Case Study: Board Appeal

The First Appeal

Our client filed for unemployment benefits and was denied due to having been fired from his job, a retail store, after having been suspected of stealing gift cards. The client denied ever stealing anything. At the appeal hearing the employer appeared and forcefully made the argument that our client did engage in misconduct. During our cross examination of the employer we methodically broke down the reasons the employer believed our client engaged in the alleged act of stealing. After a long and contentious cross-examination, we were able to establish the employer's allegation were only based on weak evidence.

Despite our showing the employer's allegations were based on weak evidence, the judge initially sided with the employer and found that the most likely explanation was that our client stole the gift cards. The judge held: "The claimant breached an important duty or obligation owed to the employer that was wanton and willful in character, and that tended to injure the employer. The claimant's [explanations] strain the laws of probability. Occam's razor, which essentially states that the simpler solutions are more likeely to be correct than complex ones, seems to be a more fitting explanation than those proffered by the claimant."

The burden of proof is by "weight of evidence" which, simply stated, means that the evidence on one side is greater than on the other. For a discussion on this concept, see P-R-190. If the employer cannot show by weight of evidence that the claimant was discharged for misconduct, the claimant will be found eligible. Here, the judge disregarded the weight of the evidence and based his decision on too heavily relying on the employer's weak evidence on the one hand, and inappropriately dismissing our client's explanations on the other hand.

The Board Appeal

Our firm file an appeal with the Appeals Board to challenge the judge's decision. Our argument was that since the employer bears the burden of proof, it must provide stronger evidence to establish our client engaged in an act of misconduct. Further, we argued that our client's sworn testimony outweighs the employer's evidence, which made them unable to meet their burden of proof. The Appeals Board held in its decision: "except as otherwise provided by law, the burden of proof requries proof by preponderance of the evidence (Evidence Code section 115). The preponderance of the evidence simply requires that a matter in question is more likely to be true than not true. If weaker less satisfactory evidence is offered when it was within the power of the party to produce stronger more satisfactory information, the evidence offered should be viewed with distrust."


Ultimately, the Appeals Board sided with our position and reversed the judge's denial. "In this case, the employer failed to meet its burden of proving it discharged the claimant for misconduct connected with his most recent work."