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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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I was terminated from wrk for sleeping on the job. One of

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I was terminated from wrk for sleeping on the job. One of my coworkers was given a warning when he fell asleep on the job. There was selective enforcement of company policy. Company policy states that if u fall asleep at wrk just 1 time, u will lose your job; do I have grounds for an unemployment claim appeal? I was fired my first time doing it, my coworker was not fired his first time doing it. He was warned. Y
Hello and thank you for entrusting me to answer your question. I am very sorry to hear that you were let go under these circumstances.

To answer your question directly, "yes," I do believe that the circumstances you describe would give you grounds for an unemployment claim appeal.

Generally speaking, an individual must be terminated for "misconduct" in order to be disqualified for benefits. With regard to the definition of misconduct and violation of employer rules and policies, section 1256-42(b) of Title 22 of the California Code of Regulations 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 above, an individual in your circumstance should not be found to be terminated for "misconduct" for falling asleep once because you received no prior reprimands on this issue and your violation of policy was not "willful" (it's pretty hard to "willfully" fall asleep on the job).

Assuming that you are actively seeking work and able and available to accept new work, there shoudl be no other basis to deny your claim. Thus, an appeal should be succesful argued pursuant to the above.

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, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

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

Very best wishes to you.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

For violation of a rule to be "willful misconduct", the rule must be fairly and consistently applied (Spirnak v. UCBR, 557 A.2d 451 (1989)). If your employer has tolerated rule-breaking in the past, your breaking the rule now may not be considered "willful misconduct" (Penn Photomounts v. UCBR, 417 A.2d 1311 (1980)).

Thanks for your help. When I go before the appeals court, can I use the above paragraph? I found it but the cases are based out of state. Can this be used in a CA court?


Thank you for your reply. Unfortunately, the out of state case will be irrelevant in your proceeding. The principle is establishes, however, is equally recognized under California law. An employer rule that is selectively enforced indicates that the rule is not reaosnable and/or that violation of the rule is unlikely to violate the employer's interests--otherwise the employer would always enforce it.

You can read more about disqualification of benefits for misconduct here:

I hope this helps, and good luck.

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