Unemployment Insurance Appeals Board (CUIAB)
Home Page:
http://www.cuiab.ca.gov/index.shtm
Contact Information:
http://www.cuiab.ca.gov/directory.shtm
Twenty-Seven Ways to Avoid Losing Your Unemployment Appeal (11-pg PDF):
http://www.cuiab.ca.gov/directory.shtm
Appeals Procedure (10-page PDF):
http://www.cuiab.ca.gov/documents/Appeals%20Procedure%20Manual.pdf
Unemployment Appeals – A Guide for Claimants, Employers, and their Representatives (51-pg PDF):
http://www.cuiab.ca.gov/documents/Unemployment%20Appeals%20Guide.pdf
Precedent Decisions
http://www.cuiab.ca.gov/precedent_decisions.shtm
Secondary Sources
California UI and Disability Compensation Programs, 10th Edition (2006), David O’Brien
FS&K Publishing, 23801 Calabasas Road #2025, Calabasas CA 91302, (818) 206-9234
108
APPENDICES
B. EDD and CUIAB Forms
For easy reference, the following list is comprised of all the EDD and CUIAB forms referenced in the text
of the Guide, and the page number of each reference. (Check the lower left corner of any EDD or CUIAB
form to find the form number, and then use the list below to find a discussion of that form in the Guide.)
Form #
Form Name / Online version (if available)
DE 1000M
Appeal Form
http://www.edd.ca.gov/pdf_pub_ctr/de1000m.pdf
67
DE 1080CZ
Notice of Determination/ Ruling
http://www.edd.ca.gov/pdf_pub_ctr/de1080cz.pdf
57
DE 1101CLMT
Notice of Unemployment Insurance Claim Filed (for Claimant)
http://www.edd.ca.gov/pdf_pub_ctr/de1101clmt.pdf
48
DE 1101CZ
Notice of Unemployment Insurance Claim Filed (for Employer)
http://www.edd.ca.gov/pdf_pub_ctr/de1101cz.pdf
45
DE 1101I
Unemployment Insurance Application
http://www.edd.ca.gov/pdf_pub_ctr/de1101id.pdf
43
DE 1326C
Request for Identity Verification
http://www.edd.ca.gov/pdf_pub_ctr/de1326c.pdf
51
DE 1326CD
Acceptable Documents For Identity Verification
http://www.edd.ca.gov/pdf_pub_ctr/de1326cd.pdf
51
DE 1326E
Request for Information
http://www.edd.ca.gov/pdf_pub_ctr/de1326e.pdf
52
DE 1444CT
Notice of Overpayment
http://www.edd.ca.gov/pdf_pub_ctr/de1444ct.pdf
65
DE 1857A
Employee Rights to UI and State Disability Insurance
5
DE 1857D
Employee Rights to UI
5
DE 2063
Notice of Reduced Earnings
http://www.edd.ca.gov/pdf_pub_ctr/de2063.pdf
DE 2320
For Your Benefit, California's Program for the Unemployed
DE 2456
CalJOBS Brochure
DE 4209
Notice of Reduced Earnings: Completion Instructions
APPENDICES
Page
101
5
50
101
109
Form #
Form Name / Online version (if available)
DE 429Z
Notice of Unemployment Insurance Award
http://www.edd.ca.gov/pdf_pub_ctr/de429z.pdf
DE 4511WS
Work Sharing Initial Claim and Payment Certification
DE 4581
Continued Claim Form
DE 4581WS
Work Sharing Certification
DE 6315
Notice of Appeal and Transmittal of Appealed Determination
DE 8686
Work Sharing Plan Application
110
Page
55
100
46
100
70
100
APPENDICES
C. Acronyms
For easy reference, the following list is comprised of acronyms found throughout this Guide, and in
various EDD and CUIAB materials and forms.
ALJ
ARRA
BDG
BP
BY
CCF
CTB
CUIAB
DOL
DUA
EB
EDD
ETA
EUC
FAC
FUTA
HUP
IAW
IUR
LWIA
MBA
P-B
PJSA
P-R
SDI
SSA
TAA
TE
TRA
TUR
UC
UI
UIB
UTF
WBA
APPENDICES
Administrative Law Judge
American Recovery and Reinvestment Act of 2009
Benefit Determination Guide
Base Period
Benefit Year
Continued Claim Form
California Training Benefits program
California Unemployment Insurance Appeals Board
Department of Labor
Disaster Unemployment Insurance
Extended Benefits
Employment Development Department
Employment and Training Administration
Emergency Unemployment Compensation
Federal Additional Compensation
Federal Unemployment Tax Act
High Unemployment Period
Initial Assistance Workshop
Insured Unemployment Rate
Local Workforce Investment Area
Maximum Benefit Amount
Precedent Benefit Decision
Personalized Job Search Assistance
Precedent Ruling Decision
State Disability Insurance
Social Security Act
Trade Adjustment Assistance
Training Extension
Trade Readjustment Allowances
Total Unemployment Rate
Unemployment Compensation
Unemployment Insurance
Unemployment Insurance Benefits
Unemployment Trust Fund
Weekly Benefit Amount
111
ENDNOTES
1
For the sake of variety and simplicity, “claimants” is used interchangeably throughout this Guide with
“clients,” “workers,” and “former employees.” The occasional use of “clients” is not intended to suggest the
establishment of a formal attorney-client relationship.
2
Public Law 74-271, approved August 14, 1935 (HR 7260).
3
There are three types of certifications. See Social Security Act § 302(a) and Federal Unemployment Tax Act
§§ 3303, 3304. Procedures for these certifications are codified at Code Fed. Regs., tit. 20, § 601.
4
Code Fed. Regs., tit. 20, § 602.1 et. seq.
5
Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494, 499. See also Wang v. C.U.I.A.B.
(1990) 225 Cal.App.3d 412.
6
Unemp. Ins. Code, § 301.
7
Unemp. Ins. Code, §§ 305, 305.5, 305.6, 310.
8
http://www.edd.ca.gov/About_EDD/EDD_Services.htm.
9
To identify the subject matter covered in the precedent decisions, the precedents have been given a letter
abbreviating the category. The most common are P-B (Precedent Benefit Decisions) and P-R (Precedent
Ruling Decisions).
10
11
Unemp. Ins. Code, §§ 1025, 1026.
12
Non-profit organizations and government employers can choose to forgo tax contributions and reimburse the
state each quarter for benefits paid to former employees. Unemp. Ins. Code, §§ 710 (public entities), 801
(non-profit organizations).
13
In some types of separation from work, former employees otherwise eligible for benefits are paid out of the
fund, but a specific employer’s reserve account is not charged. Unemp. Ins. Code, § 1032. For example, the
employer’s reserve account may not be charged for benefits paid to a former employee who quit to move for
her spouse or registered domestic partner.
14
15
16
17
Unemp. Ins. Code, § 1237, subd. (a).
18
Unemp. Ins. Code, § 1237, subds. (a), (b).
19
Labor Code § 98.6.
20
Cal. Code Regs., tit. 22, § 10890-1, subds. (b), (c).
21
22
“Discharge” and “termination” are used interchangeably throughout this Guide.
23
Unemp. Ins. Code, § 1089; Cal. Code Regs., tit. 22, § 1089-1.
24
25
Labor Code § 1198.5.
112
ENDNOTES
26
Labor Code § 432.
27
Labor Code § 226; Wage Order § 7.
28
Labor Code § 226.
29
Id.
30
Unemp. Ins. Code, § 1276. Cal. Code Regs., tit. 22, §§ 1253-1, 1253-2.
31
The EDD’s use of a Base Period that does not recognize or consider wages earned in the most recent months
prior to a claim for benefits is both antiquated and unfair. Studies indicate that it disproportionately
penalizes low-wage workers and women, who tend to move in and out of the labor force with greater
frequency. In March 2009, in order to qualify for approximately $280 million in federal incentive funding,
California enacted legislation (ABX3 29), which requires the EDD to implement an “Alternate Base Period,”
which would consider wages earned in the most recently completed calendar quarter in determining
eligibility for a UI claim. The legislation requires that these modifications be in effect by April 2011.
32
33
Unemp. Ins. Code, § 1275-1281.
34
35
Unemp. Ins. Code, § 1281, subd. (b).
36
Unemp. Ins. Code, § 601 et seq.
37
Cal. Code Regs., tit. 22, § 629-1, subd. (b).
38
39
40
Unemp. Ins. Code, § 632. (Note: Federal workers collect Unemployment Insurance through their state
agency.)
41
Unemp. Ins. Code, § 634.5, subd. (a).
42
43
44
45
46
47
48
See Unemp. Ins. Code, § 1264 and Cal. Code Regs., tit. 22, § 1264-1, subd. (a).
49
Id.
50
51
52
Cal. Code Regs., tit. 22, § 1326-13, subd. (c)(1). Note that this section includes the complete list of
satisfactory “verification responses.”
53
Cal. Code Regs., tit. 22, § 1326-13 subd. (a), citing to § 121 of the Immigration Reform and Control Act of
1986, 42 USC 1320(b)-7(d).
54
Cal. Code Regs., tit. 22, § 1326, subd. (a).
ENDNOTES
113
55
56
57
Cal. Code Regs., tit. 22, § 1326-13, subd. (c)(2).
58
59
Cal. Code Regs., tit. 22, § 1326-13, subd. (f).
60
61
62
Unemp. Ins. Code, § 1256.3; P-B-154; P-B-267.
63
P-B-269.
64
P-B-5; P-B-270. See also Cal. Code Regs., tit. 22, § 1256-2.
65
Cal. Code Regs., tit. 22, § 1256-2, subd. (c)(2); P-B-5; P-B-210; P-B-270.
66
Cal. Code Regs., tit. 22, § 1256-2, subd. (b)(3).
67
68
69
Zorrero v. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434 [120 Cal.Rptr. 855].
70
O’Connell v. Unemployment Insurance Appeals Bd. (1983) 149 Cal.App.3d 54 [196 Cal.Rptr. 505].
71
Yellow Cab Co. v. CUIAB (1961) 194 Cal.App.2d 343 [15 Cal.Rptr. 425].
72
Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-37.
73
Cal. Code Regs., tit. 22, § 1256-1, subd. (d); P-B-189; P-B-218.
74
75
76
Cal. Code Regs., tit. 22, § 1256-1; P-B-166.
77
Id.
78
79
80
P-B-102.
81
P-B-458.
82
83
Unemp. Ins. Code, § 1256; see also Zorrero v. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434.
84
Cal. Code Regs., tit. 22, § 1256-30(b).
85
86
Rowe v. Hansen (1974) 41 Cal.App.3d 512.
87
Unemp. Ins. Code, § 1256; Maywood Glass Company v. Stewart (1959) 170 Cal.App.2d 719. See also Zorrero
v. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434, Prescod v. California Unemployment
Insurance Appeals Board (1976) 57 Cal.App.3d 29.
114
ENDNOTES
88
Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719 [339 P.2d 947]; P-B-214; P-B-222; P-B-224. See also
P-B-3 at 5-6.
89
Cal. Code Regs., tit. 22, § 1256-38. See also P-B-14; P-B-223.
90
Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719; Silva v. Nelson (1973) 31 Cal.App.3d 136 [106
Cal.Rptr. 908] (single offensive remark to employer was a mistake or error in judgment, not misconduct). See
also P-B-3 at 5-6.
91
P-B-14 (a truck driver who had five accidents, three of which were his fault, in a single year committed
misconduct).
92
P-B-193.
93
Cal. Code Regs., tit. 22, § 1256-43, subd. (b); P-B-191 (off-duty drunken driving not misconduct); P-B-189 (offduty gambling not misconduct).
94
P-B-217 (off-duty possession of narcotics is misconduct for a pharmacist).
95
Cal. Code Regs., tit. 22, § 1256-30, subd. (c).
96
Id. See also Packers Hide Association v. NLRB (8th Cir. 1966) 360 F.2d 59; P-B-192.
97
P-B-106 (claimant was employed on a ship and employer said discharge was effective at the end of the
voyage).
98
99
Cal. Code Regs., tit. 22, § 1256-36 (Comments).
100
Cal. Code Regs., tit. 22, § 1256-36, subd. (b)(1) (defining different types of orders that are considered
unreasonable).
101
P-B-219.
102
103
Id.
104
Cal. Code Regs., tit. 22, § 1256-36, subd. (b)(3); Benefit Determination Guide at Misconduct 255, subd. (B).
105
Cal. Code Regs., tit. 22, § 1256-36 (Comments).
106
Id.
107
108
Silva v. Nelson (1973) 31 Cal.App.3d 136.
109
P-B-216.
110
111
112
113
114
Cal. Code Regs., tit. 22, § 1256-40, subd. (c)(1). See also Drysdale v. Dept. of Human Resources Development
(1978) 77 Cal.App.3d 345 [142 Cal.Rptr. 495].
115
116
ENDNOTES
115
117
Cal. Code Regs., tit. 22, § 1256-40, subd. (d).
118
Cal. Code Regs., tit. 22, § 1256-34, subd. (b); P-B-10 (witness committed misconduct when he did not report a
theft and did not cooperate in the investigation).
119
120
Benefit Determination Guide at Misconduct 140, subd. (A) (interpreting Cal. Code Regs., tit. 22, § 1256-34,
subd. (b), as permitting the condonation defense when the employer has knowledge of the specific dishonest
acts and fails to reprimand).
121
Cal. Code Regs., tit. 22, § 1256-34, subds. (c), (d).
122
123
P-B-57 (holding former airline employee who had his employer’s miniature bottles of liquor in his car
committed misconduct, where his only explanation was that an unknown third party must have put the
bottles there). See also Benefit Determination Guide at Misconduct 140, subd. (E).
124
Jackson v. EDD (1981) 80-4418 (mail carrier committed misconduct for discarding mail, even though he was
acquitted of federal criminal charges); P-B-57.
125
Delgado v. Unemployment Insurance Appeals Bd. (1974) 41 Cal.App.3d 788 [116 Cal.Rptr. 497] (holding
cashier did not commit misconduct when she failed to ring up three sales at the time of the sale in order to
prevent customers from waiting, especially because her supervisor condoned this practice and she was never
warned not to do it).
126
Buchwell v. EDD (1980) 79-6313 (claimant discharged for misconduct where he falsified his job application by
claiming that he left his previous job because his father died, when, in fact, he had been fired from that job
for insubordination).
127
Cal. Code Regs., tit. 22, § 1256-34, subd. (e)(5); P-B-241 (claimant who checked “no” when asked whether he
had ever been arrested did not commit misconduct because Cal. Lab. Code § 432.7 prohibits most employers
from asking about arrests that did not result in convictions on the initial employment application form. But
the employer can ask about arrests in the employment process following receipt of the initial application
form). See also P-B-77 (decided prior to enactment of Cal. Lab. Code § 432.7); P-B-78. See also the provisions
on medical examinations and inquiries, the Americans with Disabilities Act, 42 U.S.C. § 12112 subd. (d); Fair
Employment and Housing Act, Gov. Code, § 12940, subd. (e).
128
P-B-77 (concurring opinion); Benefit Determination Guide at Misconduct 140, subd. (I).
129
P-B-184 (rejecting employer’s argument that claimant must have misrepresented his past work experience
because he failed to perform satisfactorily); Benefit Determination Guide at Misconduct 140, subd. (I).
130
Cal. Code Regs., tit. 22, § 1256-38, subd. (b)(3); Benefit Determination Guide at Misconduct 390, subd. (B).
131
Cal. Code Regs., tit. 22, § 1256-39, subd. (b); P-B-192 (not misconduct where claimant was discharged
because two co-workers, who did not get along with him, said that they would quit if he were not fired).
132
133
Id.; P-B-167 (taxi driver did not commit misconduct because he did not provoke the fight with a co-worker
and he hit the co-worker only in self-defense).
134
Morris v. Unemployment Insurance Appeals Bd. (1973) 34 Cal.App.3d 1002 [110 Cal.Rptr. 630].
135
Benefit Determination Guide at Misconduct 390, subd. (A)(2) (a claimant did not commit misconduct by
saying, “If you go on talking, this hammer will go to your head” because his co-worker considered the remark
a joke).
116
ENDNOTES
136
P-B-185 (sleeping on the job is not misconduct where claimant, who was recently switched to the night shift,
dozed momentarily on one occasion while seated upright at his work station with a pencil still in his hand).
137
Benefit Determination Guide at Misconduct 310, subd. (B) (noting that good excuses for falling asleep on duty
include tiredness because the employer asked the employee to work overtime and taking medication that the
employee did not know would make her drowsy).
138
Cal. Code Regs., tit. 22, § 1256-37, subd. (b)(1), (3); P-B-221 (hotel bellman committed misconduct when he
drank alcohol with guests on one occasion, even though he did not know of employer’s rule).
139
Cal. Code Regs., tit. 22, § 1256-37, subd. (c); Benefit Determination Guide at Misconduct 270, subd. (A)(3).
140
Such claimants are ineligible under Unemp. Ins. Code, § 1256.4, subd. (a), rather than being ineligible because
they committed misconduct under § 1256. See Jacobs v. CUIAB (1972) 25 Cal.App.3d 1035 [102 Cal.Rptr. 364]
(holding that if an alcoholic has an irrestible compulsion to drink, his actions are not willful as § 1256
requires).
141
Unemp. Ins. Code, § 1256.4, subd. (b); P-B-465.
142
143
144
P-B-191 (janitor discharged for off-duty drunken driving arrest not fired for misconduct).
145
AFL-CIO v. Unemployment Insurance Appeals Bd. (1994) 23 Cal.App.4th 51 [28 Cal.Rptr.2d 210] (refusing to
take a drug test is misconduct because job on an offshore oil drilling platform was hazardous); Benefit
Determination Guide at Misconduct 270, subd. (A)(5) (reporting to work with an obvious hangover –
bloodshot eyes, wrinkled clothes and the smell of alcohol on one’s breath – is misconduct).
146
See AFL-CIO v. Unemployment Insurance Appeals Bd. (1994) 23 Cal.App.4th 51; P-B-454; P-B-470 (all
addressing when an employee’s refusal to take a drug test is misconduct).
147
P-B-217 (off-duty possession of narcotics is misconduct for a pharmacist).
148
P-B-27. See also Cal. Code Regs., tit. 22, § 1256-3, subd. (b).
149
Cal. Portland Cement Co. v. CUIAB (1960) 178 Cal.App.2d 263 [3 Cal.Rptr. 37].
150
Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(5); P-B-237; P-B-246. See also “Caring for Family Members”
below.
151
Cal. Code Regs., tit. 22, §§ 1256-13, subd. (c), 1256-15, subds. (b) & (c). See also “Unsafe Working Conditions”
below.
152
Rabago v. Unemployment Insurance Appeals Bd. (1978) 84 Cal.App.3d 200 [148 Cal.Rptr. 499].
153
P-B-8.
154
Cal. Code Regs., tit. 22, § 1256-3, subd. (b). For example, if a claimant says she quit to move for her husband
to a place that would be too far to commute for her job, but then she actually made the commute for months
before quitting, she might be disbelieved, unless she can argue that she was trying the commute out as part
of his reasonable efforts to keep her job.
155
Cal. Code Regs., tit. 22, § 1256-3, subd. (c); P-B-8.
156
Id.
157
158
P-B-457.
Cal. Code Regs., tit. 22, § 1256-16, subds. (c), (d); P-B-247; P-B-258; P-B-287; Benefit Determination Guide at
Voluntary Quit 285, subd. (C).
ENDNOTES
117
159
Cal. Code Regs., tit. 22, § 1256-16, subd. (d); P-B-246 (holding that employer was obligated to offer leave to
employee, even though she did not explicitly request it, because it knew of her situation and she did not
know about its leave of absence policy). See also P-B-94; P-B-248; P-B-256.
160
P-B-44 (job offer was not a transfer because claimant would have to change employers, and therefore, the
claimant did not have to accept the offer in order to avoid negating good cause); P-B-232.
161
P-B-232.
162
Lewis v. Unemployment Insurance Appeals Bd. (1976) 56 Cal.App.3d 729 [128 Cal.Rptr. 795]. See also Cal.
Code Regs., tit. 22, § 1256-16, subd. (b); P-B-145.
163
164
P-B-238.
165
Perales v. Dept. of Human Resources Development (1973) 32 Cal.App.3d 332 [108 Cal.Rptr. 167]. Unemp. Ins.
Code, § 1256; see also Zorrero v. Unemployment Insurance Appeals Bd. (1975) 47 Cal.App.3d 434; Cal.
Portland Cement Co. v. CUIAB (1960) 178 Cal.App.2d 263 [3 Cal.Rptr. 37].
166
167
Id. Family Code § 297 defines domestic partners as same-sex partners, both of whom are at least age 18, or
opposite-sex partners if one person is at least 62 years old, and requires that they register with the state. See
also Benefit Determination Guide at Voluntary Quit 155, subd. (D)(5).
168
169
Id.; P-B-236 (typist who quit her Palo Alto job to move with her husband to Hayward did not have good cause
because distance, travel time and cost did not make it unreasonable for her to commute); P-B-334
(maintaining family unity was good cause for wife who quit to move with her husband to Wisconsin).
170
P-B-232; P-B-287.
171
Unemp. Ins. Code, § 1032, subd. (c). An employer has to provide information to EDD within 10 days of
receiving notice that a claim has been filed, as required by Unemp. Ins. Code, § 1030, in order to avoid having
its reserve account subject to charges.
172
Norman v. Unemployment Insurance Appeals Bd. (1983) 34 Cal.3d. 1 [192 Cal.Rptr. 134].
173
MacGregor v. Unemployment Insurance Appeals Bd. (1984) 37 Cal.3d. 205 [207 Cal.Rptr. 823].
174
Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(5); P-B-237 (good cause where claimant moved out-of-state so
that parents could care for his minor children); P-B-246 (mother who quit to care for her child had no
reasonable alternatives because nursery would not watch the child who had been exposed to measles,
mother was denied a transfer to the night shift and employer did not offer her a leave of absence).
175
Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(1); P-B-202 (quitting to prepare dinner for spouse, who was not
ill, is not good cause); P-B-209 (desire to be with family on Sunday was a personal preference, rather than
good cause); P-B-239 (caring for seriously ill husband is good cause). See also Cal. Code Regs., tit. 22, § 12569, subd. (c) (defining “family”); Benefit Determination Guide at Voluntary Quit 155, subd. D(5) (“a registered
domestic partner is considered equal to a spouse”).
176
Cal. Code Regs., tit. 22, § 1256-10 (Comments); P-B-299 (resigning to move near ill mother is not good cause
because claimant was not needed to provide care).
177
Cal. Code Regs., tit. 22, § 1256-10, subd. (c)(1); P-B-238 (quitting to visit mother who had suffered a
potentially fatal heart attack is good cause).
178
P-B-238.
179
Unemp. Ins. Code, § 1256; Benefit Determination Guide at Voluntary Quit 155, subd. (D)(6).
118
ENDNOTES
180
Benefit Determination Guide at Voluntary Quit 155, subd. (D)(6).
181
Id.
182
Unemp. Ins. Code, § 1032, subd. (d). An employer has to provide information to EDD within 10 days of
receiving notice that a claim has been filed, as required in Unemp. Ins. Code, § 1030, in order to avoid having
its reserve account subject to charges.
183
Cal. Code Regs., tit. 22, § 1256-15, subd. (d)(3); P-B-254 (pregnant claimant who did not consult a doctor
before quitting did not have good cause). See also P-B-94 (claimant who could not perform her “strenuous
duties” as a nurse’s aide as her pregnancy advanced had good cause to quit).
184
Cal. Code Regs., tit. 22, § 1256-15, subd. (d)(1).
185
Rabago v. Unemployment Insurance Appeals Bd. (1978) 84 Cal.App.3d 200.
186
P-B-144.
187
P-B-263 (claimant under doctor’s care who suffered from colds and nervousness because of work conditions
had good cause). See also P-B-117 (claimant who quit to move away from smoggy area did not have good
cause because he was not following a doctor’s advice and his symptoms, if any, were minor); P-B-251
(claimant did not have good cause because he declined to provide medical evidence of wife’s condition);
Benefit Determination Guide at Voluntary Quit 235, subd. (B).
188
P-B-276 (even though he did not consult a doctor, ship cook with severe cold and pleurisy pains had good
cause because of his prior medical history).
189
Cal. Code Regs., tit. 22, § 1256-15, subds. (b), (d)(1).
190
191
P-B-78 (claimant who accepted a job knowing that it required lifting but did not tell employer about his back
problems negated his good cause to quit when the job aggravated his back problems).
192
Cal. Code Regs., tit. 22, §§ 1256-13, subd. (c); 1256-15, subds. (b), (c).
193
Id.; P-B-298 (truck driver had good cause to quit when he had a minor accident caused by a defective
emergency brake, which the employer had still not repaired a month after the driver first complained).
194
195
Id.
196
197
P-B-300. See also P-B-139 (conditions were intolerable where supervisor put his hands on employee, cursed
and shoved her, and made prying inquiries into her personal life).
198
199
Unemp. Ins. Code, § 1256.2 (discrimination based on race, color, religious creed, sex, national origin, ancestry
and physical disability); Unemp. Ins. Code, § 1256.7 (sexual harassment); Cal. Code Regs., tit. 22, § 1256.2-1
(discrimination based on age (40 or older), mental disability, medical condition, marital status or any other
unlawful basis).
200
See Prescod v. Unemployment Insurance Appeals Bd. (1976) 57 Cal.App.3d 29 [127 Cal.Rptr. 540] (sex
discrimination); Morrison v. Unemployment Insurance Appeals Bd. (1976) 65 Cal.App.3d 245 [134 Cal.Rptr.
916].
201
Unemp. Ins. Code, § 1256.2, subd. (b); Cal. Code Regs., tit. 22, § 1256.2-1, subd. (e) (when the violation is
unintentional, the employee must notify the employer and give the employer a chance to take action, but is
ENDNOTES
119
not required to file a formal complaint or charge with a state or federal agency to meet the reasonable
efforts condition).
202
Cal. Code Regs., tit. 22, § 1256.2-1, subd. (e).
203
Unemp. Ins. Code, § 1256.7; P-B-475 (claimant sexually harassed by a co-worker had good cause).
204
Cal. Code Regs., tit. 22, § 1256-23, subd. (c). See also Benefit Determination Guide at Voluntary Quit 440,
subd. (B)(2).
205
P-B-295.
206
207
208
Cal. Code Regs., tit. 22, § 1256-23, subd. (c)(3), (6).
209
P-B-307.
210
211
212
Cal. Code Regs., tit. 22, § 1256-15, subd. (e).
213
Cal. Code Regs., tit. 22, §§ 1256-6, subd. (b)(3), 1256-15, subd. (e).
214
Cal. Code Regs., tit. 22, §§ 1256-22, subd. (b)(4), (5), 1256-23, subd. (c); P-B-296 (employee had good cause to
quit when employer materially altered the employment agreement by eliminating his expected overtime and
increasing his room and board rates).
215
216
Cal. Code Regs., tit. 22, § 1256-22, subd. (c)(3) (no good cause if employee quits because employer demanded
“reasonable periodic deductions” from wages for cash shortages or equipment damage caused by the
worker’s “culpable negligence or willful dishonesty”); P-B-457 (driver had good cause to quit because the
employer deducted from his wages losses over which he had no control, including a citation for an
overweight truck). See also Cal. Code Regs., tit. 22, § 1256-7, subd. (d)(8).
217
Cal. Code Regs., tit. 22, §§ 1256-22, subd. (b)(1), (2); Benefit Determination Guide at Voluntary Quit 500,
subd. (A)(7).
218
Benefit Determination Guide at Voluntary Quit 500, subd. (A)(7).
219
P-B-8; P-B-457.
220
P-B-124. See also Cal. Code Regs., tit. 22, § 1256-22 (Comments); Bunny’s Waffle Shop v. Cal. Employment
Com. (1944) 24 Cal.2d 735 [151 P.2d 224].
221
P-B-88 (claimant quit without good cause when he accepted layoff over job downgrade with 11.2 percent pay
reduction); P-B-127. See also P-B-286 (claimant left work without good cause when he refused to accept a
transfer from skilled to unskilled work paying 13 percent less); P-B-291 (claimants offered a layoff or a job
downgrade with an 11.2 percent pay reduction had good cause to take layoff because they would lose their
seniority and recall rights, and they believed work was available elsewhere). Note: An amendment to Unemp.
Ins. Code §, 1256 has eliminated the need for balancing these factors in cases for unionized workers, such as
P-B-286 and P-B-291 – and overruled the result in P-B-286).
222
Id.
223
Id.
224
Id.
120
ENDNOTES
225
226
P-B-242 (no good cause because a two-hour, 30-minute round-trip commute was customary for the Los
Angeles area); P-B-245 (good cause where claimant, already exhausted by 12-hour workdays, had to drive
two hours each way); P-B-303 (no good cause because commuting between Oakland and San Francisco is
customary).
227
P-B-232 (good cause where claimant declined a transfer that meant a three-hour round-trip commute and an
increase in her child-care costs).
228
P-B-25 (claimant did not have good cause to quit when she lost her ride to work because she could have
repaired her car or searched more thoroughly for a car pool); P-B-233 (good cause where claimant who lost
her ride to work had to ride bus for 1.5 hours round trip and walk 11 blocks home at 2 a.m.).
229
Cal. Code Regs., tit. 22, § 1256-19, subd. (c)(1); P-B-277 (good cause where claimant resigned only after she
was given her start date for her new job, but then that job fell through because the bookkeeper she was
replacing did not retire as planned).
230
231
232
233
234
P-B-123.
235
236
237
Cal. Code Regs., tit. 22, § 1256-6, subd. (b)(5) (for example, good cause to quit would exist if a claimant who
objects to war started working for an employer not engaged in any war-related activity, but that employer
later decided to make bombs and assigned the claimant to the bomb project).
238
239
Cal. Code Regs., tit. 22, §§ 1256-6, subd. (b)(3), 1256-15, subd. (e).
240
P-B-126 (claimant who quit because he believed that he was not subordinate to plant foreman and should
not have to follow his instructions did not have good cause); P-B-138 (claimant who quit because he resented
being supervised by a younger man did not have good cause); P-B-297 (claimant who quit because a coworker was shirking her duties did not have good cause). See also Cal. Code Regs., tit. 22, § 1256-23, subd. (f).
241
Cal. Code Regs., tit. 22, § 1256-20, subd. (c)(2) (Comments); P-B-280 (claimant who quit because he wanted
to work night shifts so that he could earn extra income during the day did not have good cause); P-B-301
(claimant whose hours were reduced from full time to part time did not have good cause).
242
Cal. Code Regs., tit. 22, § 1256-20; P-B-281 (good cause where claimant quit because she worked a split shift
and had no reasonable place to rest during her three-hour break).
243
Cal. Code Regs., tit. 22, § 1256-20, subd. (c)(1) (Comments).
244
Cal. Code Regs., tit. 22, §§ 1256-18, subd. (f); 1256-19, subd. (b); P-B-366.
245
Id.
246
247
248
ENDNOTES
121
249
Cal. Code Regs., tit. 22, § 1256-18, subd. (f); P-B-270.
250
Cal. Code Regs., tit. 22, § 1256-18, subd. (f); P-B-271 (welder had good cause to quit to accept a job doing
crop-dusting as an independent contractor because he was going to be laid off soon and his union had no
other work for him).
251
Cal. Code Regs., tit. 22, § 1256-5, subd. (b); Perales v. Dept. of Human Resources Development (1973) 32
Cal.App.3d 332 (no good cause where claimant quit to attend English classes a few days before he would
have finished pruning peach trees).
252
253
Cal. Code Regs., tit. 22, § 1256, subd. (c)(3).
254
Unemp. Ins. Code, § 1267; Cal. Code Regs., tit. 22, §§ 1256-4, 1256-5, subd. (c)(2); Benefit Determination
Guide at Voluntary Quit 40, subd. (B).
255
Cal. Code Regs., tit. 22, § 1256-1, subd. (d)(1); P-B-228.
256
Eradonna Sanchez v. Unemployment Insurance Appeals Bd. (1984) 36 Cal.3d 575 [205 Cal.Rptr. 501]; P-B-271.
257
Cal. Code Regs., tit. 22, § 1256-7; P-B-229 (no good cause where claimant quit to protest employer’s
reprimand for being late in returning from his lunch break. Claimant was late because his car broke down, but
he did not tell the employer about the breakdown).
258
259
260
261
Cal. Code Regs., tit. 22, § 1256-7, subd. (d)(3), (7).
262
P-B-300.
263
In some cases, the CUIAB and courts refer to these types of discharges as “voluntary quits without good
cause.” E.g. Evenson v. Unemployment Insurance Appeals Bd. (1976) 62 Cal.App.3d 1005 [133 Cal.Rptr. 488];
P-B-209; P-B-288. In other decisions, the CUIAB and courts have called these types of discharges
“constructive quits” or merely asked whether the separation was the worker’s fault. E.g. Steinberg v.
Unemployment Insurance Appeals Bd. (1978) 87 Cal.App.3d 582 [151 Cal.Rptr. 133]; P-B-423.
264
Cal. Code Regs., tit. 22, § 1256-1, subd. (f); Steinberg v. Unemployment Insurance Appeals Bd. (1973) 87
Cal.App.3d 582, 584 [151 Cal.Rptr. at p. 134]; Benefit Determination Guide at Voluntary Quit 135 subd. (G).
265
Unemp. Ins. Code, § 1256.1; Cal. Code Regs., tit. 22, § 1256-31, subd. (d)(1); P-B-45; P-B-50; P-B-289. See also
P-B-443 (defining “24 hours”).
266
Cal. Code Regs., tit. 22, § 1256-31, subd. (d)(1); P-B-261 (claimant, who was fired because he was absent after
his arrest but who entered pleas of not guilty to charges of failing to pay child support and resisting arrest, is
entitled to a presumption of innocence and, therefore, he did not constructively quit because he did not
willfully commit a crime).
267
Cal. Code Regs., tit. 22, § 1256-31, subd. (d)(1)(B); Kaylor v. Dept. of Human Relations Development (1973) 32
Cal.App.3d 732 [108 Cal.Rptr. 267] (construing Unemp. Ins. Code, § 1256.1 as not applying to this type of
incarceration to avoid a violation of the Equal Protection Clause).
268
269
Benefit Determination Guide at Voluntary Quit 360, subd. (A)(3). See Unemp. Ins. Code, § 1256.1, subd. (b)
(permitting the EDD to reconsider a determination during the Benefit Year if the initial determination was
made before the final disposition of a court or before a guilty plea was entered and that determination was
not appealed).
122
ENDNOTES
270
P-B-288.
271
P-B-423 (school bus driver who failed a certificate renewal test three times did not constructively quit
because her inability to pass was because of emotional problems and not willful or deliberate).
272
Evenson v. Unemployment Insurance Appeals Bd. (1976) 62 Cal.App.3d 1005; P-B-290.
273
P-B-209.
274
Id.
275
P-B-471 (holding claimant could not reasonably have known that letting his personal car insurance lapse
would jeopardize his job because, although his actions did lead to his driver’s license being suspended, he
was still permitted to drive his employer’s truck at work and could not have known his employer’s insurance
carrier would refuse to cover him).
276
P-B-211.
277
Lab. Code, § 2920, subd. (a); P-B-275.
278
Gaspar v. United Milk Producers (1944) 62 Cal.App.2d 546 [144 P.2d 867]; P-B-264.
279
Unemp. Ins. Code, § 1262. This rule, coupled with the rule that a claimant collecting UI benefits is not
required to accept a position open due to a trade dispute, allows the state to remain neutral in trade
disputes. Matson Terminals Inc. v. Cal. Employment Com. (1944) 24 Cal.2d 695, 707 [151 P.2d 202, 209].
280
P-B-24; P-B-399.
281
P-B-399.
282
Bodinson Manufacturing Co. v. Cal. Employment Com. (1941) 17 Cal.2d 321 [109 P.2d 935]
283
Bunny’s Waffle Shop v. Cal. Employment Com. (1944) 24 Cal.2d 735 (holding employees did not voluntarily
leave when their employers cut their pay to try to force their union to negotiate collectively, rather than
individually, with the employers).
284
McKinney v. Cal. Employment Stabilization Com. (1949) 34 Cal.2d 239 [209 P.2d 602]; P-B-24.
285
Bodinson Manufacturing Co. v. Cal. Employment Com. (1941) 17 Cal.2d 321.
286
P-B-112.
287
Hopkins v. Cal. Employment Com. (1944) 24 Cal.2d 744 [151 P.2d 229]; P-B-95.
288
Ruberoid Co. v. CUIAB (1963) 59 Cal.2d 73 [27 Cal.Rptr. 878].
289
P-B-95.
290
Windigo Mills v. Unemployment Insurance Appeals Bd. (1979) 92 Cal.App.3d 586 [155 Cal.Rptr. 63]; Isobe v.
Unemployment Insurance Appeals Bd. (1974) 12 Cal.3d 584 [116 Cal.Rptr. 376].
291
P-B-401.
292
P-B-16.
293
294
P-B-89 (holding trade dispute ended after employer completed maintenance and had work available again,
not when the strikers agreed to return to work).
295
Unemp. Ins. Code, § 1253, subd. (c); Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(1); P-B-173.
296
See P-B-197 (holding that simply because the EDD would not refer a noticeably pregnant woman to
employers did not render her unable when her doctor advised that she could continue working as a
clerk/typist in her seventh month of pregnancy).
ENDNOTES
123
297
Unemp. Ins. Code, § 1258; Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(1); P-B-173.
298
P-B-172 (typist/bookkeeper whose doctor restricted her to no more than five hours a work a day was able,
even though she could not work full time).
299
P-B-131 (pregnant claimant was not able to work because doctor restricted her to sit-down jobs and she had
experience only as a cafeteria worker or waitress).
300
Unemp. Ins. Code, § 1253.5.
301
P-B-409 (claimant whose doctor had restricted her to working only three days a week after her heart attacks
was entitled to her full Weekly Benefit Amount, rather than only three-sevenths of the weekly amount).
302
Cal. Code Regs., tit. 22, § 2706-1.
303
Unemp. Ins. Code, § 1253, subd. (c).
304
Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (b); Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd.
(1977) 20 Cal.3d 55 [141 Cal.Rptr. 146].
305
Unemp. Ins. Code, § 1258; Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(1); P-B-173.
306
307
Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(4). Reasons that are good cause for voluntarily quitting are
likely to be good cause for restricting a job search or refusing a job offer.
308
Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(3); Rios v. EDD (1986) 187 Cal.App.3d 489 [231 Cal.Rptr. 732]
(although Texas employers preferred to hire local farmworkers, the claimants, who were migrant
farmworkers, were still available to a substantial field of employment because the existence of more than a
minimal number of agricultural employers, not actual job vacancies, is all that is required); P-B-180
(remanding to consider potential employers in the relevant area and claimant’s experience and flexibility with
respect to other work and pay rate to determine whether a substantial field of employment remained open
to the claimant). See also Glick v. Unemployment Insurance Appeals Bd. (1979) 23 Cal.3d 493 [153 Cal.Rptr. 1].
309
Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (c)(2).
310
Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd. (1970) 20 Cal.3d 55; Cal. Code Regs., tit. 22, §
1253(c)-1, subd. (d).
311
Id.
312
Benefit Determination Guide at Able and Available 5, subd. (F).
313
Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (e); Gutierrez v. EDD (1993) 14 Cal.App.4th 1791 [18 Cal.Rptr.2d
705] (claimant disqualified as unavailable under Unemp. Ins. Code, § 1253(c) because she did not currently
have INS work authorization, even though she was legally permitted to work at the time she earned wages
for her Base Period).
314
Alonso v. California (1975) 50 Cal.App.3d 242 [123 Cal.Rptr. 536] (claimant who provided his alien registration
number but refused to provide documentary evidence was held unavailable).
315
P-B-464 (Claimant was available in the weeks before Aug. 6, 1988, the date he received his INS work
authorization, because, if he had been offered a job before Aug. 6, 1988, he was eligible for work
authorization and could have obtained it in the three days specified under the procedures for the employer’s
I-9 form).
316
Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (b).
317
Unemp. Ins. Code, § 1253.8; Benefit Determination Guide at Able and Available 5, subd. (C). See also Glick v.
Unemployment Insurance Appeals Bd. (1979) 23 Cal.3d 493 [153 Cal.Rptr. 1].
124
ENDNOTES
318
Precedent Benefit Decision No. P-B-409; Precedent Benefit Decision P-B-172.
319
Unemp. Ins. Code, §§ 1253.8, 1253.9. See also Glick v. Unemployment Insurance Appeals Bd. (1979) 23 Cal.3d
493.
320
321
Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd. (1970) 20 Cal.3d 55.
322
P-B-484.
323
Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd. (1970) 20 Cal.3d 55 (holding claimant, who
could not work weekends because she needed to care for her child, was still available to a substantial field of
weekday factory or restaurant work).
324
P-B-175 (claimant was “available,” even on the day he spent traveling from Washington state to San Francisco
because a former employer had told him he might have a job for him if he came to San Francisco).
325
UAW v. Dept. of Human Resources Development (1976) 58 Cal.App.3d 924 [130 Cal.Rptr. 368] (temporarily
laid off claimants who went on personal vacations were not available because, although they had received a
firm recall date from their union, they did not provide the union with a way to contact them if work became
available earlier); P-B-260 (claimant who left the state to visit a bereaved aunt remained available because he
was far down on his union’s hiring list, and he notified the union of his whereabouts and could be back in a
day if referred to work).
326
P-B-303 (commute was between Oakland and San Francisco).
327
Benefit Determination Guide at Suitable Work 150, subd. (E).
328
P-B-199.
329
P-B-206 and P-B-180.
330
P-B-199.
331
P-B-179.
332
P-B-199.
333
People v. Nest (1942) 53 Cal.App.2d Supp. 856 [128 P.2d 444] (claimant who ran a clothing business was
available because he continued to search for work and his presence at the store was not necessary if he
found work).
334
335
Loew’s Inc. v. Cal. Employment Stabilization Com. (1946) 76 Cal.App.2d 231 [172 P.2d. 938].
336
Benefit Determination Guide at Able and Available 195, subd. (C)(4).
337
338
P-B-173 (claimant who limited herself to work as an “executive secretary,” at which she had 15 years of
experience and which paid higher salaries than regular secretaries, was available).
339
Benefit Determination Guide at Able and Available 195, subd. (C)(4).
340
341
Unemp. Ins. Code, § 1259, subd. (b); Benefit Determination Guide at Suitable Work 500, subd. (A).
342
Benefit Determination Guide at Suitable Work 500, subd. (A)(1).
343
Id. (relying on Unemp. Ins. Code, § 1258); P-B-320.
ENDNOTES
125
344
Cal. Code Regs., tit. 22, § 1253(c)-1, subd. (d); Maria Dolores Sanchez v. Unemployment Insurance Appeals Bd.
(1970) 20 Cal.3d 55.
345
346
P-B-490.
347
P-B-310.
348
349
350
P-B-490.
351
352
353
See Cal. Code Regs., tit. 22, §§ 1256-18, subd. (f); 1256-19, subd. (b). These regulations do not address the
situation of leaving a temporary job to seek a permanent job, but they do provide that leaving work to look
for another job is not good cause, unless the person quit part-time work to seek full-time work because the
part-time job hindered an effective search.
354
Unemp. Ins. Code, § 1253, subd. (e); Cal. Code Regs., tit. 22, § 1253(e)-1.
355
Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (a).
356
See P-B-196 (occasional contacts with friends about openings was not an active search); P-B-235 (applying for
work at two employers over almost five weeks would not be an active search; applying for jobs at 13
employers over about six weeks is an active search).
357
Cal. Code Regs., tit. 22, § 1253(e)-1, subd. (d)(1).
358
359
360
Unemp. Ins. Code, § 1252, subd. (a)(1).
361
362
363
Benefit Determination Guide at Total Partial Unemployment 5, subd. (B)(2).
364
365
Title 22, Cal. Code Regs., tit. 22, § 1326-1, subd. (b)(1)(A)
366
367
Unemp. Ins. Code, §§ 1257, subd. (a), 1260, subd. (c).
368
369
Unemp. Ins. Code, § 1276. Cal. Code Regs., tit. 22, §§ 1253-1, 1253-2.
370
See Cal. Code Regs., tit. 22, § 1326-10, subd. (a).
371
PB-491.
372
Id.
373
See Cal. Unemp. Ins. Code §§ 451, 453.
374
See Cal. Unemp. Ins. Code, §§ 455, 455.5.
126
ENDNOTES
375
See Unemp. Ins. Code, §§ 452.
376
O’Brien, David W. California Unemployment Insurance and Disability Compensation Programs, 10 ed.
Calabasas: MMVI FS&K Publishing Inc., 2006: 569.
377
“You must actively seek work and should register for Job Search assistance with the local employment office
in your state.” (from “Unemployment Insurance Application” page of the EDD’s website,
http://www.edd.ca.gov/uirep/uiapp.htm).
378
State X uses its own requirements to determine whether a claimant is available for work and then reports its
findings to the EDD, which determines eligibility.
379
O’Brien, David W. California Unemployment Insurance and Disability Compensation Programs, 10 ed.
Calabasas: MMVI FS&K Publishing Inc., 2006: 569.
380
“A Guide To Benefits and Employment Services,” page 23 at http://www.edd.ca.gov/uirep/de1275a.pdf.
381
See “A Guide To Benefits and Employment Services,” at http://www.edd.ca.gov/uirep/de1275a.pdf.
382
383
384
Id.
385
386
Maitland v. E.D.D. (1982), 130 Cal.App.3d [181 Cal.Rptr. 587].
387
388
389
Cal. Code Regs., tit. 22, § 1326-6, subd. (e) (referring to Cal. Code Regs., tit. 22, § 1326-10 for an explanation
of good cause).
390
P-B-448.
391
Cal. Code Regs., tit. 22, § 1326-6, subd. (e) (referring to Cal. Code Regs., tit. 22, § 1326-10 for an explanation
of good cause).
392
393
Unemp. Ins. Code, § 1253, subd. (f).
394
395
Unemp. Ins. Code, § 1253, subd. (e).
396
Cal. Code Regs., tit. 22, § 1326-3, subd. (a).
397
398
399
Cal. Code Regs., tit. 22, § 1326-3, subd. (d).
400
401
Cal. Code Regs., tit. 22, § 1326-2, subd. (b)(2)(A).
402
Cal. Code Regs., tit. 22, § 1326-13(a) citing to § 121 of the Immigration Reform and Control Act of 1986, 42
USC 1320(b)-7(d).
403
Solway v. EDD, a 1978 Superior Court case, in which the EDD entered into a stipulation agreeing to follow this
practice. See also Benefit Determination Guide at Miscellaneous 30.
ENDNOTES
127
404
Id.
405
Unemp. Ins. Code, § 1252(a).
406
407
408
Unemp. Ins. Code, § 1277; Benefit Determination Guide at Miscellaneous 15, subd. (D).
409
410
411
Id.; Benefit Determination Guide at Miscellaneous 15, subd. (D).
412
413
Cal. Code Regs., tit. 22, § 1277-2; P-B-156.
414
Molnar v. Unemployment Insurance Appeals Bd., 57 Cal.App.4th 1448 [67 Cal.Rptr.2d 771] (receiving salary
continuance pay does not satisfy the requirement of performing a service).
415
416
417
418
Unemp. Ins. Code § 1277.5 seems to permit doubling, regardless of whether the claimant was paid
unemployment benefits. However, the Benefit Determination Guide at Miscellaneous 15, subd. (D)(3) permits
doubling of the amount of wage-loss benefits received through the state disability insurance program or
workers’ compensation, only if the claimant was paid benefits on the first unemployment claim.
419
420
Id.
421
Id.
422
Unemp. Ins. Code, §§ 1328, 1330.
423
A claimant will sometimes receive a “Notice of Determination” rather than a “Notice of
Determination/Ruling.” If the last employer previously submitted a timely response to the “Notice of UI
Claim Filed,” the EDD’s eligibility determination for the claimant is also a determination regarding whether
the last employer’s reserve account will be charged. In such cases, the Notice is a “Determination/Ruling”
and sent to both parties. If the last employer fails to respond to notice of the claim filed, the last employer
loses party status, does not receive notice of the determination, and the claimant receives a “Notice of
Determination.”
424
Cal. Code Regs., tit. 22, § 1326-13; Unemp. Ins. Code, § 1253 subd. (a).
425
426
427
Cal. Code Regs., tit. 22, § 1260, subds. (a)-1(b).
428
429
Cal. Code Regs., tit. 22, § 1253, subd. (c)-2.
430
431
128
ENDNOTES
432
Unemp. Ins. Code, § 1253, subd. (e); Cal. Code Regs., tit. 22, § 1253, subd. (e)-1.
433
See Benefit Determination Guide at Miscellaneous 35, subd. (B)(6). “Not applying ESW disqualifications
retroactively is a policy of the Department; there is no statutory authority covering the procedure.”
434
435
436
Benefit Determination Guide at Miscellaneous 100, subd. (A)(1).
437
438
P-B-72; P-B-369.
439
Id.
440
P-B-224.
441
P-B-474.
442
Id. (Spanish speaker, knowing he was required to report his inability to work, hired an English speaker to fill
out his Continued Claim Forms but did not tell his agent he was injured and unable to work). But see P-B-418
(non-English-speaking carpenter who asked a co-worker to fill out his Continued Claim Form did not know his
responses on the form were false when his co-worker, whom he had told about his earnings, failed to
properly report those earnings). Note: The Continued Claim Form is now available in Spanish.
443
P-B-224 (claimant did not make a false statement when she told the EDD and honestly believed that she was
fired for refusing to work Saturdays, but the employer told the EDD she was fired for poor work
performance).
444
See P-B-436 (a claimant has an obligation to ensure information provided to the EDD is accurate and,
therefore, made a false statement when she collected duplicate benefits because she did not remember
receiving and cashing her first benefit check).
445
P-B-347 at 4 (finding “inherently improbable” a claimant’s story of forgetting her earnings because she was
worried over financial matters).
446
447
448
Unemp. Ins. Code, § 1260, subd. (d).
449
P-B-369; Benefit Determination Guide at Miscellaneous 45, subd. (A).
450
Unemp. Ins. Code, § 2101 et seq.; Penal Code, § 470.
451
452
Unemp. Ins. Code, § 1260, subd. (c), (d).
453
Unemp. Ins. Code, § 1260, subd. (c), (d).
454
455
Unemp. Ins. Code, § 1375.1
456
457
Id.
458
Id.
459
Unemp. Ins. Code, § 1375; Cal. Code Regs., tit. 22, § 1375-1, subd. (a).
ENDNOTES
129
460
P-B-347; P-B-369.
461
462
P-B-368.
463
Cal. Code Regs., tit. 22, § 1375-1(d); Gilles v. Dept. of Human Resources, (1974) 11 Cal. 3d 313, 323 [113
Cal.Rptr. 374].
464
P-B-377.
465
See Unemp. Ins. Code, § 1255 (not permitting the collection of unemployment benefits from more than one
state at the same time).
466
P-B-368.
467
468
Id.
469
Id.
470
E.g. Gibson v. Unemployment Insurance Appeals Bd., 9 Cal. 3d 494, 499 [108 Cal.Rptr. 1, 4]; Flores v.
Unemployment Insurance Appeals Bd. (1973) 30 Cal.App.3d 681, 684 [106 Cal.Rptr. 543, 546].
471
472
P-B-392.
473
Id.
474
P-B-377.
475
P-B-392.
476
477
Id.
478
Unemp. Ins. Code, § 1376; Cal. Code Regs., tit. 22, § 1375-1, subd. (g).
479
480
481
Id.
482
Cal. Code Regs., tit. 22, § 1375-1, subd. (f).
483
Id.
484
Unemp. Ins. Code, § 1379, subd. (d).
485
Unemp. Ins. Code, § 1379, subd. (a), (b).
486
Gov. Code, § 12419..5
487
Cal. Code Regs., tit. 22, § 5008, subd. (a) (refering to the definition of “filing” in Cal. Code Regs., tit. 22, §
5000, subd. (gg)).
488
Cal. Code Regs., tit. 22, § 5008.
489
490
491
130
ENDNOTES
492
493
P-B-354.
494
495
496
Unemp. Ins. Code, §§ 1328 (benefit denials), 1377 (overpayments).
497
P-B-347 (good cause for filing an appeal almost a month late).
498
P-B-348, P-B-420.
499
Id.
500
Flores v. Unemployment Insurance Appeals Bd. (1973) 30 Cal.App.3d 681 [106 Cal.Rptr. 543]; Gibson v.
Unemployment Insurance Appeals Bd. (1973) 9 Cal.3d 494 [108 Cal.Rptr. 1]. See also P-B-348 (good cause for
filing 17 days late because the claimant made an honest and good-faith mistake in believing, based on her
reading of the Notice of Determination, that she had to earn $410 before she could appeal).
501
Amaro v. Unemployment Insurance Appeals Bd. (1977), 65 Cal.App.3d 715 [135 Cal.Rptr. 493]. See also
Martinez v. Unemployment Insurance Appeals Bd. (1976) 63 Cal.App.3d 500 [133 Cal.Rptr. 806] (no good
cause for filing the appeal 20 days late because claimant was caring for sick family members for four days and
looking for a place to move); Perez v. Unemployment Insurance Appeals Bd. (1970) 4 Cal.App.3d 62 [83
Cal.Rptr. 871] (no good cause for filing almost five months late because the claimant did not understand the
law and believed the EDD’s decision was correct).
502
Gibson v. Unemployment Insurance Appeals Bd. (1973) 9 Cal.3d 494.
503
Cal. Code Regs., tit. 22, § 5050, subds. (a), (b).
504
Cal. Code Regs., tit. 22, § 5050, subds. (e)-(i).
505
506
507
508
509
510
511
Id.
512
513
The Secretary of Labor interprets §§ 303(a)(1) and 303(a)(3) of the Social Security Act to require that a State
law include provisions for appeal hearings and decisions “with the greatest promptness that is
administratively feasible.” Code Fed. Regs., tit. 20, § 650.3. A State will be deemed to comply substantially
with this requirement if the State has issued at least 60 percent of all first level benefit appeal decisions
within 30 days of the date of appeal, and at least 80 percent of all first level benefit appeal decisions within
45 days. Code Fed. Regs., tit. 20, § 650.4. For the third quarter of 2009, only 2.6% of California appeals
decisions were issued within 30 days of the date of appeal, and 6.0% of California appeals decisions were
issued within 45 days of the date of appeal.
514
Cal. Code Regs., tit. 22, § 5062, subd. (b); P-B-483.
515
516
Cal. Code Regs., tit. 22, § 5066, subd. (h).
ENDNOTES
131
517
Unemp. Ins. Code, § 1095, subd. (b), (c). See also P-R-468.
518
Unemp. Ins. Code, § 1095, subd. (b), (c); Cal. Code Regs., tit. 22, §§ 5010, subd. (j).
519
P-B-218; P-B-293; P-B-378.
520
Lab. Code, § 230, subd. (b).
521
Rabago v. Unemployment Insurance Appeals Bd. (1978) 84 Cal.App.3d 200 [148 Cal.Rptr. 499].
522
523
Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494, 499.
524
Cal. Code Regs., tit. 22, § 5062, subd. (n).
525
Cal. Code Regs., tit. 22, § 5063(b).
526
Id.
527
Cal. Code Regs., tit. 22, § 5062, subd. (m).
528
Cal. Code Regs., tit. 22, § 5062, subd. (c).
529
Cal. Code Regs., tit. 22, § 5062, subd. (m).
530
531
Cal. Code Regs., tit. 22, § 5062, subd. (e).
532
Cal. Code Regs., tit. 22, § 5062, subd. (f).
533
P-B-218; P-B-293; P-B-378.
534
P-B-57; P-B-478.
535
Evid. Code, § 1200, subd. (a).
536
537
Per the U.S. Department of Labor, the Office of Appeals should decide 60 percent of appeals within 30 days
and 80 percent of appeals within 45 days.
538
539
540
541
P-B-10.
542
Cal. Code Regs., tit. 22, § 5103, subds. (a), (b).
543
Cal. Code Regs., tit. 22, § 5103, subds. (c)-(g).
544
Cal. Code Regs., tit. 22, § 5008, subd. (a) (referring to the definition of “filing” in Cal. Code Regs., tit. 22, §
5000, subd. (gg)).
545
546
Cal. Code Regs., tit. 22, § 5010, subd. (j).
547
Cal. Code Regs., tit. 22, § 5105, subd. (b).
548
549
132
ENDNOTES
550
Cal. Code Regs., tit. 22, § 5105, subd. (b).
551
552
553
Code Civ. Proc., § 1094.5.
554
555
Du Four v. Unemployment Insurance Appeals Bd. (1975) 49 Cal.App.3d 863 [122 Cal.Rptr. 859].
556
E.g. Windigo Mills v. Unemployment Insurance Appeals Bd. (1979) 92 Cal.App.3d 586, 595 [155 Cal.Rptr. 63,
69].
557
Windigo Mills v. Unemployment Insurance Appeals Bd. (1979) 92 Cal.App.3d 586, 594 [155 Cal.Rptr. 63, 68].
558
There is a limited exception to this order of payment. Some claimants exhausted their first two tiers of EUC
benefits and commenced Fed-ED benefits prior to the enactment of an expansion to the EUC program (i.e.
tiers three and four). These claimants will continue to receive any Fed-ED benefits prior to switching to EUC
tiers three and four.
559
The date of the four extensions are as follows: November 21, 2008 (Public Law 110-449), February 17, 2009
(Public Law 111-5), November 6, 2009 (Public Law 111-92), and December 19, 2009 (Public Law 111-118).
560
Public Law 110-252, § 4002(b) and (c).
561
Public Law 110-252, § 4002(d) and (e).
562
Public Law 110-252, § 4001(d)(1).
563
Public Law 110-252, § 4002(d).
564
Public Law 110-252, § 4002(e).
565
Public Law 110-252, § 4001(d)(2)(A).
566
567
Public Law 110-252, § 4007, subd. (a).
568
Public Law 110-252, § 4007, subd. (b)(1) and (2).
569
Public Law 110-252, § 4007, subd. (b)(3).
570
The Fed-ED law required states to enact enabling legislation; California’s provisions are codified at Unemp.
Ins. Code, §§ 4001 – 4751.
571
Federal-State EUCA of 1970, § 203(d); Unemp. Ins. Code, § 4003, subd. (c)(1) and (2).
572
ARRA, Title II, § 2005. Department of Defense Appropriations Act, 2010, Public Law No. 111-118 (enacted
December 19, 2009), § 1009(a)(3) extended the end date of the temporary funding from December 31, 2009
to February 28, 2010.
573
Unemp. Ins. Code, § 4003, subd. (c)(3); Federal-State EUCA of 1970 § 203(f)(1)(A).
574
Unemp. Ins. Code, § 4004, subd. (e); Federal-State EUCA of 1970, § 202(b)(3)(A).
575
Public Law 110-252, § 4001(d)(2)(A).
576
577
578
ENDNOTES
133
579
Senate Bill 1471.
580
Unemp. Ins. Code, § 1279.5, subd. (i).
581
582
Unemp. Ins. Code, § 1279.5, subd. (a).
583
Unemp. Ins. Code, § 1279.5, subd. (k).
584
These first three requirements are codified at Cal. Code Regs., tit. 22, § 1252-1, subd. (a).
585
586
587
588
Cal. Code Regs., tit. 22, § 1326-10.
589
590
591
592
593
Benefit Determination Guide at Miscellaneous 85, subd. (B).
594
595
Unemp. Ins. Code, § 1269, subd. (d). See also Benefit Determination Guide at Miscellaneous 85.
596
P-B-109.
597
598
P-B-466.
599
Id.
600
Unemp. Ins. Code, § 1271.5, subd. (a). See also P-B-482 (Note, however, that the Legislature rewrote the code
section after this decision and it appears that notifying claimants with the “UI Guide to Benefits” will satisfy
the EDD’s duty to notify).
601
602
603
Id.
604
605
606
Code Fed. Regs., tit. 20, § 625.4.
607
“Major disaster” as provided in Code Fed. Regs., tit. 20, § 625.5.
608
See Code Fed. Regs., tit. 20, § 625.2(d).
134
ENDNOTES

UI Advocates Guide - Legal Aid Society

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