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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6250
Experience:  Significant experience in all areas of employment law.
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I worked for a software support consulting company for 15 years

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I worked for a software support consulting company for 15 years and 80% of the time is working from home. This is so typical in the high tech software consulting business. The company got merged to another company and after 1 year they have totally ban work from home and all our duties must be done in the main office, which is about a 2 hour commute one way to the office. The company only wanted a specific region to work from home and the rest that were hired out of state can continue to work in their home offices. I totally refuse to this new policy and wanted to retain my flexible hours and schedule because I have been so accustomed to this hours and work tempo. I have been productive by doing my work remotely and has been successful from it by accomplishing tasks and projects. My question is if I get fired, can I get unemployment insurance? Thanks....John
Submitted: 7 months ago.
Category: California Employment Law
Expert:  ScottyMacEsq replied 7 months ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Can you tell me what state this is in reference to?

ScottyMacEsq :

Did you see my follow up question to your issue?

ScottyMacEsq :

My apologies, but I must assist the other customers that are waiting. Once you respond to my follow up question, I will respond as soon as I can. Please note that I may be assisting other customers or otherwise out of the office (depending when you respond). Thank you.

Customer:

This is in CA.

ScottyMacEsq :

Thank you. There's actually a separate category for California employment law, so I will designate this question as such and opt out (I'm not an expert in CA employment law). Please be patient, and an attorney that is will assist you soon.

Customer:

Thanks.

ScottyMacEsq :

You're welcome. Please refrain from responding, as that locks me back into the question.

Expert:  Patrick, Esq. replied 7 months ago.
Hi there. I am a California licensed attorney and am more than happy to assist you.

In general, an individual in California will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (this is usually only an issue if you have been employed for a very short period of time), 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 would be the last of the above-stated criteria--out of work "through no fault of your own." Typically, when an individual quits his or her job or refuses to perform the job tasks assigned to them (i.e. commutting to a far away office location), the EDD reasons that they are unemployed "through fault," since they made the voluntary decision to become unemployed.

The above noted, California law prescribes for certain very limited circumstances in which an individual can quit his or her job with "good cause" or refuse a modified assignment and still remain eligible for benefits.

One such exception is in circumstances where the claimant's job requirements are suddenly changed to required the claimant to travel large distances to attend work. In such cases, the EDD often determines that the claimant quits with "good cause" or that they are fired due to no fault of their own because they cannot engage in the commute. To this end, the EDD states in its "Benefits Determination Guide" as follows:

"Because travel time is subjective, depending upon the claimant's situation and labor market area, there is no hard-and-fast answer for "how much time should the claimant be required to spend in traveling to reach work?

In P-B-232, the claimant was employed as a telephone operator in Salinas, working 8 a.m. to 5 p.m. She walked to and from work. The employer had to reduce its staff and the claimant could have "bumped" into the Monterey office 24 miles away, working 1:30 p.m. to 10:00 p.m. In holding the claimant eligible, the Board stated:

. . .[S]he would have been required to spend approximately three hours per day in commuting time at what would undoubtedly have been a fairly substantial cost. In addition, the claimant would have had to make other arrangements for the care of her child. Undoubtedly, this too would have involved a considerable extra expense in view of the required additional three hours away from home and the fact that evening care would have to be provided. Considering all of these factors, it is our conclusion that the claimant had good cause for leaving her employment."

As pointed out in P-B-25:

"Travel time should not be considered in a vacuum but in context with all other factors such as distance, cost of commuting, the wages paid for the work, the nature and permanence of the job, the nature and permanence of any travel difficulties, and numerous others."

See here for a further discussion of the circumstances under which travel time or distance may constitute good cause for an employee to quit and retain their right to collect UE benefits: http://www.edd.ca.gov/uibdg/Voluntary_Quit_VQ_150.htm#Time,%20Distance%20and%20Cost

So to summarize, while an individual typically cannot quit or disregard a change in job assignment and remain eligible for UE benefits, excessive travel time or distance can under some circumstances constitute "good cause" for an employee to quit or refuse a job assignment and collect benefits.

As the EDD notes, these circumstances are never viewed in a vacuum and the hardship of the commute must be considered in context. Assuming you can prove that the commute poses a substantial hardship, which would seem to almost certanloy be the case with a 4 hour daily commute, you would have a very good argument that you retain eligibility despite being let go or quitting under the circumstances.

Regardless of whether you quit or refuse to commute and let them fire you, you will want to make sure you document in writing your concerns regarding the commute so that there is a clear paper trail supporting this as the reason for your action. So, it would be wise to send emails and/or letters explaining what the commute will do to you and your family and why it is not possible.

Ultimately, it may be better to have them let you go, since claimants who voluntarily quit are always tasked with overcoming the initial burden of proving they did so with adequate cause. However, an individual in your circumstance would very likely retain eligibility for benefits either quitting or letting your employer terminate you for not commuting.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
Expert:  Patrick, Esq. replied 7 months ago.
Were you able to view my answer?
Customer: replied 7 months ago.


Yes. I read it and I am very satisfied with your response. Thanks.

Expert:  Patrick, Esq. replied 7 months ago.
You are very welcome! If you do not have any further questions for the time being, please be so kind as to provide a positive rating for my service so that I may receive credit for assisting you.

Very best wishes and have a pleasant weekend.
Patrick, Esq., Lawyer
Satisfied Customers: 6250
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you

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