Articles Posted in Unemployment Benefits

misconduct definition eddUnder California Unemployment Insurance Code, “misconduct” associated with employment termination is defined as substantial, willful violation of a known employer rule or policy. This definition of misconduct is generally favorable to employees-claimant as it requires the violation to be serious and intentional or at least grossly negligent. The employer has a burden to prove misconduct in order to have the employee disqualified from receiving unemployment benefits. Ordinary mistakes, negligence, substandard performance, and lacking in qualifications are not considered misconduct and are therefore not grounds for denying unemployment benefits.

There are a two important things worth noting about misconduct:

  • The employer might argue but the employer does not determine whether the reasons for your termination qualify as misconduct. They can only provide the facts about the reasons for your termination. EDD or CUIAB make their own independent determination of whether misconduct took place.

This week, the California Supreme Court reversed a prior troubling decision where one appellate court held that an employee’s refusal to sign an acknowledgment form that he received a warning or PIP notice is misconduct within the meaning of unemployment insurance code, disqualifying that employee from unemployment benefits. In other words, until now – if an employee was fired for refusing to sign a warning or a PIP or any other kind of disciplinary notice, and he was terminated for just that alone, he would not have qualified for unemployment benefits.

In the most recent decision Paratransit Inc. v Unemployment Ins. Appeals Board, filed on July 3, 2014, the supreme court held that a good faith refusal to sign a disciplinary notice is not a misconduct within the meaning of Unemployment Insurance Code section 1256. Among other arguments supporting that decision, the highest Court of the state pointed that this decision is in line with the law in the other states. As long as the an employee’s decision to refuse to sign a disciplinary paperwork is “reasonable” and it doesn’t cause some kind of harm to employer’s operation, being terminated for that alone will not disqualify him from receiving unemployment benefits.

You can find the full decision of this case here.

In the recent decision of Natkin v California Unemployment Insurance Appeals Board, the appellate court clarified the term “wages” within the meaning of unemployment benefits rules. In that case, the claimant was an attorney who was laid off and who started his own law practice. On his application for unemployment benefits he calculated the wages that he was to report on his EDD claim by subtracting his business expenses from his income, which included various office purchases, such as office furniture, office supplies, etc.

The Court of Appeal disagreed and concluded that under Unemployment Ins. Code 1279, the term “wages” is plain and unambiguous, and it means “any and all compensation” received within a given period. Nothing in the law allows or even talks about the option to subtract business expenses from the total income generated by the claimant.

An unemployment appeals hearing is a fairly simple and straightforward process. If you have been denied unemployment benefits, it is certainly worth appealing the denial and having that hearing. After all, it doesn’t cost anything (except if you are represented by an attorney at that hearing), and since the employer has the burden of proving that the employee is not entitled benefits in cases where the issue is whether the employee was terminated for “misconduct”, you have an advantage as generally the employer is the one who has to prove their case; not you.

When it comes to your testimony, less is definitely more. You want to stick to the most relevant facts surrounding your termination and remember at all times that the hearing officer does not care about your relationships with co-workers or any workplace drama that does not have an immediate connection to your termination. The hearing only concerns one matter: whether you are entitled to unemployment benefits. It is not a wrongful termination or discrimination or a harassment trial. The more brief and the more specific you are in your testimony the more likely you are to gain credibility in the eyes of the hearing officer and prevail at that hearing.

Do you need an attorney? I believe that meeting with an experience unemployment appeals attorney to prepare for your hearing, to make sure that you put your best foot forward during that hearing and to avoid the common mistakes that other claimants make, it will be well worth your time to do that. Most attorneys just charge their one-hour fee for this kind of preparation.

Generally, a claimant is not qualified to receive unemployment benefits if she voluntarily resigns from her employment, unless there is “good cause” for quitting. Good cause must be a significant and compelling circumstance that makes is increasingly difficult or impracticable for an employee to continue working.

In a recent case I handled, which I did not hope to win, the claimant was awarded benefits even though she quit. The circumstances of her resignation were unique and interesting. She resigned on the same day that she was placed on a performance improvement plan. The disciplinary action outlined her 30-day goals that she knew she could not completely. The warning made it clear that she is likely to be terminated if she doesn’t complete all the outlined goals. Interestingly enough, the claimant was given an option to take severance and resign during the same meeting she was given the warning. The claimant elected to take the offered severance and resign.

The Unemployment Appeals Board found in my client’s favor, specifically focusing on the fact that the employer refused to give the claimant additional time to complete the tasks in the PIP.

Recently, I had a chance to talk to one of the HR managers at Kaiser. I couldn’t help but ask him why is it that Kaiser tends to fight their terminated employees’ claims for unemployment benefits. Having had at least a dozen of clients who were terminated from Kaiser in the Sacramento area alone during the past six months, and who needed help reversing their denial of benefits, I couldn’t help but be curious. After talking to him, I realized that at least one of the major reasons that Kaiser tries to have their fired nurses and cna’s benefits denied is because they think that if they win in front of the Unemployment Appeals Board, the fired employee will be discouraged from taking any other legal action and will be less likely to sue for wrongful termination.

In reality, however, the exact opposite is often true. Managers don’t seem to realize that by trying to strangle a victim after shooting it, they only increase the chances of the employee getting angrier at them, more desperate for income, and thus having no other resort but at least try and bring a lawsuit against the employer. A terminated employee who feels that he was treated unfairly gets approved for unemployment benefits, might feel better in part because of having at least some income while he is looking for a new job. On the other hand, the same employee who has to fight to get his unemployment benefits will be much more likely to get even more angry at his employer and will be much more eager to sue.

It’s important for both the employers and employees to remember that the outcome of the unemployment appeal hearing has no bearing on an employee’s legal claims and has marginal relevance at best to the employee’s ability to prove his claims in court. In other words, just because the employee is not eligible for unemployment benefits, doesn’t mean that he won’t win his case in court. The opposite is true as well – getting unemployment benefits awarded is no assurance to winning a lawsuit.

I was glad to find out yesterday that yet one more of my clients won the appeal of the denial of unemployment benefits in Sacramento County. In that case, I represented a nurse who was an outstanding and dedicated employee for Kaiser for over 13 years before she was diagnosed with major depression that lead to her being late to work on occasions and seeking treatment.

My client was summarily terminated under the blanket absenteeism policy of Kaiser that completely disregards state and federal disability laws and obligations that employers have toward disabled workers. At a hearing, the employer represented by the managing nurse of the department admitted that she was aware of the claimant’s diagnosis for several years prior to her termination. Being a medical professional, the employer’s representative didn’t even dare to suggest that she did not know that some of the common symptoms of depression are anxiety, fatigue, inability to focus and thus – the resulting tardiness.

The administrative law judge ruled in my client’s favor as I expected, concluding that even though she violated the employer’s policy, because the violation was caused by the common symptoms of depression, she should not be disqualified from unemployment benefits under section 1256 of the unemployment insurance code.

Employers who terminate employees routinely fight the award of unemployment benefits if they feel that the employee was terminated for cause or for misconduct and should not receive unemployment compensation, which results in increasing the premium that the employer has to pay toward that insurance reserve with the State.

Fighting unemployment benefit and even winning that fight is very likely to backfire and turn out to be much more expensive than simply letting an employee collect unemployment. Many employees, when laid off or terminated, at the very least consider in the back of their mind the possibility of suing their recent employer. Whether the employee decides to aggressively pursue litigation against his former employer depends on the number of factors, but the emotional component – the anger at the employer is certainly not an insignificant element in that decision. Often, it’s what makes a difference between letting things go and going after the employer in court.

Consider terminating an employee who feels that he was fired unjustly. He is hurt and angry, but at the same time thinks that it’s a better idea to take a break, collect unemployment and look for another job. He applies for unemployment and gets denied benefits because the employer stated that the employee was terminated for misconduct. This very likely takes the employee over the edge and drives him to file a lawsuit for wrongful termination, harassment, discrimination, defamation, intentional infliction of emotional distress, and many other possible claims.

The hearing to contest the denial of your unemployment compensation benefits is very much like mini-trial. The employee and the employer find themselves sitting across from each other with or without legal representation in front of the administration law judge who will hear both sides, will allow both parties to ask each other questions and present their evidence and make a closing statements to support their position.

unemployment benefits appeals hearing in CaliforniaSupport your Arguments with Evidence. The rules of admitting evidence are far more relaxed at an unemployment appeal hearing than the formal rules of evidence in trial courts. Thus, almost all evidence is admitted, although given different value according to its weight and credibility. The best evidence you can present is having actual, unbiased witnesses show up with you and testify as to the truth of what you you will telling the judge. The second best evidence is declarations signed under the penalty of perjury by any persons who witnessed any conduct by you or your employer, relevant to the appeal. Make sure to make two extra copies of any documents you plan to introduce into evidence – one copy for the judge and one for the opposing side.

Address Only Those Issues that are Directly Relevant to Your Claim. The biggest challenge that the parties to the hearing have is remembering that the administrative judge is only concerned with the most recent events that lead to termination. The hearing at the unemployment appeals board is not a hearing about harassment, discrimination, favoritism, defamation, retaliation or other civil claims. This hearing is strictly about whether the reason/s the employee was terminated disqualify that employee from the benefits.

A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or – if the leave of the employee was unforeseeable – within two business days after the employee’s leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has “reason to doubt the validity of the certification.” The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

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