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Unemployment benefits not always guaranteed

Attorney Joe Richardson explains how misconduct might nullify an employee's right to unemployment benefits

Information for employers and employees about unemployment benefits

ComptonHerald.com | Joe Richardson

“Legal Learning” is commentary by Joe Richardson, Esq. The column does not constitute legal advice, as individual cases turn on their particular facts.

As a general statement, unemployment insurance is a benefit that employees that have received enough income during a specific 12-month period are entitled to receive. Once an employee finishes an employment and files for benefits, the California Employment Development Department (EDD) will conduct a phone interview to determine whether the employee will receive benefits. Generally speaking, only employees that commit “misconduct” will not be eligible for benefits.

Misconduct is addressed in Section 1256 of the California Unemployment Insurance Code:

Four elements constitute misconduct:

  1. The employee owes a material duty to the employer
  2. There is a substantial breach of that duty
  3. The breach is willful or wanton
  4. The breach disregards the employer’s interests and injures or tends to injure the employer’s interests.

Source: www.edd.ca.gov

Termination for misconduct such as violence or embezzlement will preclude the receipt of unemployment benefits. Even then, misconduct does not have to have an evil or corrupt motive. On the other hand, if a person is let go because they were inefficient or did not perform well, this will not amount to “misconduct” because willfulness is lacking.

Some situations such as breaking work rules (being tardy, using cell phones, etc.,) can be closer questions, and can amount to misconduct if they are done repeatedly, with ignored warnings.

For Employees

Understand your rights related to unemployment beneifts. As a general statement, without misconduct, you will qualify for benefits, but voluntarily walking away from your job may complicate your claim if not considered a “discharge.” Observe all rules related to your employment, and always be clear with the employer if anything negative about work performance or conduct is being alleged. If there is a negotiation related to termination or resignation, your right to unemployment insurance cannot be bargained away.

For Employers

If a relatively “minor” issue becomes a major one because of its redundancy, documentation on the employer rules themselves, the employee’s violations, and your discussions with the employee on the ramifications of continued violations will be important to demonstrate misconduct. If you “forgive” an incident that constitutes misconduct, it may be difficult to use that incident to claim misconduct later, meaning the opposition of unemployment benefits for the employee may not succeed.

<p>Joe Richardson, Esq. is a native son of South-Central Los Angeles, and an attorney practicing tort, contract, and labor, and employment law in Southern California for more than 15 years. He also teaches and speaks on legal issues.</p>

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