Applying for Unemployment Benefits? Beware of Allegations of Misconduct
While companies continue to downsize their workforce in order to cut costs, they may try to avoid being hit with the additional expenses associated with layoffs. This includes payment of wages, overtime, and accrued vacation days as well as expensive severance packages. No doubt there is a similar incentive for employers to dodge the payment of unemployment benefits. The key for employees is know their rights and recognize when it is appropriate to appeal a denial.
(1) Completely unemployed or working less than full-time,
(2) Ready and looking for work,
(3) Have worked within the last 18 months
One exception is if the employee has been “discharged for misconduct connected with his or her most recent work.” (Unemployment Insurance Code, Section 1256) The Employment Development Department (EDD), not the employer, determines what behavior rises to the level of misconduct. As defined by the California Court of Appeals, misconduct is “a substantial breach by the claimant of an important duty or obligation owed to the employer, willful or wanton in character, and tending to injure the employer.” (Maywood Glass Co. v. Stewart (1959) 170 Cal.App.2d 719) Examples of misconduct include the sale of drugs on the employer’s premises, theft of company property, and assault of other employees. On the other hand, many legitimate reasons for termination such as tardiness, poor work performance, and ordinary negligence are not misconduct. If misconduct is established, it must also be the direct and proximate cause of the employee’s termination. (Precedent Decision P-B-192). The employer bears the burden of proof in cases involving misconduct. (Prescod v. California Unemployment Insurance Appeals Board (1976) 57 Cal.App.3d 29)
Because disqualification under section 1256 is fact-specific and largely subjective,
it is often misunderstood by employees and taken advantage of by employers. Companies may attempt to avoid payment by camouflaging a financially induced layoff as a case of wrongdoing or “misconduct” on the part of the employee. Employees should be particularly aware of claims of misconduct based on violation of company policy because there is the added element of “reasonableness.” According to Labor Code, Section 2856,
An employee shall substantially comply with all the directions of his or
her employer concerning the service on which he or she is engaged, except
where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.
“Disobedience of a lawful and reasonable instruction of the employer, related to the employer’s business, is misconduct.” (Precedent Decision P-B-190) The reasonableness requirement was addressed in Precedent Decision P-B-183. In that case, the employer demanded that the claimant stop discussing the possibility of opening his own business. The claimant refused and was discharged. The Appeals Board held that the employer’s demands were unreasonable as there was no evidence the claimant’s discussions disturbed the employer’s business; accordingly, the claimant’s actions did not constitute misconduct.
If you believe you are entitled to unemployment benefits, do not assume that an initial denial or contest by your employer is the final word. The time to appeal a decision of an administrative law judge is usually only a few days; therefore, it is in your best interest to contact a California labor law attorney as soon as possible. A knowledgeable attorney can provide an unbiased analysis of your situation and walk you through the entire process. Be aware that all testimony given an unemployment hearing can be used in other proceedings. If you have a possible claim for wrongful termination or personal injury, it is especially wise to prepare your testimony with counsel. Finally, do not forget to continue to file your weekly claim forms with the EDD while your appeal is being processed. If you are successful in court, you will only be compensated for those weeks in which you filed weekly claim forms.
