EDD Says You Were Overpaid? How to Appeal or Get a Waiver

Yes to both: you can appeal an EDD overpayment within 30 days of the mailing date on the notice, and EDD waives a no-fault overpayment when repaying would be unfair, for example when your family income over the past six months sits at or under its limit. EDD screens for a waiver before it bills you. If it rates the overpayment no-fault, an Application for Overpayment Waiver (DE 1446UI) comes with the first notice; if none came, the appeal is where you argue for one. Start today: if you hold a Notice of Potential Overpayment (DE 1447), answer it within 15 days and return any waiver form attached to it; if you hold a Notice of Overpayment (DE 1444) or a Notice of Denial of Benefits and Overpayment (DE 1480), put the appeal deadline on your calendar.

Which notice you have and what it asks of you

Who qualifies for a waiver

California waives an overpayment when three things are true: it came from no fraud or false statement, you were without fault, and making you repay would be against equity and good conscience.

Fault. You are without fault when you relied in good faith on an EDD error you had no reason to catch, such as a weekly benefit amount EDD set too high on your award notice. EDD counts you at fault if you under-reported earnings you knew or should have known, collected benefits from another state or workers' compensation for the same weeks without reporting the double payment, or kept a payment you should have spotted as wrong.

Equity and good conscience. Any one of these is enough:

• Low family income. EDD averages the gross monthly income of you and your spouse or registered domestic partner over the past six months, unemployment benefits included. At or under the table below, the overpayment is waived unless cash, savings or investments can repay it without hardship. Your home, furniture, a car the family needs, clothing and work tools stay off that list.
• Hardship above the table. EDD weighs unusual necessary costs such as ongoing medical bills, and waives the overpayment when they make repayment an extraordinary hardship.
• Change of position. You spent savings on everyday bills while on benefits, took on a necessary expense only because the benefits were coming, or were turned down for other aid such as CalFresh, or skipped applying, because of the unemployment income.

Once a waiver is final, EDD can reopen it only for fraud in the waiver request itself.

What to do today

1. Read the notice line by line. Write down the mailing date, the benefit year began date, each week listed, the reason, and whether it mentions a false statement, a penalty or a waived amount.
2. Answer a Notice of Potential Overpayment. Call 1-800-300-5616, or mail or fax your reply to the address on the notice, naming each week or amount that is wrong. If box B is checked, fill out every page of the DE 1446UI, including cash and account balances and monthly expenses. Sign it and return it by the date printed on the form, or call before that date for more time.
3. Appeal a Notice of Overpayment if any part is wrong. Use the Appeal Form (DE 1000M) that came with it, or a letter with your name, address, phone, Social Security number and the reason you disagree. Mail it to the return address on the notice, early, and photograph it first: the Postal Service now dates mail when it is processed rather than when you drop it off. Ask for both outcomes in one appeal, no overpayment or a waiver, because the judge hears every overpayment issue, waiver denial included. Past the deadline? File anyway and explain the delay; good cause includes mistake, inadvertence, surprise and excusable neglect.
4. Collect proof that matches EDD's reason. Gather pay stubs and employer letters for each listed week, your payment activity from UI Online, EDD's award notice if the mistake was EDD's, and six months of bank statements and bills.
5. Get ready for the hearing. Our California unemployment appeal and hearing guide covers the case file, witnesses and what happens on hearing day.

Where your case splits

• If the notice came late, appeal on timing. Without a fraud finding, state law gives EDD until one year after your benefit year closes to serve the Notice of Overpayment, or six months after a backpay award if that is later. The benefit year runs 52 weeks from the benefit year began date printed on the notice.
• If your employer's appeal created the overpayment, check who ruled and what EDD told you. Weeks paid under a judge's decision that upheld EDD's approval stay yours even if the Appeals Board later reverses. For any other reversal of an approval, you repay nothing unless EDD warned you about the employer's appeal and the chance of repaying.
• If EDD says you made a false statement, the stakes rise. A fraud finding adds a penalty of 30% of the overpayment and can disqualify you from benefits for up to 23 weeks. EDD then takes 100% of any future weekly benefit, and you pay the penalty separately. For a fraud overpayment, EDD can also get a summary judgment without suing you, then have your employer withhold up to 20% of your wages.
• If the weeks are pandemic benefits (PUA, PEUC or the FPUC add-on), contest each program. Federal law uses the same no-fault test for these programs, and the FPUC add-on gets its own waiver decision apart from the benefit it was paid with.

If you owe: what EDD collects and what you control

• Future benefits. EDD keeps 25% of each weekly unemployment, disability or Paid Family Leave payment toward a non-fraud overpayment, for up to six years after the notice.
• State money. EDD collects from state tax refunds, California Lottery winnings and unclaimed property.
• Court action. For a non-fraud overpayment, EDD has to sue within one year of the notice, or of the last appeal decision if you appealed. A court judgment lets EDD record a lien on your property, and EDD can levy a bank account.
• A payment plan sized to your budget. Log in to myEDD, open Benefit Overpayment Services and choose Set up an Installment Agreement, or call the Benefit Overpayment Collection Section at 1-800-676-5737, weekdays 8 a.m. to 5 p.m. Pacific. EDD sets the schedule from your current family income and liquid savings, and it must adjust the payment when you show a material change in your finances.
• Free legal help. Legal Aid at Work's Workers' Rights Clinic advises low-income and unemployed Californians at no cost: (415) 404-9093 or 866-864-8208 toll-free. Bring in the clinic or a lawyer before the hearing if EDD alleges a false statement or you receive court papers.

Appeal letter to copy

To: Employment Development Department, [return address on the notice]. From: [full name], Social Security number [number], [mailing address], [phone].

I appeal the Notice of Overpayment mailed [date] for $[amount], benefit year beginning [date]. I disagree because [I reported my earnings correctly each week / EDD set my weekly benefit amount and I had no way to know it was wrong / the notice came more than one year after my benefit year ended / EDD never told me my employer had appealed].

If any overpayment stands, I ask that it be waived. I was without fault, and repayment would be against equity and good conscience: my family of [number] averaged $[amount] a month in gross income over the past six months, and [I used my savings for rent and food while on benefits / I pay $(amount) a month in medical bills].

I request a hearing before an Administrative Law Judge. [I need a (language) interpreter.] [If late: I am filing after the deadline because (reason, with dates).]

[Signature] [Date]

Today

1. Mark the appeal deadline on your calendar.
2. Return the DE 1446UI or mail the DE 1000M.
3. Pull six months of pay stubs, bank statements and bills.

What comes back: EDD's answer to your waiver application. After an appeal, either EDD changes its decision or the Office of Appeals mails a letter acknowledging your appeal, then a Notice of Hearing at least 10 days before the hearing date.