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Brandon M.
Brandon M., Counselor at Law
Category: California Employment Law
Satisfied Customers: 12235
Experience:  California licensed attorney
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My son was dismissed for what they cited as misuse of company

Customer Question

My son was dismissed for what they cited as misuse of company property. It was using the computer. Now everyone any where near him uses their computer for personal items but he was the only one terminated. At no time was it ever mentioned that his work was not done on time or properly. They then denied his unemployment. Should he be eligible for his unemployment?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Brandon M. replied 2 years ago.
Hello there:

Why does he believe that he was the only one fired?
Customer: replied 2 years ago.
Because he still has contact with people that he worked with and he was the only one.
Expert:  Brandon M. replied 2 years ago.
Tell me a little bit more about that. Why would that make any difference?
Customer: replied 2 years ago.

Not sure I understand what you are asking for.

Expert:  Brandon M. replied 2 years ago.
I apologize if I was unclear. You said he was the only employee fired "Because he still has contact with people that he worked with and he was the only one." I am trying to understand, for this employer, the significance of having contact with people that your son worked with.
Customer: replied 2 years ago.
I was just saying that he knows that he was the only one fired because everyone else is still working. He knows this because he is still in contact with his fellow workers.
Customer: replied 2 years ago.
He knows he was. As I said he has spoken to others that worked with him and no one else is gone.
Expert:  Brandon M. replied 2 years ago.
Let me phrase it differently... I am not asking why your son believes that the total number of people fired is one. I understand that no one else was fired. My question is why he believes no one else was fired. in other words, why was no one else fired? In other still words, why was he singled out?
Customer: replied 2 years ago.
We do not know. That is a good question. He felt that he was being singled out but we let it go. Then when he was assigned a new position the person that he worked with made a comment to him about how he was constantly being riden. We are guessing that it is either because he was hired because he knew someone that worked there or because they were angry with the person that worked there but he was too high up to do anything to so they took it out on my son.
Expert:  Brandon M. replied 2 years ago.
In which state is this occurring?
Customer: replied 2 years ago.
California
Expert:  Brandon M. replied 2 years ago.
California is an employment-at-will state, which basically means that either the employer or the employee can modify the employment relationship at most any time and for most any reason. For this reason, unlike some other jurisdictions, there is no presumption that the employer has an unequal bargaining position, so there are no extra protections in place for the employee; if either side does not like their arrangement, they have the right to quit. The employee can quit the relationship if he does not like the employer, and the employer can quit the relationship if she does not like the employee. So "yes" an employer can generally fire one employee only when the other employees are engaged in the same conduct. It's not fair, but it's generally legal. If the employee doesn't like how the employer treats its employees, the employee can quit.

This is not without limitation. Some reasons for modification are illegal; for example, it is illegal to terminate an employee because of their familial status, race/color, gender, religion, ethnicity, age (if over 40) disability, genetic information, or in retaliation because the employee is a whistle-blower. It is not illegal, however, to modify or terminate the employment for reasons that are simply unfair or ill-informed.

Some companies have internal procedures for employee pay reduction or termination. Usually, these procedures exist as a company safe-guard to avoid a lawsuit alleging termination based on an illegal reason. However, when these procedures are incorporated into an employee manual and distributed to the employees, it can create a guarantee of sorts upon which the employee may legally rely; so, for example, it may create an enforceable guarantee that the employee will only have his salary reduced for certain reasons or under certain conditions.

Sometimes there is a contract in place with the employee. That too can create rights for the employee; however, an action for violation of an employment contract is considered a suit for breach of contract.

A termination for cause will generally preclude the employee from collecting unemployment; however, if it can be demonstrated that there was an illegal motive for the termination, the employee can still collect.

I would also argue that, if the employer allows all of the other employees to stay employed when they are guilty of the same behavior, then the behavior isn't the real reason for the termination---the employer simply does not want their unemployment insurance rates to go up so they have fabricated the cause for termination. Under those circumstances, a claims denial should be appealed.

I understand if you have any follow-up questions; let me know if I may be of further assistance. Thank you.
Customer: replied 2 years ago.
It has been appealed and the hearing is the end of the week. I just wanted to make sure that I understood the use of "misconduct" which is the reason for denial of UI. My thought is that it is no misconduct if it is standard practice to allow it and to only pick and choose who gets terminated. Is that correct?
Expert:  Brandon M. replied 2 years ago.
Close, but not exactly. The question is whether the employee was laid off for reasons no fault of his own. If the employer has tolerated this activity and has not terminated other employees engaged in the same behavior, the evidence would tend to suggest that the employee is not actually "at fault" because it was understood that the employer tolerates the behavior. If the employer tolerates the behavior, there is no fault.
Customer: replied 2 years ago.
So the fact that his supervisor told him the day before they let him go that he understood why they used the computer because they were getting all of their work done and there was nothing for them to be doing. Is a pertinent fact?
Expert:  Brandon M. replied 2 years ago.
I can't responsibly say how any specific statement would play into any specific case unless I was actively involved in the case; however any evidence that your son has to show that the computer activity was the actual catalyst for termination should be presented.

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