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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Can I appeal Unemployment disqualification for misconduct?

Customer Question

  I was employed with a hospice company for a couple years and performed well and received multiple awards. Unfortunately, due having four deaths in my family in a period of 3 years took a toll on my job performance. Especially, working for a hospice. Three times i have made mistakes which caused delay in a patient receiving service. Each mistake happened during the time I had a death in my family. It was very stressful, and it was very hard to focus during those times. I was given written warnings and each time I worked hard to improve, pay attention to detail, and be extremely careful and cautious not to make another mistake. Especially because I rcvd a final warning and was told that if I made a similar mistake, it could lead to termination. I made a mistake again after a few months. However, I strongly disagreed that this time was my mistake. My manager was on vacation and we were all instructed that the lead rep would be in charge of the department for any needs of a manager. I needed help in situation (we had no admission nurse available) and he gave me direction which I followed. He told me "Instead of sending a nurse, ask the physician scheduler to send a doctor to determine hospice appropriateness. And, even if we had a nurse today, the nurse cant admit the patient because the doctor has to determine hospice appropriateness." I followed his direction and the physician scheduler confirmed to send the doctor the same day. Because I was told a doctor will see the patient, I went ahead and closed the task to send a nurse. Afterall, he said the nurse couldnt admit the patient anyway. Almost 3 wks later, I was told that I should not have closed the task to schedule the nurse. The Doctor did see the patient but there was no other follow up becuase the task to schedule an Admission nurse was closed. I was also told by my manager that I should not listen to everything my lead directs. I disagreed and stated I needed help form a superior and he was the acting manager that day. She replied that ive been in the department longer and should know better. I was also told that our doctors dont give report after they see the patients, unlike admission nurses, so I should not think that the doctors visit should be in lieu of the admission nurses visit. I was terminated the next day. Does this constitute as misconduct if I only followed direction from the lead/acting manager and followed his direction to the best of my understanding and interpretation?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question. First, let me say that hospice work is some of the most difficult but important work out there, and I commend you for it.

Unfortunately, though, the laws in this area strongly favor the employer (it is, after all, the large corporations that are able to lobby the state legislature). Absent an employment contract guaranteeing you employment for a specified period of time, you are what is known as an "at will" employee. 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 your employer is free to terminate you for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or in retaliation for engaging in certain legally protected conduct (for example, electing to take FMLA protected leave). This means that you could have followed the EXACT orders given to you by the acting manager and still be terminated for doing exactly as you were told.

It's an extremely unfair rule, but it is premised on the notion that, as an employee, you are free to quit your job at any time, and so the employer should be allowed to also terminate the employment at any time.

If you have any questions or concerns whatsoever regarding my answer, please do not hesitate to ask for clarification.

I realize this is not at all what you were hoping to hear, and I wish that I could provide you with better news. Nonetheless, I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Please abide by the honor code of this website by kindly clicking on the GREEN ACCEPT button if my answer has been helpful to you. Thank you very much.
Customer: replied 5 years ago.
Thank you for taking the time to provide me with this information. However, what do you think my chances are with overturning the EDD disqualification. I am appealing it at this time. Does this mean that just because I was hired "at will" means that any employer who hires at will and fires for any reason, even if the employee is not at fault that the employee can never receive unemployment benefits? Regardless of how unfair the termination or regardless of how unfair the "at will" law is? So, anyone that is hired "at will" can never receive unemployment if laid off/terminated (unless descrimination etc)?
Expert:  Patrick, Esq. replied 5 years ago.
You know, that is my fault for not addressing that part of your question more directly. I focused in on your last sentence "Does this constitute as miconduct..." So while my response is relevant to your inquiry (and I hope helpful), I did not address how you would go about appealing your denial of UE benefits for misconduct. Let me do that now.

UE Code Section 1256-42(b) provides:

A discharge by an employer of an individual for violation of an employer rule is for misconduct connected with the work if the rule is reasonable, the individual knew or should have known the rule, and the violation is wilful or wanton, material, and substantially injures or tends to injure the employer's interests.

If the individual has previously violated a minor employer rule or has previously violated the same or a similar employer rule with the knowledge of the employer, a discharge is for misconduct connected with the work if the violation substantially injures or tends to injure the employer's interests and has been preceded by prior warnings or reprimands for previous violations, or if the individual's course of conduct as a whole demonstrates a substantial disregard of the employer's interests following prior warnings or reprimands for violations of other employer rules.

In consideration of the foregoing, an employee's violation of a company rule would not by itself qualify as misconduct. It would only be misconduct if all of the following conditions are met:

- The rule is reasonable.
- The claimant knew or should have known the rule.
- The violation is wilful and wanton.

So, in order to successfully appeal the denial of your claim, you would need to disprove any one of the above elements. Was the rule an unreasonable one? Did you have no way of knowing that you were actually breaking the rule? Did you have GOOD CAUSE for breaking the rule? (If you did, the EDD will not find the violation to be willful).

I hope that this better answers your question and I wish you the very best in resolving this matter.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Expert:  Patrick, Esq. replied 5 years ago.
Also, I should add that, based upon the particular facts you describe, it would seem as though you have a very strong argument that the violation was not willful because you believed you were following the direction of your superior.
Customer: replied 5 years ago.

Thank you again for your quick reply. I was researching the same information as well. What brings me worry is the "At Will" labor law of California. However, going back to appealing "misconduct," and if I only have to disprove "one" of the following, then I think I have a good chance of overturning the EDD disqualification. However, I dont know now if the decision will only be based now on "breaking a reasonable employer rule" or if decision may also be based on the "at will" law. If it is just "breaking a reasonable employer rule." then this is what I think based on if EDD will only consider the following:


- The rule is reasonable. (Itdo think that the employer policy/rule to follow is reasonable)

- The claimant knew or should have known the rule. (Yes, but I had poor judgement and listened to the lead/acting manager and followed his direction. Also had poor judgement during deaths in the family, and that is when my mistakes happened).

- The violation is wilful and wanton. - (Who in their right mind would wilfully violate an employer rule unless he wanted to get fired? - I did not wilfully nor intentionally break the rule).


I think the 2nd and 3rd reasons are in my favor. Thanks for giving me the confidence to fight this one! Though i still kinda worry about the "at will law"

Expert:  Patrick, Esq. replied 5 years ago.
"Though i still kinda worry about the 'at will law'"

I didn't mean to confuse you with that. The at will law relates to your other question (or at least what I thought was your other question), which is whether your employer was legally permitted to terminate you under the circumstances that it did. Just because an employer was free to terminate you does NOT mean that you are not qualified to colelct UE benefits. The tests for judging each are quite different.

I think you are confused because I was initially confused by what you were asking. Ignore the "at will" stuff for now. If you were denied UE benefits due to "misconduct," then the issue would appear to boil down simply to whether you willfully broke a reasonable employer rule.

Again, very best regards, and please kindly remember to "accept" my answer if you have found it helpful. Good luck with your appeal.
Customer: replied 5 years ago.
Thank you for the clarification. You're the BEST!

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Expert:  Patrick, Esq. replied 5 years ago.
Thanks for the compliment. Have a wonderful weekend, and if you ever need to use this service again, please feel free to request me by beginning your question "To LegalPro54:"

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