Skelly

I have strong concerns about the advice you are getting. First, if the hearing officer and your department head are one and the same, any advice you get is from your adversary, and you should not rely on it without having a darn good reason. If your union is telling you to resign, I assume that is based on information you provided to the union; if it is based on information the union is getting from your department, then again, it is information from an adversary and it makes no sense to rely on it without reason.

Public sector employees in California often have a Constitutional property interest in their jobs, as well as a liberty interest. Skelly hearings are part of a public sector employee's due process rights. As the other attorney who responded indicated, it is inappropriate for a decision maker, or anyone in the same line of supervision, to also be the hearing officer. This would be a fundamental denial of due process.

Skelly hearings also provide the basis for any appeal you may file. You want to be sure the evidence and facts provided at the hearing are as much in your favor as possible.

Know that while your union representative is perhaps very knowledgeable about your workplace, the union rep is not an attorney. Unions are only responsible for protecting rights that are contained in the memorandum of understanding (contract) between the employer and the union. Some union reps are simply fabulous and have tremendous knowledge of other areas; some are very limited in their knowledge. You may benefit from consultation with an attorney, although it is possible you will have to pay an attorney on an hourly basis for the consultation, and perhaps for eventual representation at the Skelly hearing.

Generally, individuals are eligible for unemployment benefits if they are unemployed through no fault of their own. This means that in California, if individuals are otherwise eligible, they are only disqualified from receiving benefits for two reasons: if the were fired for misconduct, or if they quit without cause. "Misconduct" is an act by the employee against an employer's interest. Being incompetent, slow, unable to perform to the employer's standards, and more is NOT misconduct. Quitting without cause is not specifically defined. In some cases, the Employment Development Department and/or the Unemployment Insurance Appeals Board have determined that an employee who quits in lieu of being fired is still eligible for benefits. This is because in reality, the employer is the one who ended the employment relationship, not the employee.

You can find out more about the relevant precedent benefit decisions at http://www.edd.ca.gov/UIBDG/.

Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney, and given the seriousness of your situation -- that you may lose your job -- I urge you to do so. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area. Make sure any attorney you contact specifies that he or she has experience representing employees in the public sector.

I hope you can resolve your situation and wish you the best.

Marilynn Mika Spencer

____________________________________________
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
mspencer@spencerlawoffice.com

posted by Marilynn Mika Spencer  |  Feb 26, 2012 6:31 PM [EST]

You do not say for what agency you work. However, generally speaking, a "skelly" hearing should be heard by someone other than the decision maker, although in my experience the "skelly" hearing rarely changes anything. After the skelly hearing, and assuming the notice is upheld, generally you will have appeal rights to the next level as per your union agreement.

Unemployment benefits are generally not available if you resign - but there are exceptions and there is a presumption you are entitled to them unless the employer contests. Regardless of whether the employer contests, sometimes the EDD will do an independent investigation to determine the circumstances and if the claimant resigned.

Unemployment benefits can be denied if you engage in "willfull misconduct" which requires that you have notice of the bad conduct and given a chance to correct it. The California EDD website is a really good resource. You can be terminated "for cause" yet still not meet the "willfull misconduct" threshold to bar unemployment benefits. However, if the employer contests, you will generally need to fight for the benefits - going to a hearing to prove your case.

For more specific advice, you should speak to an employment attorney near you.

posted by Elisa Ungerman  |  Feb 25, 2012 5:04 PM [EST]