One of the frequent questions our clients ask after being terminated is whether or not they can still qualify for unemployment. Anyone who has been terminated is now first and foremost worried about finances, and this is an important question especially in today’s economy.
The short answer is that, yes, you still have a very good chance of receiving your benefits.

Unemployment Process

If you wish to receive unemployment after being terminated you will first fill out the necessary paperwork to apply. That form will ask you the reason for your separation and it is important that you be honest, but at the same time don’t throw yourself under the bus. We are seeing an increasing number of claims being approved even when the employee indicate they were terminated for cause.
Once the California Employment Development Department (commonly called the EDD) receives this information, they will provide notice of your application to your former employer. Your employer will then have 12 days to respond with their objections to you receiving benefits.
The EDD will then do one of two things, they will either grant your benefits outright or they may deny your claim at that time. Most of the time your former employer’s initial response is not going to be flattering and they will highlight all the reasons why you were a bad employee and had to be fired. That doesn’t mean your benefits will not be granted, but it does make your chances lower.
Assuming your benefits are granted, the employer can still file an appeal of that decision with the EDD. The Appeals Division will then schedule a hearing before an Administrative Law Judge (ALJ) at the closest regional office. Similarly, if your benefits are denied outright, you too can file an appeal before an ALJ to contest the denial.

The Appeal Process

If your benefits are initially granted and you begin collecting unemployment, if your employer files an appeal the EDD will send you a notice that the appeal has been requested. Usually they will also advise you that any benefit checks you cash after you have received the notice, may be subject to re-payment if you lose at the appeal. It will be up to you to determine if you wish to take the risk that if you were to lose your appeal hearing that you may have to repay any money you have continued to collect.
During the time frame between the notice of appeal, and the appeal results, it is important you continue to submit claim forms and the EDD will continue to send you checks. Even if you lose, the EDD does not always seek repayment of money collected, but they can and at times do. If that were to happen you may find yourself in a situation of not having the money to repay the previously collected benefits. While payment plans are available, the EDD has the ability (among other things) to garnish your next tax refund to collect the money owed. Be careful when making the decision to continue to collect unemployment while an appeal is pending.

Standard of Review at Appeal

When hearing an appeal, either from an employee or an employer, the ALJ (in termination cases) will focus on whether or not the employee was terminated for misconduct associated with their prior job.
Unemployment Insurance Code Section 1256 states that if an employee has been discharged for misconduct associated with their most recent work, then they do not qualify for unemployment benefits. So then the obvious question becomes, what is “misconduct”?
If you ask your employer what misconduct is, it will be anything and everything they try to throw at the wall to justify your termination. Often EDD appeals will occur well before any appeal procedure of your termination, so most of the outstanding allegations against you have not yet been resolved.
The standard applied by the ALJ at the EDD appeal is defined by the California Court of Appeals decision, Maywood Glass Company v. Stewart (1959), 170 Cal. App. 2d 719, 339 P. 2d 947. The standard in Maywood is set forth as follows:
“. . . the intended meaning of the term ‘misconduct’ . . . is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such decree or recurrence as to manifest equal culpability, wrongful intent or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute [emphasis added].”
Essentially the employer must show (if it is their appeal) that the misconduct they allege is intentional, blatant and a flagrant disregard for the employer’s interests. Conversely if it is your appeal, the burden is on you to prove that your actions did not rise to the level of “misconduct” as defined by Maywood. As you can probably see, this standard is much higher than what most employers claim justify termination and denial of unemployment benefits. As a result, employers often have a hard time proving or defending why you should not receive your benefits. It is also important to note that employers (and their attorneys) often do not thoroughly prepare for these hearings, as a result, if you (and your attorney) show up prepared they are caught off guard.

We are seeing an increasing number of these appeals be successful in getting unemployment benefits granted to those who had previously received a denial of coverage or had to oppose an appeal by their employer. So if you have been terminated for cause, don’t despair! You may very well still be able to qualify for unemployment.

You are entitled to an attorney at an EDD appeal

What many people often don’t know is that you can have an attorney at your EDD appeal to represent you. Often the costs of retaining a private attorney for this purpose are outweighed by the financial value of continued EDD benefits. In most cases, even if you are successful in appealing your termination and get your job back, that process could take months during which time you may not have a source of income. Most EDD appeal hearings only take a few hours and are not difficult for an attorney with experience to prepare for. There also may be legal objections, witnesses to examine and evidence to admit during the hearing. Having an experienced attorney present can assist you with navigating these hurdles and put you in the best position possible for a successful outcome.
The bottom line: if you have been terminated and your EDD benefits have been challenged, consult with an employment attorney regarding your options. The future may be brighter than you think.


While the EDD appeal decision itself is not admissible in any subsequent appeal of your termination, the transcript of testimony is. Anything you say (or the employer) will be recorded at the EDD appeal and can be used for impeachment purposes later. Always testify consistently with prior statements you may have given and with any statements you may make at a later time.
For additioal click here:  Information on Unemployment Benefits Following Termination
or contact our office at 916-851-1900 and ask for Jennifer.