This probably happened to someone you knew at one point or
another.
You get let go.
You apply for unemployment. Maybe things went smoothly at
first since you got your unemployment checks for the first few weeks. Then all
of a sudden you get a letter in the mail. You former employer is claiming
“misconduct” and why you shouldn’t be eligible for the unemployment checks that
you are now depending on to pay your rent and bills. They even set in a few
"write-ups" to EDD about you to prove how bad an employee you were.
Perhaps you never even seen one or two of these write-ups until now. Words like
“insubordination” suddenly shows up.
Suddenly you feel like a criminal! Someone is accusing you
of misconduct!
I get a lot of callers with this same problem. For most of
them I can say that based on what they’re telling me, it doesn’t seem like “misconduct”
at the EDD level. Then we have to take it to appeal and fight what the employer
accused him or her of. Most people are angry or at least very upset when this
happens.
First, I need to clarify that California is an at-will
employment state. This means that your job is presumed to be terminable “at
will” by either party. An employment, having no specified term, may be
terminated at the will of either party on notice to the other. In general, your
employer can let you go for any reason, as long as it is not an illegal reason
(but that is the subject of another long blog yet to come). What I am
explaining in this blog is whether the reason you are terminated qualifies or
disqualifies you for unemployment insurance/EDD. This blog does not discuss wrongful
termination or California employment law.
Ok, so a big bummer is that your employer can terminate you
for any reason. There doesn't even need to be a reason. So, it is my belief
that unemployment insurance is to help people in this situation.
I help clients with their EDD appeal hearing. Either they had
their appeals hearing set right away, or I have to help them ask for a hearing
so their case can be heard. As a caveat, I only assist with appeals and
hearings, I don’t handle administration with EDD such as filing claim forms.
One very repetitive theme for EDD hearings is “misconduct”.
Many employees get charged with Unemployment Insurance Code 1256, which is: An
individual is disqualified for unemployment compensation benefits if the
director finds that he or she left his or her most recent work voluntarily
without good cause or that he or she has been discharged for misconduct
connected with his or her most recent work. So at the appeal hearing, the issue
is whether there was misconduct that rose to the level to deny EDD benefits. To
me, that is a very hard threshold to meet.
Rules within EDD appeals can get very complicated.
“Misconduct” has many different subcategories such as aiding competitor,
falsification of work application, cash shortage, improperly channeled
complaint, disobeying orders, exceeding authority, use of drugs, damage to
equipment, not meeting quality or quantity of work, neglecting duty on the job,
poor relations with customers or coworkers, etc, etc etc. Each of these subsections
also has it’s own sub-subsections, and the rules within each subsection or
sub-subsection can be very confusing.
There is a huge list of reasons an employer can claim
“misconduct” for EDD purposes, but each of those reasons have to be very specifically
met. And that is usually what we are fighting over at the EDD hearing in front
of a judge. The employer will argue that something constitutes misconduct for
EDD purposes, and I will argue that it does not amount to misconduct.
Let’s take “quality of work” as example (which is a popular
choice). An employer can simply say: we don’t like the employee’s work product,
it’s not up to par with our standards. An employer may use this as a reason to
fight the employee’s unemployment claim and argue “misconduct”. They may even
write a few post-termination "write-ups" claiming that employee was
insubordinate or that on xyz date they couldn't find employee at their post.
These post-termination write-ups are very suspect with me.
Under Title 22, Section 1256-38(b)(1): “Ordinarily inability
or incapacity to perform the job or inefficient performance is not misconduct.”
The explanation goes on to say that if the employee did poor work because of
inability to do better, it is not misconduct. This means that if the employee
only weighed 140 pounds, and was ordered to stack bags of concrete weighing 250
pounds each, the employee’s inability to do the job is not considered
misconduct. Employee may also be unable to do the work as a result of physical,
mental, or emotional problems not within employee’s control.
In a precedent decision by EDD, it was found that merely
being inept to do the job is not misconduct.
Also, if the employee had a vision issue that caused him or
her to not be able to perform their job, but did not consult an optometrist or
refuse to wear corrective lenses, it is considered misconduct because the
employee had the power to control the inefficiency.
And one more thing to consider is, did the employee have the
ability to do better? If the employee was able to do better, and then all of a
sudden the work performance deteriorated, with no explanation for the
deterioration, there is misconduct. So, you cannot be the star employee for 3
months, and all of a sudden start to have performance problems. Usually, there
needs to be some sort of warning from the employer before they can establish
misconduct. But, an isolated instance of mistake by the employee does not count
as misconduct.
Just to make it more confusing, this doesn’t mean you can simply
start slacking and still get unemployment insurance payment. EDD rules that it
IS misconduct if the employee willfully fail to perform to the best of his or
her abilities. If the employee does nothing to improve his or her performance,
or if the sub-par performance is entirely within his or her control, that is
still misconduct. If the employee knowingly and willfully failed to perform to
the best of his or her ability, it is considered misconduct. So, if you know
you can do better (and there is documented performance reviews and awards to
prove you did better), and you simply slacked off, you probably won’t win your
case.
Every case is different, and not all rules will fit perfectly
with your case. Some cases may have multiple reasons and theories. I can’t go
into all the different rules and nuances within this blog here, but hopefully I
shed some light as to this complicated issue.
I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.
