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Posted September 2017 by S. Ward Heinrichs
Ward Heinrichs has represented both employers and employees in unemployment hearings. Sometimes employers need help in a close case or with a former employee believed to be difficult. Sometimes employees need help presenting their cases in an effective manner to secure benefits that may last for an extended period of time. Over the years, Ward has heard many people say that they were surprised by the outcome of their hearings. Ward believes those people were surprised because they misunderstood the laws governing unemployment.
Most people believe that if an employee quits, that employee will not receive unemployment benefits. Often, that is true, but not always. Similarly, many believe that when an employee is terminated, that employee is entitled to benefits. That’s not always true either.
The California Unemployment Insurance Code section 1256 states: “An individual is disqualified for unemployment compensation benefits if . . . he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct.” Consequently, if an employee quits without “good cause” or was discharged for “misconduct”, then that employee will not get unemployment benefits. However, employees are presumed to quit with good cause, and employers are presumed to terminate for reasons other than misconduct. In other words, the employee gets unemployment benefits unless the employer provides facts proving that the employee either quit without good cause or was fired for misconduct.
What is “good cause”? Here are some examples of quitting for good cause:
1.When a collective bargaining agreement requires retirement.
2.When joining a spouse or domestic partner at a place where commuting to work is not practical.
3. When protecting the employee or a family member from domestic violence.
4. When a collective bargaining agreement allows a senior employee to quit instead of a junior employee.
5. When the employer discriminates based on a protected class defined under the Fair Employment and Housing Act.
6. When the employee suffers Sexual Harassment.
What is “misconduct”? Here are some examples:
1. Several on-the-job accidents by a professional truck driver caused by the driver’s negligence.
2. Taxi-cab driver falling asleep while driving passengers.
3. Minor mistakes where the employee has had previous warnings.
4. A mistake that violates a clear work-related duty and that leads to substantial damage.
What is not an act of misconduct?
1. Discussing with other employees the possibility of competing with their employer.
2. A single vulgar remark directed at the owner in the owner’s presence.
3. Mere inefficiency under the circumstances.
4. Poor judgment alone is often not enough.
In addition, the employer must discharge the employee for the misconduct, not for some other reason. For instance, in one case, an employee embezzled $250 from her employer. The employer retained the employee after counseling, but learned that she had embezzled to keep her son out of jail. Two weeks later, the employer terminated the employee because the employer believed that she was likely to embezzle again to help her son. The termination was not for misconduct. The employer terminated the employee based on a fear of embezzlement in the future, not on the past embezzlement. Also, if too much time passes between the misconduct and the termination, the employer faces increased risk of not proving misconduct.
S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 408-7543 (fax)
Employment Law Office of WARD HEINRICHS
4565 Ruffner St. Suite 207 San Diego 92111
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