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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12019
Experience:  Significant experience in all areas of employment law.
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Hello. My employer keeps writing me up with issues that are

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Hello. My employer keeps writing me up with issues that are not true and are one-sided. This is the 2nd time and it makes me upset. He also keeps threatening to fire me. Is he doing this so I won't get unemployment benefits or something when he does fire me? All of the issues on his written reports are not true and I have documentation (email from clients) to prove my side. How do I counter his statements without getting yelled at? I typically am easy-going, get along very well with people I work with, and non-confrontational. I feel uncomfortable having to argue with the boss.
Hello and thank you for entrusting me to answer your question. I am very sorry to hear that you are in such a difficult position with your employer.

As you may or may not already be aware, absent an employment contract guaranteeing employment for a specified period of time, employment in the state of California is presumed to be "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other."

What this means is that an employer is free to terminate employees for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law. So, employers typically retain the right to terminate employees even if their criticisms of the employee's performance are not justified.

With regard to your eligibility for unemployment benefits, an employee will typically only be disqualified for "misconduct." Simply making errors or mistakes on the job does not qualify as misconduct. However, Title 22, Section 1256-38(b)(1) does provide:

"[M]isconduct 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."

As this code section makes clear, only performance issues relating to "knowing and willful" deviations from employer policy and assigned tasks will result in disqualification of benefits. Under the circumstance you describe, a finding of "misconduct" would be very, very unlikely.

If anything, an employee in your circumstance may wish to create a written record of your desire to learn and improve. Simply an email along these lines indicating that you are dedicated to the position and to meeting your employer's expectations is something that you could turn around and show the EDD, in the event that you are let go and your UI claim contested, that would help to demonstrate that it was not through a willful disregard of company policy that you were disciplined and ultimately let go.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you so much. I am giving a positive rating. Your information have been very, very helpful.


You are very welcome. It was my pleasure to answer your question this evening. Feel free to contact me with future questions by beginning your question "To Legalpro54..."

Have a good night.