Misconduct MC 5


When a claimant is discharged from his or her most recent work, there is an issue under Section 1256 of the California Unemployment Insurance Code (UI Code) which needs to be resolved to determine the claimant's eligibility. This section discusses the general principles involved in such determinations.

A. Discharge for Misconduct Connected with Most Recent Work

Section 1256 of the UI Code provides that an individual is disqualified if he/she was discharged for misconduct connected with his/her most recent work.

  1. Discharge

    For the misconduct provision of the UI Code to apply, the claimant must have been discharged.

    "Discharge" as used in Section 1256 means the claimant did not voluntarily quit the job, and was not laid off for lack of work. Instead, the claimant was ready, willing and able to continue working, but the employer would not permit the claimant to do so, even though there was no lack of work.

    Occasionally, it is not clear, and it is necessary to decide, whether the claimant voluntarily quit or was discharged. According to Precedent Benefit Decision P-B-37, issued by the California Unemployment Insurance Appeals Board (Board), in determining whether there has been a voluntary leaving or discharge under UI Code, Section 1256, it must first be determined who was the moving party in the termination. Generally, if the claimant left employment while continued work was available, then the claimant was the moving party and the separation is a voluntary quit. If the employer refused to permit the claimant to continue working although the claimant was ready, willing, and able to do so, then the employer was the moving party, and the separation is a discharge. Sometimes, an employer may allow an employee to voluntarily quit, instead of discharging the employee, so that the employee's work record will "look good." In such a case, the employer remains the moving party and the separation remains a discharge. For a detailed discussion of the general principles involved in determining whether a given separation is a voluntary leaving or a discharge, see VQ 135, Voluntary Leaving or Discharge. Also see VQ 135 for a discussion on termination by "Mutual Agreement or Mutual Misunderstanding."

    A discharge from the military service will not raise an issue under Section 1256 of the UI Code. If the discharge from the military service is under dishonorable or other than honorable conditions, the issue is whether the military wages can be used to establish the claim.

    When the employment ends because of a contract, there is no "discharge" as the word is used in Section 1256 of the UI CODE. In P-B-275, the Board held that an employment relationship is a contractual one, whether express or implied, and the termination of an employment relationship in keeping with a specific contract of employment is binding upon the employer and the employee. Neither party is legally obligated to offer or accept a new contract, and a claimant who completes a specific period of employment and becomes unemployed under its terms is not disqualified under Section 1256 of the UI Code. However, it should be noted that if the employer offers a new contract, and the claimant refuses to accept it, there would be a suitable work issue.

  2. Relationship Between Act and Discharge

    The Board and the courts have interpreted the word "for" in "discharge for misconduct" to mean that there must be a causal relationship between the act of misconduct and the discharge itself. There must be one or more acts which can be defined as misconduct and which directly cause the claimant's discharge for the claimant to be found ineligible. A claimant can commit an act of misconduct and can be subsequently discharged by the employer but unless he or she was discharged because of the act of misconduct, it could not be said that he or she was discharged for misconduct.

    Example - Direct and Proximate Causal Relationship:

    In Precedent Benefit Decision, P-B-192, the claimant engaged in a physical encounter with a fellow worker, a year before he was discharged. This resulted in a strained relationship between the claimant and the co-worker, which continued until the claimant's discharge. This situation made it difficult for the claimant to remain in his job. Once, he took steps to notify the employer that he was quitting, but he did not quit. He then went on a vacation, expecting to return at its conclusion. Four days later he was discharged because the co-worker with whom he had the altercation and another worker served the employer notice that he must either dismiss the claimant or lose their services. Admittedly, the claimant was a man of quick temper. The employer contended that the claimant was a troublesome employee, and the discharge was for misconduct. The Board disagreed and stated:

    [T]he primary reasons which motivated the employer in discharging the claimant were the latter's "unfortunate disposition" and his alleged inability "to get along with his fellow employees." Standing alone, these reasons do not fall within the definition of misconduct

    . . . . Had the claimant been dismissed after the altercation with the co worker whose complaint set his discharge in motion, that termination would have been for misconduct, as the claimant freely admits. But though this incident may have had some influence on the employer's decision to discharge the claimant, it was not the basic reason for the discharge. . . A direct and proximate causal relationship between specific acts of misconduct and a discharge must be shown if a disqualification for benefits is to be assessed for such acts.

    Example - Direct Cause of Discharge:

    The claimant, a bookkeeper, embezzled $250 from the employer to keep her son from going to jail. The employer discovered the embezzlement but, because of the circumstances, decided to give the claimant another chance if she would repay the money in weekly payments. Two weeks later, the employer concluded that the probability was high that the claimant would again embezzle due to the need for money for her son, and discharged the claimant.

    The discharge was not for misconduct since the direct cause was the employer's conclusion that the claimant would embezzle again. The indirect cause was the prior embezzlement. The fact that the discharge had an indirect connection with the prior embezzlement does not mean the discharge was for misconduct.

    What if the employer give multiple reasons for the discharge? If the employer does so, it must be determined which was the basic cause for the discharge.

    Example - Multiple Reasons for Discharge::

    The claimant was employed as a pantry woman. Two days prior to her discharge, a new restaurant manager was hired to improve the efficiency of the organization. The claimant worked only one shift under the new manager and was dismissed. When contacted by a Department Representative for the reason for discharge, the manager stated that the claimant was generally inefficient and read magazines while on duty. However, the manager also stated that at the time he discharged the claimant his primary concern was hiring someone who could also cook and, in fact, he had someone in mind for the job.

    The discharge was not for misconduct. Even though the claimant read magazines during lulls in business and was generally inefficient, the employer’s primary reason for discharging the claimant was to replace her with someone who could also cook.

    Example - Discharge for Series of Acts:

    The claimant repeatedly overstayed his lunch hours and coffee breaks and was repeatedly warned. He finally was told that if he continued overstaying his rest periods, he might lose his job. Immediately prior to his discharge, the claimant was shown a diagram of the way the company wanted books displayed for sale. The claimant refused to display them in that manner, and was discharged because of his record of overstaying rest periods and his refusal to display books as instructed.

    The claimant was discharged for misconduct. Although the final act that caused the discharge was a different type of malfeasance from that which previously occurred, the claimant's long record of disregarding the employer’s reasonable requests must be taken into consideration when determining whether the discharge was for reasons constituting misconduct.

    What if the employer gives generalities or conclusions as the reason for discharge? For example, the employer may state:

    • Employee was discharged for misconduct.
    • Employee was unsatisfactory.
    • Employee was unreliable.

    In such cases, it is necessary to get specific facts from the employer to determine the basic cause of discharge. The specific facts behind such generalities and conclusions may range from intoxication on the job to an employer's desire to hire his nephew for the job.

  3. Misconduct Defined

    An employer has a right to discharge an employee, and this right is limited only by applicable labor laws and/or the terms of the collective bargaining contract, none of which should concern the Department. Consequently, in determining if the claimant is eligible under Section 1256 of the UI Code, the employer's right to discharge a claimant will not be questioned. However, the fact that the claimant was discharged does not necessarily mean that the claimant was discharged for misconduct.

    Likewise, the employer's statement that a claimant was discharged for "cause" does not necessarily mean that the claimant was discharged for misconduct. Invariably, an employer will have a "cause" (or reason) for discharging an employee.

    "Misconduct" is an intangible concept which has never been defined by the legislature. In P-B-3, citing Maywood Glass Co . v. Stewart (1959), the Board gave the following definition of misconduct:

    The definition of misconduct must be considered in the light of the basic purpose of the unemployment insurance program. As expressed in Section 100 of the Unemployment Insurance Code, this basic purpose is that unemployment benefits are for persons involuntarily unemployed through no fault of their own.

    . . . 'fault' means intentional action which the person who claims benefits foresees, or which it may be reasonably inferred he must have foreseen, would tend to produce or prolong a period of unemployment and from which a reasonable person in the claimant's circumstances and with the claim- ant's knowledge and understanding, desiring employment and foreseeing such loss of employment, would necessarily refrain.

    In P-B-14, in which a truck driver was terminated because he was involved in several accidents due to negligence, the Board said:

    The term "misconduct" does not necessarily imply an evil or corrupt motive or an actual intent to injure or damage an employer's interests. It is sufficient if the act, or the failure to act, on the part of the employee be committed or omitted under such circumstances as would justify the reasonable inference that the employee should have known that injury or damage to his employer's interests was a probable result.

    Neither is lawbreaking necessarily misconduct under the UI Code. Many types of lawbreaking could be indulged in by an employee without the lawbreaking necessarily constituting misconduct. See G. Illegal Activities, in this section and MC 350, Off-the-Job Conduct, for a detailed discussion on whether a criminal act constitutes misconduct.

    For a claimant's act to be misconduct, the following four elements must be present, according to Title 22, Section 1256-30(b).

    • The claimant owes a material duty to the employer under the contract of employment.
    • There is a substantial breach of that duty.
    • The breach is a wilful or wanton disregard of that duty.
    • The breach disregards the employer's interests and injures or tends to injure the employer's interests.
    1. Material Duty

      Title 22, Section 1256-32, states in part:

      An employee owes an implicit duty to support and serve the employer's interests . . .

      The "material duty" exists in many ways. Some common examples include showing up for work, performing work to the best of one's ability, obeying a reasonable employer order and refraining from fighting or sleeping on the job. If the claimant's act does not violate a material duty to the employer, the discharge would not be for misconduct.

    2. Substantial Breach of Material Duty

      Whether there is a substantial breach, according to the explanation in Section 1256-30(b)(2) of Title 22,

      [R]equires an analysis to determine the severity of the employee's actions. Where the ordinary negligence of the claimant has resulted in the minimal injury to the employer's interests, the breach is not substantial unless the claimant has been previously warned or reprimanded about this type of negligence and has the ability and capacity to perform satisfactorily. Thus a janitor who negligently fails to empty a wastebasket or dust a desk and is discharged is not disqualified for misconduct unless there had been previous warnings or reprimands for this type of conduct and the janitor has the ability and capacity to perform satisfactorily.

      On the other hand, where the employer's interests have been more severely damaged by the grossly or substantially negligent or deliberate acts of the claimant, misconduct may be found even without previous warnings or reprimands for prior similar acts . . .

      Example - Substantial Breach of Duty:

      While transporting a pregnant woman and her two minor children, the claimant, a taxicab driver, fell asleep and became involved in an accident with another car. The claimant admitted that, prior to the accident, he had not obtained his customary sleep and felt tired, but he asserted that he had not felt tired enough to fall asleep and had had no idea he might doze off. The claimant produced no medical explanation of a physical ailment which would cause any sudden sleepiness.

      The claimant’s discharge was for misconduct. Since a motor vehicle is recognized as a dangerous instrumentality, the claimant had a high degree of responsibility and duty to the employer, to the drivers of other automobiles, and to the taxicab passengers who had to rely upon him for safe passage. It is well known that falling asleep is a common cause of automobile accidents; and this claimant, as the driver of a taxicab, had an added responsibility in taking proper precautions for his safe handling of the vehicle. His failure to take such precautions manifests a high degree of carelessness if not a deliberate disregard of the standards of behavior which the employer had the right to expect of any employee.

    3. Wilful or Wanton Disregard of Duty

      This means that the claimant deliberately committed the act, or as stated in Section 1256-30(b)(3) of Title 22,

      [T]he claimant knew or should have known that the actions were not in line with the standards of behavior expected as an employee of the employer.

      Example - Action Wilful:

      The claimant worked in a winery assisting the operator of a filter pump in transferring wine to an empty vat. The claimant was engaged in this duty on the occasion leading to his discharge. He attached the end of the hose to the intake valve of the tank, as was customary, but failed to check the lower valve. As a result 933 gallons of wine were lost. It was a company requirement, of which the claimant had been informed, that it was the primary duty of the individual attaching the hose to the intake valve to also close and cap the lower valve. The claimant's only reason for failure to check the valve was that the employees had agreed among themselves that whoever had this assignment would not be expected to check the lower valve.

      In this case the employer instructed its employees that when releasing wine into the vats, it was the duty of the individual attaching the hose to the intake valve to close and cap the lower valve. However, the claimant and the other employees deliberately chose to follow a different procedure. While the claimant undoubtedly did not intend to spill the wine, his actions leading to the loss of wine were willful. As a result, the discharge was for misconduct.

      Where the element of willfulness is missing, the claimant's actions would generally not be misconduct. For example, according to Section 1256-30(b)(3) of Title 22, misconduct generally does not exist, because willfulness is missing, if the claimant:

      • Has been merely inefficient.
      • Has failed to perform well due to inability or incapacity.
      • Has been inadvertent.
      • Has been ordinarily negligent in isolated instances.
      • Has made good faith errors in judgment or discretion.

      Example - Inefficiency:

      In P-B-222, the claimant was a pasteurizer for a large creamery. Prior to the claimant's discharge, there had been several discussions between the superintendent and the claimant in connection with the quality of the claimant's services. Although the claimant testified that his work improved after those discussions, his superintendent believed that the claimant had failed to improve sufficiently to warrant keeping the claimant. The principal complaint against the claimant appears to be a failure to pasteurize milk on occasions at proper temperatures and that the claimant at times held milk in the vats an excessive time, resulting in the milk acquiring an undesirable flavor. In one instance, about three hundred gallons of milk were spoiled due to improper pasteurization, resulting in a considerable financial loss to the employer. In finding the claimant eligible, the Board said:

      A careful review of the entire evidence in the instant matter does not disclose, in our opinion, more than inefficiency or unsatisfactory performance on the part of the claimant . . . The record does not establish that the claimant wilfully or intentionally disregarded the employer's interest or that the occurrences forming the basis for the discharge were deliberate violations of standard good behavior . . .

      Example - Error in Judgment:

      In P-B-195 the claimant, a cab driver, was discharged because of a traffic accident. At the time the claimant was hired, he received a course of instructions covering the company's rules and the motor vehicle laws with which he was expected to comply. Shortly after the end of the course, the claimant was involved in a minor accident when he backed into a parked car. He was warned that he would be discharged if involved in one more accident within a year. Several months later, the claimant was en route to pick up a passenger. He was driving approximately 40 feet behind another car, when he was hailed by someone on the left side of the street and glanced toward the person hailing him. He heard the screech of brakes, immediately looked to the front and applied his own brakes when he saw that the traffic in front of him had stopped. He was unable to stop before colliding with the car in front of him. The collision was observed by two police officers and the claimant was cited under Section 22350 of the California Vehicle Code. The Board found the claimant eligible and stated:

      In this case, the claimant was cited under Section 22350 of the California Vehicle Code. We do not consider the fact of citation controlling in this case, but only one of the factors which we must consider in arriving at our conclusion. The quoted section of the Vehicle Code is so phrased as to allow the driver of a vehicle to exercise judgment in the operation of such vehicle. Assuming that the claimant was careless as found by the traffic officers involved, his carelessness was, at most, an error of judgment. Admittedly, it was his fault that the collision occurred. However, he was following the vehicle preceding him at a reasonable distance and erred only when he withdrew his attention from the road when he was hailed by a person on the sidewalk. It appears to us that the claimant's action could readily be defined as a reflex action in response to the call, especially since it was the practice of the taxi drivers to seek to identify such a person so that the company could be informed of a possible customer.

      Example - Isolated Incident of Ordinary Negligence:

      In Silva v. CUIAB (First Appellate Court, 1973), the claimant was being trained for new and unfamiliar work; he became nervous and frustrated and either "blew up" or felt he was going to blow up. He left work without permission in midafternoon. The employer was aware of some emotional problems the claimant was having. The employer spoke to the claimant the next morning about his unauthorized departure. The claimant's reply was sarcastic and, when told if such action was repeated he would be discharged, he responded with a vulgar remark. He was told if that was the way he felt, he could leave, whereupon he left. He would have been discharged for his attitude and language that morning had he not left. The court held:

      Given the tests of fault and wilful or wanton behavior as essential elements of 'misconduct', the single instance of an offensive remark . . . uttered in the circumstances disclosed falls within the category of a mere mistake or error in judgment, a 'minor pecadillo' and is not misconduct disqualifying appellant from unemployment insurance benefits.

      It should be noted, however, that despite acts of ordinary negligence, this element of willfulness may be found if the claimant has been previously warned or reprimanded for prior similar acts and has the ability and capacity to perform satisfactorily.

    4. Injuring or Tending to Injure the Employer's Interests

      This means that the claimant's actions, according to Section 1256-30(b)(4) of Title 22,

      . . . could possibly cause financial loss, or loss of business, property, or customers, and damage incurred such as disruption of production, of normal lines of communication, or control, or discipline. The employer does not have to actually suffer any financial loss or a loss of control or discipline or a slowdown in production by the claimant's actions. It is sufficient if the claimant's actions logically and reasonably injure or tend to injure the employer's interests. This potential injury to the employer's interests may exist even if the claimant's acts are committed away from work.

      Example - Employer's Interests Not Injured:

      In P-B-183, the claimant was an office manager. He was interested in entering into the construction business on his own behalf, and tentatively discussed with three other employees the possibility of organizing a new company. Such discussions were concerned with general qualifications of the claimant and the other employees and the possibility of securing adequate financing. The claimant's activities had not in any way caused any dissatisfaction among the other employees or disrupted the employer's business. One of the employer's partners learned of the claimant's desire and instructed him to cease the discussion. When the claimant refused, he was asked to resign. The Board found the claimant eligible and stated:

      [W]e believe that in this case, the claimant's conduct was not such that it had interfered with the orderly conduct of the employer's business or that the employer's order was in any way necessary to protect or preserve its business. The evidence before us merely shows that, whatever may have been the claimant's intentions with respect to starting his own firm, he and the other employees involved had always performed their duties for the employer in a satisfactory manner.

  4. Connected with Most Recent Work

    Under Section 1256, the claimant may not be disqualified for misconduct unless it can be shown that the misconduct is connected with his or her work. Generally, what the claimant does on the job or during working hours and on the employer's premises would be considered connected with his or her work.

    Conduct off the job and outside of working hours may be considered connected with work and misconduct under certain circumstances. The test is whether such conduct injures or tends to injure the employer's interests. See MC 350, Off-the-Job Conduct, for a detailed discussion.

    Work has been defined in Title 22, Section 1256-2(b), as full-time, casual, part-time, permanent, or temporary service, performed for wages or remuneration, including call-in, show-up or standby pay and in-kind compensation, including, but not limited to, service by:

    • An employee as defined in Section 621 of the code.
    • An employee under the usual common law or admiralty rules regardless of whether the services are in "employment" under the code.
    • A self-employed individual who has elected coverage under Section 708 of the code.
    • An individual in military service or federal civilian service.
    • An individual who is a participant in an on-the-job training, work experience, or public service employment program . . .
    • An individual in antipoverty programs based on wages for work such as the work study programs . . .

    For the purposes of Section 1256 of the code, "work" does not include:

    • Uncompensated service, such as service performed during unpaid training periods provided by employers to applicants for employment who are hired only after successful completion of the training.
    • Service performed as a self-employer or independent contractor who has not elected coverage under Section 708 of the code.
    • Service performed in training programs designed to prepare persons for future employment, such as the Job Corps.
    • Service performed in jury or witness duty.
    • Service performed in prison by an inmate.

    Not only must the work be "work" as defined by the code and the regulations, but the work must have been the "most recent" in terms of the filing of the claim. A disqualification cannot result unless both conditions - "most recent" and "work" - are present.

    Title 22, Section 1256-2(d), provides:

    . . . 'filing' generally refers to the day a claimant mails a continued claim, or other claim, or reports to a department field or branch office in order to commence the process of claiming benefits, except where the claimant fails to report for a later scheduled completion appointment . . .

    Based on Section 1256.3 of the UI Code and Section 1256-2(d) of Title 22, most recent work is the work in which the claimant last performed compensated services prior to reporting to a field office to commence the process of claiming benefits. The beginning date of the claim is immaterial in determining most recent work.

    Example - Most Recent Work for New, Additional or Reopened Claims:

    In P-B-267, the claimant quit his job on a Friday, and worked for another employer on Monday. On Tuesday he filed a claim effective the preceding Sunday. In holding that the Monday work was the last employment, the Board stated:

    It is our opinion that the basic purpose of Section 1256 of the code is to disqualify claimants for reasons which may have caused the period of unemployment in connection with which the claimant is claiming benefits . . . . Therefore we hold that the claimant's 'most recent work' within the meaning of the Section 1256 of the code was that which occurred on Monday . . . in connection with his claim filed on Tuesday of that week, even though his last employment prior to the effective date of his claim on a calendar week basis was with the employer herein.

    For continued claims, Title 22, Section 1256-2(d)(2) states:

    . . . Here, the most recent work is the last employment the claimant had during the calendar week for which the continued claim is filed. Each week is separately considered. For example, an unemployed claimant may mail a continued claim on Monday, and if the claimant worked only in the first of the two weeks for which he or she is claiming benefits, then the last day of this employment in the first week is the most recent work for that week and remains the most recent work for the second week.

    Based on the above regulation, the most recent work for a continued claim must be in the week(s) claimed. The claimant may have worked after the week(s) claimed and before mailing the continued claim form, but that work will not be the most recent work with respect to the week(s) claimed.

    Example - Most Recent Work for Continued Claims:

    The claimant mailed a continued claim on Tuesday, April 14 for the weeks ending April 4 and April 11. During the week ending April 4, he worked for Employer G on April 2 and was discharged for fighting on the job. During the week ending April 11, he worked for Employer H on Thursday, April 9, earned $85 and was laid off for lack of work. On Monday, April 13, he worked for Employer K, was dissatisfied with the job, and quit.

    In this case, for the week ending April 4, the most recent work is for Employer G. For the week ending April 11, the most recent work is for Employer H. Even though he worked for Employer K immediately prior to mailing his continued claim, that employer is not the most recent work for the weeks ending April 4 and April 11.

    NOTE: Since the claimant was discharged by Employer G, a determination on the claimant's eligibility is required before benefits can be paid for the weeks ending April 4 and April 11, even though the claimant was laid off by Employer H in the week ending April 11. On the other hand, if the claimant were laid off by Employer G, but discharged by Employer H, benefits for the week ending April 4 would-be payable prior to a determination on the claimant's eligibility for the week ending April 11.

    Of two jobs held simultaneously, Title 22, Section 1256-2 (d) (1) states:

    If a claimant holds two or more jobs simultaneously, the most recent work is with the employer for whom the claimant performed any compensated services prior to and nearest to the actual filing date of the claim. . .


    The claimant held two jobs simultaneously. Although the claimant was on leave of absence from Employer E, he worked part time for Employer F. The claimant was separated by Employer F, and thereafter by Employer E without performing further service for Employer E. The claimant filed a claim for unemployment benefits.

    The most recent work is for Employer F, since the claimant neither performed services nor received wages from Employer E.

    The above example applies to new, additional, and reopened claims. For continued claims, the most recent work will be with the employer for whom the claimant last performed any compensated services during the calendar week claimed.

B. Burden of Proof and Presumption of Eligibility

Section 1256 of the UI Code provides in part:

An individual is presumed to have been discharged for reasons other than misconduct in connection with his or her work and not to have voluntarily left his or her work without good cause unless his or her employer has given written notice to the contrary to the department as provided in Section 1327, setting forth facts sufficient to overcome the presumption. The presumption provided by this section is rebuttable.

Section 1327 of the UI Code provides in part:

The department shall give a notice of the filing of a new or additional claim to the employing unit . . . The employing unit so notified shall submit within 10 days after the mailing of the notice any facts then known which may affect the claimant's eligibility for benefits, including, but not limited to, facts pertaining to eligibility under Section 1256.

According to these two sections of the UI Code, the claimant is presumed to have been discharged for reasons other than misconduct unless the employer provides facts to overcome the presumption, and the employer is required by law to provide facts within 10 days. This, however, does not mean that if the employer does not provide facts within 10 days, the claimant will be held to have been discharged for reasons other than misconduct.

Example - Employer Response Not Within Statutory Limits:

In P-B-126, the claimant quit his employment on August 15 because of his objection to taking instructions from the plant foreman since he did not believe his specific position to be subordinate to the plant foreman. He did not file his claim until December, at which time the notice of claim filed was mailed to the employer on December 10. A response postmarked December 21 was received by the Department. The response was untimely. (Prior to 1983, the employer was required to notify the department within five days of the separation.) The claimant contended that the employer's failure to provide notice within five days of the termination date of August 15, established a presumption that his leaving was for nondisqualifying reasons. The Board disagreed. The Board said:

In the facts before us . . . the employer in responding to the notice of new claim filed and setting forth all the facts available to it, complied with the statutory mandates imposed upon it. The Department is equally under a mandate to consider such facts and render an opinion as the claimant's eligibility for benefits . . .

In Perales v. California Department of Human Resources Development (1973), the Appellate court held that because the presumption in Section 1256 was established to implement the public policy of prompt payment of benefits to the unemployed so as to reduce the suffering caused thereby (Section 100 of the UI Code), the presumption affects the burden of proof. To overcome the presumption the employer and the Department must prove that the claimant was discharged for misconduct in connection with his or her work by a preponderance of the evidence.

This is also the position in the following court decisions:

  • In Maywood Glass Co. v. Stewart (1959), the Court stated that the employer has the burden of establishing "misconduct" to protect its reserve fund.
  • In Prescod v. California Unemployment Insurance Appeals Board (1976), the Court held that the burden of disqualification is on the employer or the Department, and not the claimant.

The burden of proof is by "weight of evidence" which, simply stated, means that the evidence on one side is greater than on the other. For a discussion on this concept, see P-R-190. If the employer cannot show by weight of evidence that the claimant was discharged for misconduct, the claimant will be found eligible.

Sometimes, a claimant would be discharged because a government agency had directed the employer to do so, and the government agency would not give the employer a reason for such a direction. In the absence of such a reason, the employer would not be able to meet the burden of proof that the claimant was discharged for misconduct, and the claimant would be found eligible.

Example - Employer Unable to Meet Burden of Proof:

The claimant worked for an employer which was engaged in furnishing janitorial services to military installations. It was necessary for the claimant to work in various areas including those which were classified areas. The claimant was terminated because the employer was directed to do so by the defense investigative service. The service was unwilling to grant the necessary clearance to the claimant, and the employer was not furnished with the reason for such refusal.

The discharge was not for misconduct. The employer has not provided evidence to overcome the presumption of eligibility. The investigative service could have denied the clearance for a reason which would not be considered misconduct under Section 1256 of the UI Code.

Similarly a security guard may be denied a guard card, or a tow truck driver may be denied the permit to tow trucks by a government agency, and the claimant was discharged. If no reason was given for the denial, the discharge would not be for misconduct.

C. Condonation

Title 22, Section 1256-30(c), provides:

Causal Connection. To constitute a discharge for misconduct, there must be a causal relationship between the individual's act or acts of misconduct and the discharge. Condonation results when the employer does not, with reasonable promptness, exercise the right to discharge an employee who has engaged or participated in an act or acts of misconduct . . .

"Condonation" is forgiveness of a past wrong, fault, injury, or breach of duty. Condonation of an act by the employer does not mean that the claimant's act would not have been misconduct if the employer had discharged the claimant at the time the offense occurred; "condonation" merely means that the claimant has a valid defense to a finding of misconduct because the employer did not move promptly to discharge him/her, having chosen to forgive the claimant for whatever he/she did. Since "condonation" is a defense, it cannot be a reason for discharge.

If the employer alleges that the act for which the claimant was discharged took place in the past, but did not result in termination until some time later, the interviewer must:

  • Determine what the act was that allegedly caused the discharge, and whether the discharge would have been disqualifying if the employer had moved promptly to discharge.
  • If the act for which the claimant was allegedly discharged was not an act of misconduct, the defense of condonation is never applicable to the decision as there was nothing to condone in the first place.
  • If the act for which the claimant was allegedly discharged was an act of misconduct and would result in a denial of benefits for the claimant, then the interviewer must consider whether the separation was so remote from the act complained of that the employer could be regarded as having forgiven, or "condoned," the act.
  • If the employer did condone the act, there cannot be a causal relationship between the act complained of, and the discharge. Once the act has been condoned, the employer cannot later revive the act as the reason for discharge; the act of condonation has broken the causal chain. The interviewer must then look to the reason the claimant was discharged at the time the claimant was discharged. If the employer contends that the prior, condoned, act is the reason, then "condonation" becomes a defense to a finding of misconduct on the basis of that prior act.

Example - Condonation Breaks Causal Chain

In P-B-192, the claimant fought with a co-worker in the employer's shop. The claimant and the employer had a conversation after the fight, but the employer did not move to terminate the claimant. A year later, while the claimant was on vacation, his co-workers complained to the employer, contending that if he came back to work after the vacation, they would leave. The employer alleged he had discharged the claimant for misconduct, based on the co-workers' statements, because the claimant was a "troublesome employee."

In its decision, the Board found:

Had the claimant been dismissed after the altercation with the co worker whose complaint set his discharge in motion, that termination would have been for misconduct . . . . But, though this incident may have had some influence on the employer's decision to discharge the claimant, it was not the basic reason for the discharge.

The Board found that there was no direct causal relationship between the fight and the termination; the discharge was therefore not disqualifying as the discharge did not stem from an act of the claimant's, but from co-workers' complaints.

Exceptions to rule of "prompt discharge"

It is possible that an employer may move to discharge a claimant immediately but have the actual termination delayed for reasons beyond the employer's control. This could happen, for example:

  • When the employer, under terms of a collective bargaining agreement, had to take certain formal steps before discharging an employee, or
  • The employer might have to replace the employee before he or she could discharge the employee and experiences difficulty in securing the replacement.

In such cases, there would still be a causal relationship between the discharge and the alleged act of misconduct.

Example - Discharge Delayed

The claimant, a guard, left his post about half an hour early. He also had another guard punch out his timecard at the regular quitting time. He was then interviewed and questioned by the employer but not discharged, merely told to return to work. The employer then began to arrange for guard services from a plant protection service. However, the plant protection service could not secure the needed personnel for 13 days. When the service was available, the claimant was discharged and told that it was because of his act two weeks earlier.

It might appear that the delay in discharging the claimant served to remove the misconduct as the proximate cause of termination. However, although the employer did not discharge the claimant at the time of the incident, the evidence shows that the employer upon learning of the incident interviewed the claimant and others involved and immediately initiated arrangements to replace them and did so as soon as the arrangements could be completed. The discharge was for misconduct.

D. Discharge During Leave of Absence or Temporary Layoff

Title 22, Section 1256-1(e)(2) provides:

Leave of Absence or Layoff. Although an employee neither performs services nor receives wages during an authorized true leave of absence or a temporary layoff due to lack of work, the employment relationship continues because the work will resume at a later date, and there has been no termination of employment. A layoff for an indefinite period, or for an unreasonable length of time, or where there is no contemplation that the employee will resume his or her work in the future, may sever the employer-employee relationship. In such cases there can be no leaving after the date of such a layoff.

The "layoff" or "leave" considered in this section is the temporary layoff or true leave of absence that does not sever the employer-employee relationship.

In P-B-472, the Appeals Board addressed a severance of an employer-employee relationship that occurred after the claimant had given notice in the third week of May to be effective June 29. The employer terminated the claimant effective May 29, regarding him as a "lame duck" employee for the balance of the notice period. The employer did not pay the claimant through the notice period. The Board considered the claimant to have been discharged for reasons other than misconduct.

Procedures developed from P-B-472:

  • Claim filed while claimant on leave or layoff: The "most recent work" is that work immediately preceding the filing of the claim. If the reason for leaving that work is not disqualifying, nothing that happens later will cause that same separation to become disqualifying (unless, of course, there is false statement present in the original interview).

Example: Claimant A was placed on an employer-initiated leave of absence because the employer had heard gossip that the claimant had infectious coreopsis and he was afraid his customers would contract it. Claimant A is not incapacitated and has a labor market for work where he does not have to be in direct contact with the public, although the only available work with the employer is in public contact. The claimant was unaware of his illness but later found he had the disease, which was diagnosed and treated after his leave started. While Claimant A was on leave, the local police finished an investigation into theft at the employer's business and Claimant A was charged with burglary, to which he pleaded guilty. The employer promptly discharged him before his leave was up. The later finding that the claimant had done something for which he could have been discharged, had the employer known about it at the time of separation, does not retroactively change the prior decision to an MC disqualification.

  • Claim filed after end of leave or layoff: If the claimant files the claim after the leave has ended, the cause of his/her unemployment at the time the claim is filed is the failure to return to the employer at the end of the leave or layoff. The reason why the claimant did not return to work must be determined and a decision issued on the basis of that reason, regardless of why the claimant went on layoff or leave in the first place.

Example 1 - Employer will not allow claimant to return at end of leave: Claimant B advises the employer halfway through a medical leave that he has infectious coreopsis but should be able to return on the date previously agreed. When claimant B’s leave expires, Claimant B has recovered and has submitted a complete medical release, but the employer tells Claimant B that he cannot return to work because he is afraid Claimant B will have a relapse. No further leave is available.

There is a separation issue raised (the employer's failure to have the claimant return to work). In the example given here, it would be a discharge for reasons other than misconduct.

Example 2 - Claimant refuses to return at end of definite layoff or leave: If the claimant has refused to return at the end of the layoff or leave, the issue is either VQ or SW. Please refer to the appropriate volume under the reason given for refusal to return.

E. Disciplinary Suspension

Title 22, Section 1256-1(e)(3) provides:

A disciplinary suspension of an employee for a specific period of time raises a separation issue if the employee files an unemployment insurance claim during the period he or she is suspended. Whether or not the claimant will be eligible depends upon the reason the claimant was suspended by the employer. If the claimant was suspended for wilfully and knowingly violating reasonable employer rules, the claimant will be disqualified on the basis of a discharge for misconduct connected with the work.

Example - Disciplinary Suspension:

In Morris v. CUIAB (Appellate Court Decision, 1973), the claimant, an employee of the U.S. Postal Service, received a Notice of Proposed Adverse Action for 1) threatening to do bodily harm to supervisors, and 2) conduct unbecoming a public employee. Both discharge and suspension were recommended as options for action on the part of the Postal Service. After exhausting his administrative appeal rights, the claimant was put on a suspension without pay. He filed a claim for benefits.

The claimant contended that the word "discharge" as used in Section 1256 of the UI Code evidences an intent on the part of the employer to effect a complete separation between the employer and the employee, which the word "suspension" does not connote. The court rejected this contention, stating that while the claimant's interpretation may be "superficially sustainable from a literal interpretation of the statute, it did not comport with the underlying purpose of the legislation." The court continued:

To state that whether the claimant was suspended or discharged, the end result is that he has been disciplined and unemployed as a result of his own misconduct . . . a person who has been in definitely suspended for misconduct has become unemployed just as surely as one who has been discharged.

F. Grievances and Arbitration

Title 22, Section 1256-41, under "Comments" after EXAMPLE 1, provides in part:

The use or failure to use or outcome of any grievance or arbitration procedure is not relevant on the issues. (i.e. whether a claimant has been discharged for misconduct.)

The grievance procedure may affect any potential reinstatement, not the reason why the claimant was discharged in the first place.

Example - Failure to Use Grievance Procedures:

In P-B-353, the claimant became seriously ill and was taken to a hospital, where he underwent emergency surgery. His mother called the employer, explained the circumstances of his absence, and asked that any wages due to him be paid immediately. She talked to several officials of the plant, and was led to believe that her son's check could only be released if he were to resign or if she could obtain a medical clearance for him through the medical department of another of the employer's plants. She told the employer that she did not have the authority to resign for her son, and that she could not personally contact the medical department because of her son's condition. Finally she instructed the employer to terminate the claimant.

After his release from the hospital but before his release to return to work, the claimant went to the plant. He believed his termination was unjust. However, he did not request reinstatement or a leave of absence although the collective bargaining agreement provided for both a leave of absence without pay and a grievance procedure.

At the hearing, the employer contended that the claimant's failure to request reinstatement constituted a ratification of his mother's previously unauthorized act. In its decision allowing benefits, the Board stated:

. . . there can be no doubt that the claimant's mother did not purport to act as agent for the claimant in terminating the employment relationship. She purported to act for the claimant only to the extent of obtaining such wages as were allegedly due and owing to him for services rendered and specifically informed the employer of her lack of authority to resign on his behalf . . . . Nevertheless, the employer did effectuate an unequivocal termination . . . . This unilateral act by the employer . . . in our opinion constituted a discharge . . . It is our further opinion that the claimant's failure to subsequently request reinstatement or protest the employer's action through established grievance procedures is immaterial as far as having any effect on his potential eligibility for benefits . The employer's action was final, the employment relationship was terminated . . . and the claimant was not obligated to pursue the matter any further . . . .

On the other hand, the fact the claimant has filed a grievance because of the discharge or that the discharge is under arbitration does not necessarily mean that the discharge is not for misconduct. The determination of misconduct should not be influenced by the fact the claimant has filed a grievance or the discharge is under arbitration.

Example - Discharge under Arbitration:

In P-B-188, the claimant had been discharged for repeated failure to follow instructions. Her discharge was under arbitration in accordance with the terms of the union-employer contract. It was the position of the claimant that, although there may have been a formal discharge, since the question of her discharge was pending under an arbitration proceeding, she had in fact not been discharged. The Board disagreed:

There can be no doubt from the evidence that the claimant was unequivocally discharged . . . . The fact that the propriety of her discharge was the subject of arbitration under the collective bargaining agreement has no effect upon the power of this board to decide the issue of whether the claimant, in the first instance, had been discharged for misconduct connected with her work. It is immaterial that, as a result of the arbitration proceeding, the claimant may be reinstated with the employer. The function of the arbitration panel and the function of this board differ in purpose and result . . . . To adjudicate an appeal fairly and impartially, this board must make an independent evaluation of the evidence before it without regard to the outcome of the grievance procedure. Furthermore, in such evaluation, we are not controlled or influenced by the fact that a discharged employee did or did not initiate any grievance procedure under a collective bargaining agreement to bring about a reinstatement . . .

Like the Board, in determining the claimant's eligibility, the Department should not be controlled or influenced by the fact that the claimant has or has not initiated any grievance procedure regarding his or her discharge.

G. Illegal Activities

Law breaking is not necessarily misconduct under the UI Code. Many types of lawbreaking could be indulged in by an employee without the lawbreaking necessarily constituting misconduct. On the other hand, misconduct is not necessarily an infraction of law. Also, to sustain a verdict of guilty in a criminal proceeding, there must be proof "beyond a reasonable doubt," whereas to sustain a finding of misconduct, the proof need only be such that a reasonably intelligent person would reach the conclusion, based on all the facts, that the claimant did in fact commit the act complained of by the employer.

An employee may be detained on a suspicion of lawbreaking and the employer terminated him for that reason. Detention on a suspicion of lawbreaking is not equal to guilt of wrongdoing on the individual's part. Therefore, the fact alone that the claimant was detained by the authorities on suspicion of committing the act complained of by the employer would not establish that the claimant had in fact committed the act. On the other hand, it is possible for a person to be released under circumstances which tend to establish his guilt. For example, the person may make restitution and the employer refuses to prosecute. In such cases, all the facts, including the circumstances of his release, must be taken into consideration.

If the claimant was arrested and tried for the violation of law complained of by the employer, the court's verdict will be conclusive as to the guilt or innocence of the claimant. However, the verdict of the court will not be conclusive of misconduct. The determination of misconduct will be governed by the principles discussed in this Guide.

  1. Illegal Activities on the Job

    Title 22, Section 1256-43, provides:

    An employee's on-the-job criminal act or other violation of the law is misconduct if the act is substantial in nature, regardless of the employer's prior warnings or reprimands. An employee's on-the-job criminal act or other violation of law is not misconduct if the act is minor in nature, unless the employee commits after prior warnings or reprimands by the employer for similar acts.

    Generally, if the claimant's violation of law occurs on the employer's premises and/or during hours when he/she is supposed to be engaged in activities for his/her employer and the violation is substantial, the claimant's actions will constitute misconduct. Refraining from illegal activities while engaged in work for the employer or while on the employer's premises is an obligation owed the employer. Quite frequently, the employer would be liable for a civil suit because of the claimant's illegal activities. Even in the absence of this liability, damage of the employer's interest due to disruption of working activities and adverse publicity could constitute misconduct.

    Sometimes the claimant's proper performance of his/her duties will depend on his/her observation of certain laws. Thus, a vehicle operator must observe traffic laws; an interstate truck driver must observe the regulations of the Interstate Commerce Commission; a bartender must observe the regulations of the Department of Alcoholic Beverage Control. If the observance of certain laws is requisite for the performance of the claimant's duties, the claimant, in violating those laws, will at the same time be violating standards of behavior which his or her employer has a right to expect.

    Example - On-the-Job Violation of Law:

    The claimant, a cab driver, had broken the law by frequent and repeated acts such as speeding and making illegal "U" turns. His violations in this respect were repeatedly called to his attention. Nevertheless, despite his knowledge that he was following a course of action prejudicial to his employer's interest, he continued to operate the cab in complete disregard of the laws governing its operation. In entering upon the contract of hire the claimant by the very nature of his occupation assumed the duty and obligation to operate the cab in accordance with the manner prescribed by law and the employer's safety regulations. Since the claimant repeatedly disregarded his obligation to the employer, his resulting discharge was for misconduct.

    What if the violation stems from the employer's express orders or tacit approval? For example, a truck driver may be ordered by his employer to load his truck beyond legal weight limits. Or, even if the employer doesn't give a direct order, it may be well known that the employer approves of and encourages overloading (which could mean more profit per run for the employer.) On this issue, Section 1256-43(c) of Title 22 states:

    . . . However, in no event will an employee's criminal act or other violation of law be misconduct if the employer had ordered, participated in, or condoned the employee's actions.

    What about warnings or reprimands? Do they have to be considered? If the violation is substantial, the discharge would be misconduct even in the absence of prior warnings or reprimands. On the other hand, if the violation is minor, there is no misconduct unless the claimant commits the act after prior warnings or reprimands for similar acts.

  2. Illegal Activities off the Job

    Section 1256-43(b) of Title 22 provides:

    Criminal acts or other violations of law are not necessarily misconduct. For example, an individual's criminal act outside of working hours and away from the employer's premises usually would have no connection with the work and would not be misconduct under Section 1256 of the code.

    Based on this regulation a discharge for an illegal act off the job would usually not be for misconduct because it would not be connected with the work. There are, however, certain circumstances under which a discharge for off-the-job illegal activities is considered for misconduct. See Off-the-Job Conduct, MC 350, for a detailed discussion on illegal activities committed by the claimant while off duty.

H. Refusal of Work Distinguished from Discharge

Title 22, Section 1256-30(a) provides in part:

. . . An individual who accepts future work but engages in conduct which causes the employer to prevent or prevents commencement of this work, has not been discharged for misconduct but the issue is raised of whether the individual has refused suitable work without good cause and is disqualified under subdivision (b) of Section 1257 of the code.

The same section, under "Comments," provides:

Subdivision (a) refers to the distinction between a discharge for reasons constituting misconduct and a failure to accept suitable work because of acts of misconduct. On the one hand, the employee is already working and is discharged for engaging in an act or acts which are misconduct under Section 1256 of the code. On the other hand, the misconduct occurs before the claimant has started working for an employer. In the latter case, the claimant is disqualified under subdivision (b) of Section 1257 of the code, while in the former, the disqualification is based on Section 1256 of the code.


A received a referral from a private employment agency. After an interview, A was told to report for work the following day. Before reporting for work, A had "a few drinks." Upon reporting for work, A was told by the foreman that there was no work because A had been drinking.

A has not been discharged, but instead has refused an offer of work. The issue is whether A is disqualified for refusing an offer of suitable work without good cause, not whether A has been discharged for work-connected misconduct.

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