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In general, an individual will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (either $1300 in one quarter of their "base period," or at least $900 in their highest quarter and total base period earnings of 1.25 times their high quarter earnings), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

At issue in your circumstance is the final criteria--unemployed "without fault," which is defined as unemployed for reasons other than "misconduct." In general, Title 22, Section 1256-38(b)(1) provides: "Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct."

However, section 1256-38 goes on the state: "However, misconduct exists if inability, incapacity, or inefficiency is due to one's willful failure to perform to the best of his or her abilities."

Thus, if an employee's inadequate performance is the result of circumstances within his or her control and he or she does nothing to improve the performance, there is a willful failure to perform adequately which is misconduct.

It is therefore necessary to distinguish between those cases where the claimant's assignments were beyond his or her capabilities and his or her performance was to the best of his or her ability, and those cases where the claimant knowingly and willfully failed to perform to the best of his or her ability.

So, pursuant to the above stated law, an employee would simply have to demonstrate that they were performing to the best of their ability and that any performance issues were unintentional.

Assuming an individual applying for UE benefits can prove that performance issues were unintentional and they otherwise meet the remaining criteria set forth above, they should be eligible for benefits.

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