Clarify separation agreement with confidentiality clause in terms of unemployment interview.

If I signed a separation agreement as part of a severance package that includes a confidentiality clause can I answer questions in my unemployment interview without violating the agreement and losing my severance?

I left my job because of abusive, hostile and demeaning actions taken by a supervisor that made my work environment intolerable. These actions were a retaliatory response the supervisor made after I complained about them with HR.

This supervisor then changed my job description, title, authority and responsibilities in response. Additionally directing me to change the way that I did my job, against professional advice and opposite of how this job was customarily handled in previous years.

I believe the change in requirements were intended to cause a loss of proficiency in the skills of my profession. And were done to abuse or harass me with the intent of setting me up for perceived failure damaging my professional reputation and allowing this person to have cause to fire me later.

I worked there for over a decade and had a solid reputation for doing a quality job. After this serious of incidents I worked for weeks with HR to find a peaceful resolution, including asking for a transfer and that they not support her actions. I was told a transfer was not possible. My employer offered me a separation agreement and promised to not contest unemployment. I was told that I had not done anything wrong and this was a voluntary quit.

In your experience, should I be able to qualify for unemployment under these terms?

I understand that I can't qualify without showing that I had just cause to leave an intolerable environment.

The agreement says that I can't discuss any terms of the separation or the existence of an agreement.

Would I be allowed to discuss this under the section of exceptions for "administrative proceeding?

Thank you!

1 answer  |  asked Sep 21, 2012 12:47 PM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
** No attorney-client relationship is created based on this communication. Please consult with an experienced employment attorney as soon as possible to better preserve your rights.**The following comments are for information only and must not be taken as legal advice. The Spencer Law Firm has not analyzed the details of your potential claim. The Spencer Law Firm cannot and does not give legal advice based on contacts from web sites or e-mail, or based on partial information. The Spencer Law Firm will not take any action on your behalf unless you and The Spencer Law Firm sign a legal services agreement.All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Deadlines can be as short as just a few days. For referrals, you may contact the Lawyer Referral Service of the San Diego County Bar Association at (619) 231-8585, or the county bar association for your county. Also, you can find lists of plaintiffs employment attorneys at , , and . Dear Asker:Without having the exact language of your agreement available for review, I would say yes, you are able to speak freely during your telephone appointment with California Employment Development Department (EDD). The unemployment application process takes place in an administrative agency, EDD. If there is an appeal, it is before another administrative agency - the Unemployment Insurance Appeals Board (UIAB). Additionally, if you are seeking unemployment benefits, you are required to comply with the EDD interview and to answer truthfully.I cannot give an opinion on whether you might succeed in your claim for benefits because you have not described the working conditions you found intolerable in any that lets me know what happened. A description such as "abusive" is actually a conclusion . . . whatever it is that the supervisor did, you found it "abusive." But what did the supervisor actually do?Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if he or she is: (1) out of work due to no fault of his or her own; AND (2) physically able to work; AND (3) actively seeking work; AND (4) ready to accept work. In your situation, you will have to show that you are unemployed through no fault of your own. Know that EDD will compare the statements of each party, and makes a decision based on information received. In this regard, it will be helpful for you to review the law that EDD and the UIAB relies on before your interview so you can describe your situation in terms EDD and UIAB uses . . . but ONLY if doing so is truthful.There is a lot of helpful information on the EDD web site:Home page requirements of the law (Benefit Determination Guide) Appeals Decisions (law the administrative law judges rely on) Frequently asked questions a claim for unemployment benefits your phone interview, you will receive a Notice of Determination stating if you are eligible for benefits or if they are denied. By the limited nature of the initial EDD process, it sometimes makes errors. For this reason, there is an appeals process. The Notice of Determination stating your claim was denied includes information about the appeal. You MUST file your appeal within 20 days of the date stated in that letter. Do not miss the deadline.In the appeal, make a brief statement just one or two lines long saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. Examples: “The company is wrong when it says I didn’t call in advance to report my absence. I called in and left a message on my boss’ answering machine at 7:38 a.m. saying I was in the emergency room.” “I did not voluntarily quit. My boss yelled at me in front of everyone and I was embarrassed, so I ran to the restroom until I calmed down. When I came back ten minutes later, the boss said I had walked off the job.”“I did the best I could but the company was not satisfied. My unsatisfactory performance was not intentional. I wanted to keep my job.”In a few weeks, you will receive a notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible (cell phone record showing the 7:38 a.m. call, witnesses who overheard the boss yelling, etc.).If your claim is denied, be sure to file the appeal. You can be represented by anyone at the hearing. If your appeal will be difficult or you are uncomfortable speaking, you may wish to retain an attorney to help you prepare or to represent you at the hearing. For training, expect the attorney to need approximately three hours. For representation at the hearing, expect the attorney to need three to seven hours to prepare, depending on the complexity of the case, witnesses, documents and other evidence, and allow two hours for the hearing itself. Unemployment hearings usually last one hour or less, but you must arrive early to look at the file, and there is a possibility you will have to wait past your hearing time if the previous case has not finished. Generally, as of 2012, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on years of experience, geographic location, attorney availability, attorney interest in the case, complexity of the matter, and more.To find a plaintiffs employment attorney in California, visit the California Employment Lawyers Association (CELA) at CELA is the largest and most influential bar association in the state for attorneys representing working people. You can search for attorneys by location and practice area.Good luck in your claim!____________________________________________Marilynn Mika SpencerThe Spencer Law Firm2727 Camino del Rio South, Suite 140San Diego, CA 92108(619) 233-1313 telephone // (619) 296-1313

posted by Marilynn Mika Spencer  |  Sep 21, 2012 1:13 PM [EST]  [ Best Answer - selected by asker ]

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