Preface PR 10

Making the Determination

This section describes the interviewing process and the elements needed for a legally-supportable determination.

A. Purpose of the Determination Interview

The purpose of the determination interview is expressed in Section 1326 of the Unemployment Insurance Code, which provides:

The department shall promptly pay benefits if it finds the claimant is eligible or shall promptly deny benefits if it finds the claimant is ineligible.

Known informally as the "pay benefits when due" section, this section mandates the interviewer to make a prompt determination of eligibility when a potentially disqualifying issue is raised.

B. Issue - Defined

An issue, as it is used in the non-monetary determination process is defined as an act or circumstance, which, by virtue of State law, is potentially disqualifying.

Whenever an issue is discovered, it must be resolved. There are three outcomes to an issue resolution:

1. It is determined that there is an issue and the issue is not disqualifying. For example, the claimant quit his job to relocate with his spouse out of the area. An eligible determination is completed.
   
   
2. It is determined that there is an issue and the issue is disqualifying.

   Example 1: The claimant is not available for work and has not shown good cause for the unavailability.

   Example 2: The claimant calls and states she did not attend a personalized job service assistance (PJSA) appointment, as she did not receive the notice. If the claimant has not added or updated a resume in CalJOBS as required, there is an issue that must be resolved. The claimant will have to establish good cause for not adding or updating her resume, whether she attended the PJSA or not. The issue is not the attendance at the PJSA. If the claimant has not added or updated the resume, there is always an issue. If at the determination point, it is found that the claimant completed the resume within the required time it becomes a non-issue and staff would enter a clarification on the determination entry screen.

   Claimants are mailed more than one notice advising them of the requirement to add or update a resume in CalJOBS. Since the issue is whether or not the claimant added or updated her resume in CalJOBS as required, the claimant’s statement that she did not receive the PJSA appointment notice does not automatically give her good cause for failure to add or update a resume. However, the reason the claimant provides for not attending the PJSA may raise another issue of availability or ability that must be resolved.

   If the claimant states that she did not add or update her resume in CalJOBS, as she did not know that she was required to do so, then the issue becomes the credibility of her statement. The interviewer will decide the likelihood that all of the notices describing the requirement to register for work did not arrive by examining what happened to all the notices and checks sent to the same address. The claimant must be given the opportunity to state why she thinks that the notices did not arrive. If there is no credible reason provided, for example, the claimant did not file a notice with the US Postal Service that mail had been stolen or no other mail such as checks are missing and there is no request for replacement, the Department must assume that mail sent to the claimant was received. Good cause for failure to add or update a resume in CalJOBS would not have been shown. A disqualification would be in order.

3. It is determined that there is actually no issue.

   In other words, no potentially disqualifying act or circumstance exists. If after the interviewer has gathered and documented all the facts, there is no possibility the claimant could be disqualified for any past, present, or future benefits, then no issue exists and there is no determination to be made on the claimant’s eligibility. The facts now known do not raise a potentially disqualifying issue.

   Example 1: The claimant stated he did not seek work on a continued claim form. When the Department contacted the claimant, the claimant stated he made an error on the form and did seek work during the week in question. There is no issue.

   Example 2: At claim filing the claimant stated he was not a member of the union. He was assigned an "A" seek work plan (SWP) that required he seek work each week on his own. At the determination interview the claimant stated he was a member of a union and thus did not seek work on his own. The claimant was given a SWP by the Department that outlined the steps that must be taken to seek work. The weeks passed and the claimant did not follow these instructions. The claimant verbally received information about his SWP when he filed his claim. In addition, he subsequently received notice with the Notice of Unemployment Insurance Award (DE 429). The claimant did not call the Department before the determination and question the instructions or provide information necessary to show that he was a member of a union. If he had, the SWP would have been changed and the claimant given new reasonable and specific instructions based on the new information. The claimant would then have been required to follow those new instructions in seeking work. If he had, then there would be no issue, as he would have sought work as instructed.

   The question is whether the claimant followed reasonable and specific instructions for seeking work as required by Title 22 Section 1253(e). The answer to the question is determined by deciding whether the instructions given to the claimant were reasonable. If the claimant was a member in good standing with the union and registered as out or work, the instructions to seek work on his own were not reasonable. Regardless of the amount of work that it takes to gather and document the information, if the end result is that we identify that from the beginning of the claim there was no potential to disqualify the claimant then there is no issue and no determination to make. It was all an error. The claimant should always have been allowed to have a SWP consistent with the circumstances that existed at the time he filed his claim. Whether the claimant or the Department made the error is irrelevant, an error was made. There is no decision to be made. The facts speak for themselves and the result is a non-issue.

C. Determination - Defined

Determinations are documented decisions made by the Department either holding the claimant eligible or disqualified for benefits.

The purpose of a determination interview is to resolve issues involving a claimant’s potential eligibility for unemployment compensation and provide a record of the Department’s fact finding and judgment. A determination of eligibility must be made whenever an issue is identified.

A non-monetary determination then is a decision of eligibility made based on facts related to an issue that has the potential to affect a claimant’s past, present, or future benefit rights.

The federal definition of a valid nonmonetary determination is:

A decision made by the initial authority based on facts related to an "issue" detected:

• which had the potential to affect the claimant’s past, present, or future benefit rights; and
• for which a determination of eligibility was made.

"Future benefit rights" refers to an already existing issue that extends into the future and thus affects the claimant’s rights to future benefits. It also refers to an act or circumstance that occurred in the past but the disqualification period for the issue extends into present or future weeks.

For example: when an issue results in an indefinite disqualification (e.g., able and available, voluntary quit, misconduct, etc.), that disqualification extends into the future and consequently affects the claimant’s rights to future benefits. A disqualification for a fixed period can also affect future weeks (e.g., suitable work, wages, and deductible earnings).

D. Role of the Determinations Interviewer

Section 6 of the Unemployment Insurance Code provides the authority for the interviewer to make the determination of eligibility. Section 6 provides:

Whenever a power is granted to, or a duty imposed on any person or board by any provision of this code, it may be exercised or performed by any deputy or person authorized by the person or board to whom the power is granted or on whom the duty is imposed, unless it is expressly provided that the power or duty shall be exercised or performed only by the person or board to whom the power is granted or on whom the duty is imposed.

The integrity and credibility of the Department rest upon the interviewer’s fact finding and documentation of the determinations process. The interviewer has the responsibility for making correct and legally-supportable decisions. This includes recording all activity related to the determination interview.

E. Resources

To aid the interviewer in making correct decisions, the interviewer should have the applicable resources readily available. The need for specific resources will depend upon the type of interview and its complexity, but at a minimum, the interviewer should have:

• A current copy of the Unemployment Insurance Code: the law underlying all determinations functions.
• A current copy of the California Code of Regulations, Title 22: to apply working application of the law.
• The UI Manual: the "how" volume.
• The Benefit Determination Guides: the "why" volumes.
• Intranet access: for quick reference to Wages and Trade Dispute notices, Unemployment Insurance Program Notices, UI on-line forms, and telephone numbers for technical assistance.
• Any applicable specialty manual for the issue being determined (School Employees Handbook, Overpayment Manual, etc.).

F. The Fact-Finding Process

Once the elements of the applicable law are known (see Preface 5. D.), the interviewer must start the fact finding process to determine whether or not the claimant meets the criteria for payment of benefits or should be denied benefits; if it appears that the claimant should be subject to disqualification, whether the claimant has a defense to imposition of a disqualification; and finally, for how long the disqualification should be assessed, if applicable.

1. Determining if Elements Present

   As noted in Preface 5.D., the law outlines the elements that must be found to be present for the claimant to be eligible or disqualified. The Fact-finding Guides in the BDG take these elements into consideration in the suggested lines of questioning.

   The interviewer will already have some information available at the time of interview: an employer protest, a student questionnaire, the claimant’s statement with respect to a separation, notes on-line reflecting an issue identified at Completion, etc. This information gives the interviewer a broad picture of the issues and the areas of disagreement, but is not conclusive; verification of these bits and pieces of information is required to verify that the parties (claimant or employer) meant exactly what they said.

   Example 1: The claimant states on the initial claim form, "Quit to go back to school." The employer protest states, "Terminated because he failed to show for work." The immediate assumption may be that the claimant did, in fact, quit to return to school (because the admission is damaging to the claimant’s interests and is the more specific reason), and that the employer eventually took him off the payroll since he was not physically present to work. The assumption is both neat and logical.

   But further fact-finding might reveal that the claimant was hired as a summer replacement, with the understanding that he would leave in September to go back to school; that he left in mid-July because he wanted to surf in Hawaii for a month before returning to school; that continuing work was available had he desired to work; that he had worked until the end of September each year for the previous two years; and that he had contacted the employer when he returned from surfing in mid-August, but was no longer needed as he had been replaced.

   Neither the claimant nor the employer knows exactly what facts we are looking for: therefore, it is incumbent upon the interviewer to verify the statements made by both parties, since we cannot expect the parties to give us, voluntarily and without questioning, exactly what we need to decide eligibility.

   Example 2: The claimant reported three days late to file the initial claim, and told the Completion interviewer she was late because she didn’t have transportation for two weeks. She lives in the mountains above a small city, where she has a labor market. She told the Completion interviewer that her car is still inoperable. The Completion interviewer flags the claim accordingly, stating: "Claimant has not had transportation for two weeks, still doesn’t." (The Completion interviewer failed to ask how the claimant managed to come to the office that day.)

   Availability issues rely on the Sanchez criteria: did the claimant have a compelling reason for being unavailable for work with no alternatives to unavailability and, despite her unavailability for a compelling reason, is there a substantial field of employment remaining? There are two separate issues here: unavailability and remaining field of employment. The mere fact that the claimant has no transportation does not answer the questions raised by those two issues; conceivably, she may have a labor market in her mountain community and be able to walk to work. The interviewer cannot resolve the availability issues without contacting the claimant.

   Resolution 1: Fact-finding might reveal that the claimant was in an auto accident; that she was injured; that her doctor will not allow her to work; that all she wants to do is file an unemployment insurance claim to freeze wage credits; and that she has declared that she is not able to work on her claim forms. She returned the claim forms only because she thought she was supposed to, and nobody told her not to mail the forms if she didn’t want to claim benefits. While, on the surface, it appears that there is a transportation issue, the actual issue is health (had she had transportation, she still wouldn’t have been able to work).

   Resolution 2: On the other hand, fact-finding might reveal that the claimant’s auto had been broken into and her cellular telephone stolen; that her spouse refused to let her travel without a telephone, since they lived in the mountains; that it snowed the day she was to come to the field office, and the roads were icy; that she was a relatively inexperienced mountain driver; and that she would have gone to work if her employer had called her, despite her husband’s objections. As a matter of fact, she’d gone Christmas shopping in the city a week ago, in the snow. Had she known her Completion appointment was not "at her convenience," she could have been in the office at the appointed time. She told us she had no transportation because that was, officially, the family’s position. The real issue is not transportation, but good cause for failure to report for the Completion appointment.

2. Changing Thought Mid-Stream

   As illustrated above, the actual circumstances may be entirely different than the interviewer initially believes. In that case, the interviewer must be prepared to change thoughts (and therefore, questions) mid-stream, as dictated by how the interview is proceeding.

   In Example 1, above, which is ostensibly a quit to attend school, the interviewer should discover that the claimant did not leave the job to attend school, but left to go on vacation. The Fact-finding Guide for VQ 40, Attendance at School or Training Course, does not apply; VQ 360, Personal Affairs, is applicable.

   Example 2, above, is ostensibly an availability issue because of lack of transportation. Under the first resolution, it may develop into inability because of health reasons (AA 235); or, under the second resolution, failure to comply with reporting requirements (MI 10).

3. Clues to Watch For

   The interviewer must be aware of subtle clues from both the claimant’s language and the claimant’s tone of voice: the equivalent to clues gained from language, tone of voice, and body language if the determination were being done in-person.

   • Is the claimant hesitant, unsure of his or her statement?
   • Is the claimant becoming hostile, feeling ill-treated by anyone?
   • Are the claimant’s answers responsive to the question, or avoiding the question?
   • Are there gaps in the claimant’s story?
   • Is the claimant preoccupied with something in the home while the telephone interview is being conducted?
   • Does the claimant not want to talk about the issue, at all?

   These are obstacles that the interviewer must overcome by the use of good interviewing skills.

   Listening skills are important to develop, not only to glean all the facts, but also to glean the claimant’s interpretation of the facts. What signals is the claimant sending?

   Listening skills are also important when dealing with an employer, who may not wish to verbalize all of the reasons why he, for instance, discharged an employee.

   Understanding and empathy, or an expression of warmth in the tone of voice that expresses the interviewer’s knowledge of the foibles of human nature, is necessary to develop rapport between the interviewer and the party being interviewed, whether claimant, employer, or a third party. The interviewer should project a feeling that he or she is genuinely interested in the party being interviewed, and not merely that the interviewer is working against a deadline by which to finish the interview. People are always more important than first payment time lapse. Abrupt questions from a harried interviewer, even though properly phrased and designed to elicit the requested response, may defeat the interviewer’s objective by being regarded as confrontational.

   Nonconfrontational interviewing skills are needed to:

   • Impart a feeling of neutrality;
   • Impart a feeling of fairness (equity) to all affected parties;
   • Control the interview, but allow all parties to make a complete statement of the facts as they see them; and
   • Impart a feeling that the interviewer is not being judgmental.
4. Witnesses

   Witnesses are persons with direct, personal knowledge of the matter(s) at issue and, sometimes, their surrounding circumstances. If there are witnesses whose knowledge will assist the interviewer in the fact-finding process, the witnesses should be contacted. It is not necessary, however, to contact all witnesses that the parties want to involve:

   Example 1: (Claimant to interviewer): "I was mad as hops - just ask my wife! I told her they had no reason for firing me!

   Unless the wife was physically present at the time of discharge, the only matter that the wife can comment upon is the claimant’s anger and his feeling that he had been improperly discharged. The fact that the claimant was angry, or that he felt the employer had no grounds for discharging him, happened after the discharge and did not contribute to it; the witness’s "evidence" is therefore not relevant to the separation.

   Example 2: (Claimant to interviewer): "Yeah, I got mad - I told that foreman he could take the job and shove it, that I’d had all I could take, and then I punched him. Just ask Joe - he was standing there, saw and heard the whole thing."

   Resolution 1: The claimant has already admitted his actions. If the employer has actually discharged the claimant for striking the foreman, as verified by the employer, Joe’s statement will add nothing because he will only reiterate what the claimant has said.

   Resolution 2: If, however, the employer indicates that he discharged the claimant because the claimant was incapable of counting 400 boxes in an hour (the standard quantity), and the punching incident occurred after the foreman told the claimant that he was being terminated, the interviewer needs to verify this information with the claimant. In this case, the punching incident is not relevant to the reason the claimant was separated, and Joe need not be contacted.

   Resolution 3: If, however, the claimant had been disciplined consistently for minor infractions that he had not committed, to the point where the foreman’s discipline constituted harassment, Joe’s statement may be very relevant to what happened under stress that day. Joe could also serve as a character witness, describing the ongoing unpleasantness and the claimant’s usual and customary reaction to it, including the information that the claimant was normally a pacifist but was goaded into striking the foreman. The interviewer must first determine Joe’s degree of friendliness or animosity toward the foreman, however, to determine any bias on Joe’s part that may affect his statement.

   The value of a witness lies in corroborating one of the parties from first-hand information, not in merely repeating what one of the parties has told the witness (that is, without having first-hand information.) Corroboration of information is not always required, if both parties agree; in the event that the second party verifies the first party’s statement, that is sufficient corroboration. Independent corroboration, from a third party, however, is essential if the parties disagree and if the witness has any independent information to corroborate either’s story.

   There are circumstances, however, in which a third person’s knowledge becomes valuable even without first-hand information.

   Example 3: (Claimant to third party) : "I’m going to quit my job tomorrow; I can’t stand doing this another day." The claimant fails to show for work the following day, and the third party comes to the conclusion that the claimant has, in fact, quit as she said she was going to do. The third party tells the employer, "She said she was going to quit today." The employer holds the job open for several days, and then writes the claimant off as a quit, based on circumstantial evidence given by the third party. In actuality, no one (at this point) knows why the claimant failed to show for work; she may have quit, she may have been injured or ill, or there may have been an emergency elsewhere.

   The claimant has, however, expressed a present intent to do a future act (to quit "tomorrow") and that expression of intent to do a future act, in the absence of any other information, is sufficient to establish a presumption that the claimant has acted on that intent, and has quit. The presumption is rebuttable (see G., below). CAUTION, however: the "present intent" must not be remote in time from the alleged act; "I’m going to quit next year" is not sufficiently related in time to the act of quitting.

   Example 4: (Claimant to interviewer): "I didn’t accept the offered job because I’m pregnant and I believe working under fluorescent lights will damage the baby." The interviewer calls the claimant’s doctor to determine whether working under fluorescent lights would injure either the claimant or the baby. The doctor reports that the claimant is in excellent health, and working would be the best thing in the world for her because she is inclined to worry; fluorescent lights have not been found to be detrimental in pregnancies, and the pregnancy is progressing normally.

   The doctor, who knows the claimant’s physical condition, is in a position to speak from first-hand knowledge of her health and potential risks to it; as such, he is an "expert" and his information may be used in the interview, even if he wasn’t aware that she had refused a job.

   In contrast to that situation, however: if the claimant had said that her mother had read a story in "America’s Weirdest People" and the mother had advised her not to accept the job because of the fluorescent lights, that opinion would not be considered "expert."

   An "expert opinion" is one that is:

   • Related to a subject sufficiently removed from common knowledge that the opinion is helpful in making a decision; and
   • Based on matter personally known to the expert, such as special knowledge, skill, experience, training, and education.

   An "expert opinion" does not have to be from a person holding a professional degree, such as a medical doctor; an "expert" is defined as one having specialized knowledge or expertise acquired from practical experience, and on which others may safely rely. This classification may include such persons as garage mechanics, television repairmen, brick masons, plumbers, and electricians, as well as the "professional" occupations.

   Example 5: The claimant fell off the roof while cleaning rain gutters. A plumber, who was there to fix the hot water heater, supplies the following: "He got up and hopped around right after he fell. When he yelled I sort of helped him up, but I’m sure he could work." The doctor has certified that the claimant cannot work. The doctor’s statement is the more compelling because the doctor has the expertise in medical matters.

   Example 6: The claimant asks his dentist what the dentist thinks it generally costs to fix automobile water pumps; the dentist gives him a round figure. Based on that figure, the claimant knows that he cannot pay for repairs right now. He subsequently learns that the dentist’s estimate of cost was double the actual cost, and that he could have afforded to fix his car considerably earlier than he did. The claimant’s statement of actual cost is considerably more compelling than the dentist’s estimate of cost, as the dentist’s field of expertise is not in auto repair.

   NOTE, however: A hobby can also qualify a person as an expert in that field if the person’s knowledge and expertise is such that others rely on him or her.

5. Employer Records

   Employer records may be used, even though the person reading from them has no first-hand knowledge, if:

   • The writing was made in the regular course of a business;
   • The writing was made at or near the time of the act or event;
   • Someone is available to verify what the record is, and how it was made: and
   • The sources of the information, and method and time of preparation, indicate the record is trustworthy. (Paraphrase of Evidence Code section 1271.)

   It is not necessary to question the employer concerning the making of the record; most personnel records qualify automatically for our purposes. The making of the record only becomes important if the claimant challenges its content or the knowledge of the person entering the information into it.

   Written warnings and letters of reprimand may be especially important to the field office interviewer, as they may establish a pattern of conduct that resulted in a separation. Time cards, leave requests, grievances filed, and regular employee evaluation reports may also be relevant to the issue. The interviewer will not have the original of the document, but a photocopy or a fax. These are acceptable for our purposes.

   If the employer has no record of an event, absence of a record, when it is the employer’s policy to make such a record, may be an indication that the event did not happen. (Paraphrase of Evidence Code section 1272.)

   Example: (Claimant to interviewer) : "I had to miss work on a Tuesday. I called in before my start-time, as we’re supposed to do, and talked to the Personnel Department. No, I don’t remember which person I talked to - they all take messages."

   Resolution 1: The employer has a procedure in place to record absences. That particular day a new employee was being trained on the switchboard, and the trainer, an experienced personnel clerk, was meticulous in training each step of the procedure. There is no record of the call; there is a presumption that the call was not made.

   Resolution 2: The employer records all call-ins on yellow stickies, which are then affixed to a Formica board. Occasionally some fall off, and the janitor sweeps them up about noon. The employer has missed some critical dates in the past because the yellow "stickies" were missing. There is no record of the call from the claimant; a presumption that the call was not made is not reasonable, under these circumstances.

   Resolution 3: The employer has a procedure in place which is followed meticulously. The claimant did not actually speak to the Personnel Department, but to the watchman; no one had yet appeared in the Personnel Office. This situation most nearly approximates what the interviewer will find in disputed call-in cases: the call was allegedly made, but to the wrong person, at the wrong time, and the message was not relayed to the proper person(s). The interviewer will have to determine, on a case-by-case basis, what procedures are in place for call-ins if the claimant is unable to reach the proper person, and whether the established procedures were followed.

6. Other Records

   It may develop that the decision will turn on one small point - did someone call in? Was someone sick? Was someone at fault in an accident? Has the car been fixed (if it’s the only transportation)? Has childcare been found? What days did the claimant actually work? Records, made at the time of the incident or shortly thereafter, may prove to be valuable.

   "Other records" include all written records except employer records: telephone bills (to prove a call was made, but generally only available if the call was made beyond the toll-free distance from the claimant’s home), doctor bills or notes (to prove either illness or health, depending upon the circumstances), OSHA reports (if health and safety involved), auto repair bills (to show repairs made), police reports (to show fault, theft, etc.), home calendars posted on a daily basis (number of hours worked, times worked), etc. To prove a writing, the original should be submitted unless it is in someone else’s possession (e.g., Disability Insurance or the employer) and cannot be obtained, or has been subsequently computerized (e.g., payroll records), or has been lost or destroyed with no fault on the part of the person submitting it. (Paraphrase of Evidence Code sections 1500, 1500.5, 1501, 1503.)

7. Opinions, Feelings and Conclusions

   Any party to a determination interview - the claimant, the employer, or a third party - may express himself or herself in opinions and feelings and offer those opinions and feelings, and the conclusions drawn from them, to prove a point. While opinions and feelings are not generally trustworthy, opinions arise from situations where it is nearly impossible to describe the matter in any other way. The opinion must, however, be based on what the person saw or heard, and is only relevant if it helps to make his statement(s) clearer. Such opinions include:

   • Matters of taste and smell: "It smelled like gunpowder."
   • Another’s emotions : "He seemed nervous."
   • Vehicular speed: "He was going very, very fast."
   • Voice identification: "I’ve known Clyde Bushmat for fifteen years and I’d recognize his voice anywhere. It was Bushmat’s voice on the telephone."
   • Intent, when relevant: "I was planning to cross the street."
   • Genuineness of another’s handwriting: "That’s my husband’s signature.
   • Another’s irrational conduct: "He was acting like a crazy man.
   • Intoxication: "The man was drunk."

   BUT NOT:

   • Opinions on ultimate issues: "In my opinion, the claimant quit without good cause."

G. Who Has to Prove What?

Once the interviewer has the facts, the next question is, who has to prove what? What are the rules under which we operate? How do we know when we’ve accumulated enough information to make a decision? What if we can’t get any information from any source, despite repeated attempts?

1. The Burden of Proof

   There are two burdens of proof to be considered in a determination interview:

   • Who has the burden of proving the facts (the burden of producing evidence)?
   • Who has the burden of persuasion (has the fact been proven by a preponderance of the evidence)?

   Taken together, both are called "burden of proof."

   Evidence Code section 500 provides:

   Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.

   The burden of proof is treated differently in criminal and civil cases. To illustrate:

   Criminal actions

   Criminal actions have entirely different rules than do civil or administrative actions, and those rules are generally better known to television watchers than are the rules for civil actions. The rules for criminal actions are included here only for comparison Purposes.

   Role of the prosecution: A defendant in a criminal action is always entitled to have the case against him proved; he is entitled to the presumption of innocence until such time as he is proven guilty. The burden of proof is upon the prosecution. If the prosecutor is unable to prove the case beyond a reasonable doubt, for instance, the claimant is found not guilty because the prosecution has not sustained its burden of proof - either in failing to produce sufficient evidence to be convincing, or in failing to persuade the court or the jury that the evidence produced is sufficient to convict the defendant. The defendant’s failure to participate during the prosecution’s case, as in failing to testify, is never a fact that may be used against the defendant; it is the prosecution’s job to prove their case to the requisite standard of proof, and not the defendant’s job to prove that he or she is not guilty.

   Role of the defendant: The defendant may or may not wish to offer a defense to the act for which he is charged. But if the evidence is overwhelmingly in favor of the prosecution even after the defendant’s rebuttal, the defendant may, if he wishes, exercise his right to use a legal defense (e.g., that he should be found not guilty: not because he didn’t commit the act, but for reasons which provide a defense, such as under legal age, incapacity, or insanity; that he did exercise due care, etc.). It is the defendant’s burden of proof to establish his defense, both in producing evidence and in the burden of persuasion that the prosecution did not prove its case. If the court or the jury does not agree that the defendant is not guilty by reason of (whatever defense is used), the defendant will be convicted because he has failed to sustain his burden of proof.

   Role of the judge or jury: The judge (in a bench trial) or the jury (in a jury trial) must evaluate and sift the facts developed by both the prosecution and the defense, to arrive at a conclusion supported by law. The judge or the jury must start the trial by bearing in mind the presumption of innocence for the defendant, and the case against the defendant must be proven by one of three kinds of proof, depending upon the action: by preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.

   Civil and administrative actions

   The civil action, which includes administrative actions such as determinations interviews, is not governed by the same rules as criminal cases.

   Role of the Department: The Department interviewer is a fact finder, serving a comparable role to both that of the prosecution and of the defense, and at the same time. But where a criminal action is adversarial, the administrative process is not; there is no "prosecutor" and no "defense" that exist separately of each other.

   The Department must question, sift, and evaluate, while being, at the same time, both neutral and impartial. This is also the role of the ALJ and the Board.

   The "Shifting" Burden of Proof: The burden of proof is allocated by statute. That burden of proof may, however, be a "shifting" one. In availability issues, the burden is initially placed on the claimant to show that he or she had a compelling reason for his or her unavailability, and a defense to a potential disqualification - that there was no reasonable alternative by which the claimant could have become available. Once the claimant establishes 1) a compelling reason, and 2) no reasonable alternatives to being unavailable, the burden of proof shifts to the Department who must, before issuing a disqualification, show that there was no substantial field of employment remaining. If the claimant cannot establish a compelling reason for unavailability or that he or she had no reasonable alternatives to being unavailable for work, the claimant has failed to sustain the burden of proof and the interviewer need go no further. NOTE: In practice, however, it is generally better for the interviewer to examine the claimant’s remaining labor market in the event that the claimant files an appeal.

   Example 1: The claimant states that he could not have worked for three days the preceding week because he had to take a parent to the doctor on a daily basis. The claimant’s spouse was not working, however, and could have taken the parent. The claimant therefore had a "reasonable alternative" which he could have exercised to make himself available for work, and he has not sustained his burden of proof. He is ineligible for benefits. Whether there is a substantial field of employment remaining is immaterial.

   Example 2: The claimant states that he took the parent for medical treatment on three days of the preceding week but, if work had been offered, the spouse would have supplied the transportation and the claimant would have worked. There was no compelling reason for taking the parent to the doctor; he did so only because he was not working. There is no availability issue.

   Example 3: The claimant states that he took the parent to the doctor for tests on three days of the preceding week and could not have worked. The parent was capable of driving himself, but the claimant was extremely anxious over the parent’s health and wanted to be present for the tests. The claimant had no compelling reason for being unavailable for work, and therefore has not met his burden of proof on that issue. Benefits are denied.

2. Presumptions

   To assist the interviewer in the fact-finding process, the law has built in presumptions, defined as assumptions of fact that the law requires to be made from another fact or group of facts that have been found or established. (Evidence Code section 600.) Presumptions may be either conclusive or rebuttable.

   Conclusive presumptions may not be rebutted. Among them is:

   • Estoppel: Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not . . . permitted to contradict it. (Evidence Code section 623.)

   Rebuttable presumptions are used regularly in the determinations process; most of these presumptions affect the burden of persuasion. Among the rebuttable presumptions are:

   • Dating of material: A writing is presumed to have been truly dated. (Evidence Code section 640.)
   • Mail: A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail. (Evidence Code section 641.)
   • Marriage: A ceremonial marriage is presumed to be valid. (Evidence Code section 663.)
   • Official duty: It is presumed that official duty has been regularly performed. (Evidence Code section 664.)
   • Results of acts: A person is presumed to intend the ordinary consequences of his voluntary act. (Evidence Code section 665.)
   • Unlawful intent: An unlawful intent is presumed from the doing of an unlawful act (civil actions only; does not apply to criminal acts.) (Evidence Code section 668.)

   The presumption may be rebutted by information from the party against whom the presumption is being applied. For our purposes, once the presumption is rebutted, it ceased to exist and can never again be revived with respect to that particular issue. The presumption will be reinstated during the independent review process by the ALJ, the Board, or the court, however, as held in O’Connell v. California Unemployment Insurance Appeals Board, a 1983 appellate court case that turned on the application of a presumption. The reinstatement of the presumption, when the fact-finding begins all over again, will not concern the determinations interviewer, however.

   There are specific rebuttable presumptions contained in the Unemployment Insurance Code Section 1256 provides:

   An individual is presumed to have been discharged for reasons other than misconduct in connection with his or her work and not to have voluntarily left his or her work without good cause unless his or her employer has given written notice to the contrary to the Department . . .

   In Perales v. California Department of Human Resources Development, a 1973 appellate court case, the court held that the presumption in section 1256, quoted above, does not mean that the presumption becomes conclusive if the time period for submitting a protest has passed; the presumption still remains rebuttable even in the absence of any employer protest. The court further pointed out that the statute, itself, did not declare the presumption to be conclusive. Construed with Sections 1327 and 1328, which provide that any facts submitted by the employer shall be considered in the determination of eligibility, the determination of eligibility is to be made on the merits of the claimant’s application rather than the employer’s failure to lodge a protest within a particular timeframe.

   In summary, the court stated that to overcome the presumption, the employer or the department must prove by a preponderance of the evidence that the claimant quit without good cause or was discharged for misconduct in connection with the work.

   But in Morrison v. California Unemployment Insurance Appeals Board, a 1976 appellate court case, the court held that the claimant who quits his or her most recent work has the burden of establishing the existence of facts which constitute good cause to leave the employment.

   Practically, the Department has considered this presumption to mean that the employer must establish by a preponderance of the evidence that the discharge was for cause; the claimant must establish by a preponderance of the evidence that his or her quit was for a real, substantial, and compelling reason, and therefore with good cause.

3. "Preponderance of the Evidence" Requirement

   "Preponderance of the evidence" means such evidence that, as when weighed against the evidence opposed to it, has the more convincing force and the greater probability of truth. "More convincing force" and "greater probability of truth" mean merely that the facts indicate something is more likely than not, a mere tipping of the scales. "Preponderance of the evidence" is the evidentiary standard by which eligibility for unemployment insurance is measured.

H. Weighing the Facts

It is not always easy to determine when the interviewer has sufficient facts to make a supportable determination as, in theory, there are always more facts to be gathered. Practical time constraints mean that the interviewer must sketch out the picture, rather than attempt to fill in the colors. Long, off-the-subject dissertations by either the claimant or the employer, and that do not contribute to the decision-making process, are an attempt to fill in the colors. Listening to the claimant or employer becomes important, as the claimant or employer who rambles must be guided back to the subject. Listening may also reveal biases or prejudices that may affect either the person’s perception or actions, or may mean that the person has relied on unreasonable interpretations of these in coming to a conclusion. (See also, the discussion of reasons and inferences in BDG Volume Voluntary Quit, VQ 135.)

1. Sufficient Facts to Make a Decision

   Once a picture has evolved in the interviewer’s mind concerning the events that transpired that are at issue, the interviewer may have enough facts to make a decision. To verify that the picture is complete, the interviewer should "mirror back" the facts to the employer and the claimant, asking if the facts that the interviewer has developed are substantially correct and if there is anything else to be added. All of the facts should be relevant to the decision making process; extraneous information should be eliminated as nonproductive and time-consuming, even if it may be described as "interesting." At this point, the interviewer has sufficient material to make a reasoned decision.

2. Insufficient Facts to Make a Decision

   Ideally, the interviewer will be able to sketch out a complete picture. There are times, however, when only half the picture develops: either the employer’s side or the claimant’s side is lacking, or short, on detail.

   In this situation, knowing who has he burden of proof becomes extremely important. Is there a presumption of eligibility or ineligibility for the claimant? Has the employer or the claimant (or whoever represents the "other side," if there is another side), sustained his or her burden of proof, if the burden of proof is on that party?

   In each of the examples below, assume the claim is monetarily valid and the claimant has certified for benefits.

   Example 1, Separation (cannot reach claimant): The claimant indicated on the initial claim forms that she was laid off for lack of work. The employer returns the claim forms, indicating, "Claimant quit because she couldn’t get along with Sally." When asked by the interviewer, the employer explains that the claimant and Sally became involved in an argument on the last day of work, and the supervisor said, "If you can’t get along, one of you will have to leave." The claimant left immediately.

   The claimant could not be reached after several attempts to call, followed by a written request for further information.

   The burden of proof is on the claimant to show that the leaving was with good cause. The employer has indicated that the layoff, lack of work, was not the reason for separation, and has given credible information (see 3., below) that the claimant quit without good cause. The claimant has not sustained her burden of proof by a preponderance of the evidence, and will be denied benefits. (A redetermination may be made if new facts are developed later.)

   Example 2, Separation (cannot reach employer): The claimant indicates layoff, lack of work, on the initial claim forms. The employer’s agent responds with the information, "Claimant quit because she couldn’t get along with Sally." When asked by the interviewer, the claimant explains that she didn’t get along with Sally, but that her supervisor had said, "We’re going to have to cut back, Claimant, and I’m going to have to let you go."

   The employer’s agent had no further information, and the employer said gruffly, "Talk to my agent, I’m busy," and hung up.

   In the absence of any credible information to the contrary, the claimant has sustained her burden of proof by a preponderance of the evidence that the leaving was a layoff for lack of work. (A redetermination may be made if new facts are developed later.)

3. Credibility

   Every interviewer has been told, at one time or another, a "fact" that makes the interviewer want to say, "Awww - c’mon!" or its equivalent. That "fact" is, quite plainly, not worthy of belief. But how do we know when information we’re given is worthy of belief?

   The Evidence Code, section 780, provides guidelines for determining credibility. The reliability of the claimant’s, employer’s, or third party’s statements will be gauged by the guidelines. The guidelines are:

   1. His demeanor while testifying and the manner in which he testifies (in each case that "testify" or "testimony" is used, substitute "tells his story")
   2. The character of his testimony. (Is it based on opinion? Firsthand knowledge? Prejudice or bias? Speculative conclusions?)
   3. The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. (But remember - the claimant may not know exactly what we want to know, and therefore cannot communicate what we want to know until we ask.)
   4. The extent of his opportunity to perceive any matter about which he testifies. (Was he there?)
   5. His character for honesty or veracity or their opposites. (A prior false statement disqualification will diminish his veracity, or "believableness.")
   6. The existence or nonexistence of a bias, interest, or other motive. (Whose side is he on?)
   7. A statement previously made by him that is consistent with his testimony . . . (Is he telling the same story this time?)
   8. A statement made by him that is inconsistent with any part of his testimony . . . (Has he changed his story at all?)
   9. The existence or nonexistence of any fact testified to by him. (Did he contend, e.g., that he was at work, when in fact he was hospitalized?)
   10. His attitude toward the action in which he testifies or toward the giving of testimony. (Is he obviously squirming? Hostile? etc.)
   11. His admission of untruthfulness. (There is a difference in presenting facts "in their best light," and untruthfulness. Has he/she admitted to adding a gloss to the facts? Does that gloss distort the sketch so that a different picture emerges? What reason does he give for embroidering the facts?)

I. Making a Decision

Once the facts are developed to the point where the interviewer has a clear picture of what probably transpired, the interviewer must then make a decision as to the claimant’s eligibility. The interviewer makes the decision by:

• Determining who has the burden of proof (see G., above);
• Weighing the facts on either side;
• Evaluating whether the party with the burden of proof has proven his/her contention by a preponderance of the evidence.

Weighing the Facts

Imagine the Scales of Justice with both sides equally weighted. Does the claimant’s evidence carry more weight than the employer’s? Does the employer’s carry more weight? Or, if there is no employer involved, does the claimant’s evidence carry more weight than the third party’s?

Example 1, Voluntary Quit: The claimant was separated from the employment. The interviewer determines that the separation was a voluntary quit. The only issue remaining to be determined is whether the leaving was with good cause. (The interviewer’s questions to elicit the following information are eliminated for the sake of time and space.)

Claimant: I had no choice; my transportation failed.

Employer: Our place of business is on a bus line.

Claimant: I don’t live on a bus line.

Employer: Others in the claimant’s neighborhood take the bus; he could have, too.

Claimant: I don’t know anyone in my neighborhood who works for (the employer. )

Employer: We have an employee bulletin board, where employees can advertise for transportation; we also have bus schedules in the Personnel Office.

Claimant: Nobody told me they had bus schedules; when I asked my supervisor, she didn’t say anything about my quitting except "OK."

Employer: He didn’t tell the supervisor that he had transportation problems; if he had, the supervisor would have told him to check the bulletin board to see if anyone were offering rides. I can’t remember if there were any offers when he left.

Claimant: I’ve seen the bulletin board, but not paid much attention to it. But I’ve never seen any ads for people wanting riders.

Employer: He could have taken his vacation to work out his travel arrangements, or an informal leave of absence.

Claimant: I was so discouraged when my car gave out that I could only think that I couldn’t get to work, and would end up losing my job. Yes, I was afraid they’d fire me; I’d been warned because I’d missed other days because of transportation problems.

Burden of Proof: The issue is that of voluntary quit; the burden of proof is upon the claimant to establish that he had a real, substantial, and compelling reason for leaving work, and that there were no reasonable alternatives short of quitting the job.

• The employer’s evidence: The employer has established that the business is on a bus line, that others in the claimant’s neighborhood take the bus, that there is an employees’ bulletin board with ride share information, and that bus schedules are available in Personnel. Is the employer’s information credible? Yes. The claimant has not refuted any of the above information and there is no reason to doubt the employer’s word.

Further employer evidence: The claimant could have taken his vacation, or a leave, to work out his travel arrangements.

Is this employer information credible? Perhaps, perhaps not. The claimant indicates that he had been warned about missing work, and the employer was adamant on the availability of a city bus. Therefore, these statements holding out the possibility of time off to work out travel may be inconsistent with the employer’s earlier statements concerning the bus. The employer also has a built-in bias (chargeability).

• The claimant’s evidence: The claimant states he doesn’t live on a bus line, doesn’t know anyone in his neighborhood who works for the employer, knew there was a bulletin board but hadn’t checked it, and didn’t tell the supervisor he had transportation problems.

Is the claimant’s evidence credible? The claimant has exhibited an obvious disinterest in the bus and ride sharing; his attitude is negative. As negative as he may be, however, the evidence is not innately unbelievable.

Further claimant evidence: The claimant thought he’d lose his job, and had previously been warned about attendance problems for the same reason. He was discouraged because he thought he’d be fired.

Is this information credible? Yes; while it is in direct conflict with the employer’s statement concerning the possibility of time off to solve the transportation problem, the concerns were probably real (because verifiable.)

Resolution: The information that is in direct conflict affects whether or not the claimant could have time off to solve the transportation difficulties. The employer indicates "yes;" the claimant doubts it as he had been previously warned. The claimant has agreed that he has quit in anticipation of discharge; it is immaterial whether his fear is based on fact, or not. In the claimant’s mind, the possibility of discharge is very real. In applying the regulations to this problem, the interviewer consults Title 22, section 1256-3(c), Duty to Preserve the Employment Relationship, and Section 1256-l(d), Moving Party. By not investigating the alternative possibilities for transportation and by quitting in anticipation of discharge, the claimant has not sustained the burden of proof that his leaving was with good cause.

Example 2, Suitable Work: Clara Claimant is referred to the ABC Company for a job as a cashier. The job pays minimum wage and the hours are 10 a.m. to 6 p.m., four days a week. The claimant reports that she was not offered work during the week, and that there was no reason she could not have accepted full-time work. Job Service advises UI that the claimant precluded an offer of work by taking three small children to the job interview, according to the employer.

Claimant: Yes, Job Service referred me to the ABC Company. When I went there, they said they had no openings. No, I didn’t take my children with me; I left them with my mother. She always takes care of my children when I’m looking for work. I remember that day specifically because Little Sally was bitten by the neighbor’s dog. I shudder every time I drive by the ABC Company, because if I hadn’t had a job interview, I wouldn’t have left the children with my mother; if I hadn’t left them with my mother, Little Sally wouldn’t have been bitten. Took six stitches to close, too. Luckily, the dog had had rabies shots. I vaguely remember, though, that one of the others being interviewed was talking about a woman with three horrible children, who left just before I got there. You don’t suppose the employer was confused about us? Got us mixed up? The employer told me I wasn’t hired because I wasn’t a minimum of 170 pounds, required by their insurance company before lifting 100-pound boxes.

Employer: Well, maybe it wasn’t Clara Claimant; my receptionist came in with Clara Claimant’s application, and she was shuddering; she said, "You can’t believe the children in the waiting room!" I guess maybe I just assumed they were Clara Claimant’s children she was talking about. Yes, come to think of it, she’d bring in five or six applications at one time for me to review between groups of interviews. It’s very possible it isn’t Clara Claimant I meant. The job? Well, we call it cashiering, but it’s actually working in a warehouse marking stock. We start all our new employees with stock work, so they’ll get used to the pricing. Takes a big, strapping person to do that, at least 170 pounds. Say, your Clara Claimant wasn’t that little bitty thing who came in? Weighed in at about 98? By golly, I think that’s it! That’s why I put a "No" on her application!

There are two issues here: was the work suitable, and if suitable, did the claimant preclude an offer of work?

The claimant’s evidence: She didn’t take her children with her; she left them at her mother’s.

Is this information credible? While the dog bite story sounds as if it’s completely unrelated, and therefore immaterial, to the job interview, it s evidence that Clara did not take her children on the interview, one of the basic facts in dispute. The dog bite not only establishes the date of the interview, but fixes the date in her mind because of the event that occurred to her child. Her capacity to recollect makes her story credible.

Further claimant evidence: Clara Claimant states she was not hired because there was a 170-pound minimum weight restriction on the job offer.

Is this information credible? Perhaps, perhaps not; Job Service was apparently unaware of the weight restriction. Clara Claimant’s statement is not consistent with the job order, but is verifiable. (The interviewer should also determine her actual weight.)

The employer’s evidence: (He doesn’t really remember Clara Claimant except by description.)

Is the employer’s evidence credible? He previously told Job Service that Clara had brought the children to the interview; subsequently, it appears he has no real recollection of her. His statements to Job Service are suspect because of his inability to recollect.

Further employer evidence: The job requires a minimum weight of 170 pounds; the job could be characterized as warehouse work rather than cashiering .

Is the employer information credible? Yes; he admits that they call the job "cashiering" (the information on the Job Service order), but admits that the title is misleading. He can describe the job duties and required physical stamina to handle them. His statement is credible because of the character of his testimony (first-hand information about his own business.)

Resolution: Since the job apparently entailed a physical strength and weight which Clara Claimant could not meet, the job was not suitable for her. (See BDG Volume Suitable Work.) The burden of proof is upon the Department to prove that the work was suitable; only then does the burden shift to the claimant to show a real, substantial, and compelling reason for refusal. Since the work was not suitable in the first place, the Department has not sustained its burden of proof that the job was suitable, and any preclusion was therefore potentially disqualifying.

The issue of preclusion of offer of work is moot, since the job was not suitable; the dog bite and the children are also immaterial to the resolution of the issue, although they would have been material if the job had been determined to be suitable.

Example 3, Availability: Carl Claimant indicated on his claim form that he could not work three days because his wife was at the hospital having their first child. He felt it was his place to be beside her.

The claimant’s statement: Well, you see - she was having a rough time, this being her first child and all. She wanted me there; moral support, you know. No, I didn’t take part in any Lamaze classes; that stuff makes me squeamish. But the least I could do was sit in the waiting room! And afterwards, she wanted me near to help her make the telephone calls to relatives, and to get used to holding a baby. She did just fine - came through the ordeal like a trooper. Her mother has been with us the whole time. too.

The burden of proof is on Carl Claimant to demonstrate a real, substantial, and compelling reason for his unavailability. If the wife’s condition was normal, as indicated here, he has not demonstrated a compelling reason for being unavailable on two of the three days, the day of birth excluded; if the wife’s condition was abnormal, which is not established here, he may have demonstrated a compelling reason for unavailability.

The claimant’s credibility: There is no reason to doubt any of his statements. He can perceive, recollect, and communicate, and there are no inconsistencies.

Resolution: From the facts given here, Carl was not available for work for two days for non compelling, personal reasons. Therefore, the Department’s burden of demonstrating the lack of a substantial field of employment remaining does not arise.

These, then, are the steps to be taken by the interviewer:

1. Determine the issue (quit, discharge, suitable work, availability, etc. If there is more than one issue, take the separate issues one at a time.)
2. Determine the elements of the issue that are in dispute (e.g., is there a dispute as to whether it was a quit, discharge, refusal of suitable work, etc., in the first place? Does the dispute involve one of the elements only?)
3. Determine who was the moving party and who has the burden of proof for the issue identified.
4. Determine if there is any defense to a disqualification (e.g., if there was a quit, was it "with good cause" as we define good cause? If a discharge, was it for reasons that do not constitute misconduct? If a job refusal or availability issue, was the claimant’s reason "real, substantial, and compelling"? But, in the latter, remember the "shifting burden of proof"! See 6., below.)
5. Assemble the facts as propounded by the parties weigh the credibility of the relevant facts developed (which party is the more believable after all the statements are considered?)
6. Decide whether the weight of the evidence supports the party who has the burden of proof, or the other side. Rules of law:
   • Decision, Eligible: If the burden of proof is on the Department or the employer, and that burden of proof is not satisfied as discussed above, the claimant is eligible.
   • Decision, Disqualified: If the burden of proof is on the claimant, and the claimant does not satisfy the burden of proof as discussed above, the claimant is disqualified.
   • "Shifting" burden of proof: For availability issues under Section 1253(c), the burden is initially upon the claimant to establish a "real, substantial, and compelling" reason for doing or not doing what is required of the cause of the availability issue (e.g., has a compelling reason for being unavailable for a day or more, for job refusal, for missing an appointment, etc.); if the claimant meets that burden, the claimant is considered eligible unless the Department can sustain the second part of the requirement, which is its burden of proof: that no "substantial field of employment" remains. If the Department cannot establish that no substantial field of employment remains, the claimant is eligible.