Let’s say you fire an employee for violating a very reasonable company policy, such as the harassment policy, or a safety policy, or even misappropriation of company property. Does that mean that the employee should be prevented from getting unemployment in California? The answer very well may be NO, and a recent case explains why.
In Robles v. EDD (pdf) the employee was terminated for attempting to use his safety shoe allowance to buy shoes for a friend in need. The store clerk would not let him buy the shoes for his friend and informed his employer of the attempted purchase. The employee wrote a statement indicating that he didn’t understand the limits of what he could do with his safety shoe allowance, he had two pairs of safety shoes already, he deeply regretted his attempt to buy shoes for his friend, and promised not to do it again. He was fired anyway.
Whether an employee is entitled to unemployment depends on whether the reason for his termination rises to the level of “misconduct” as that term is defined in Section 1256 of the Cal. Unemployment Insurance Code. The Robles case explains that to rise to the level of misconduct, the conduct must be willful, volitional, and intentional. Conduct may be harmful to the employer’s interests, and certainly justify termination, yet still not equate to misconduct under the Code. In fact, the Court of Appeal found that given this employee’s lack of understanding of the shoe policy and his words of regret, that his actions did not rise to the level of misconduct, and that he was entitled to unemployment.
The Court also explains that circumstantial evidence can be used to prove intent, such as multiple warnings to an employee about a particular type of policy violation. Therefore, if you have proof that the employee knew of the applicable policy and intentionally disregarded it, then the misconduct standard may be met. Even so, it is important to keep in mind that many (if not most) terminations will not result in the denial of unemployment. Moreover, fighting an unemployment claim and losing it, may result in the disgruntled ex-employee feeling vindicated – indeed, just vindicated enough to sue you.
The lessons here? (1) Think twice before fighting a losing battle; and (2) don’t underestimate the power of an apology.