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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12801
Experience:  Significant experience in all areas of employment law.
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My son-in-law works part time (approx 30 hrs/wk) and attends

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My son-in-law works part time (approx 30 hrs/wk) and attends college. Currently, his work schedule complements his school schedule, however, his supervisor informed him his position is being changed to full time (he has 5 weeks left in his school term). He was offered another part time position in another location requiring a significantly longer commute which he agreed to accept. However, he was just notified that position is not available to him after all since he is on probationary status. He was told either he has to accept the full time position at the current location or quit his job and must decide within 2 weeks. He has been employed for 1 1/2 years. His supervisor said he could talk to Human Resources (and he will). This is a national corporation with many satellite locations. He definitely wants to continue working. Under these circumstances would he be eligible for unemployment under California law?
Hello and welcome back to Just Answer. Thank you so much for entrusting me to answer your question. I am quite sorry to hear that your son is being forced out of his job like this.

The unfortunate news is that unless your son can link this adverse treatment to a protected trait such as race or religion (in which case he's have a discrimination claim), there would be no legal basis to contest his employer's decision to offer him only the full time position, even though this is a position which he cannot take and which will essentially result in him losing his job. Generally speaking, employers retain tremendous discretion with regard to how they manage their business and can take any employment action that is not discriminatory or otherwise specifically in violation of California or federal law.

The good news is that an individual in your son's circumstance will likely be eligible for unemployment benefits. Performance issues such as what you describe would not typically rise to the level of "misconduct" that would warrant a disqualification from benefits, as "misconduct" requires showing a willful disregard for the interests of one's employer.

Specifically, Title 22, Section 1256-38(a) provides:

An individual's failure to perform properly or neglect of duty is wilful and misconduct if he or she intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests.

The EDD's Benefits Determination Guide elaborates on this rule by stating:

When a claimant was discharged for failure to perform his or her work properly, the determination of misconduct will therefore depend on:

-The wilfulness of the claimant's failure to perform properly, or
-The degree of negligence, or
-Recurrence of negligence after warnings or reprimands.

In light of the above and provided your son has made a good faith effort to do his job, his "mistakes," however his employer chooses to characterize them, would be extremely unlikely to satisfy this standard.

With regard to your son's inability to accept the full time position, this too would not typically warrant disqualification from benefits, as your son has a legitimate and compelling reason for being unable to accept full-time work, and thus would be rejecting the full time position with "good cause."

Title 22, Section 1256-20, provides:

This section relates to whether good cause for leaving the most recent work exists when an individual's leaving of work is due to various time elements which may cause the individual to leave a job, including days of the week, hours, overtime, part-time or full-time work, seasonal employment, and temporary employment. . . .

An individual has voluntarily left the most recent work with good cause if all of the following conditions exist:

- There was a real, substantial, and compelling reason for leaving work due to those conditions of work that relate to the elements of time considered in this section.
- The individual informed the employer of the reason for leaving.
- The individual allowed the employer a reasonable opportunity to adjust the situation.

Consistent with the above, your son would be extremely wise to document his efforts to retain his current schedule, if he has not done so already. This will show the EDD, when the time to apply for benefits comes, that he made a good faith effort to keep his job and that there was nothing he could do to maintain a position that would allow him to work the hours he is able to work.

Since there is a "real, substantial and compelling" reason for him to deny the full time position--his school schedule--then an individual in his circumstance should retain eligibility for benefits.

One last point I'd like to make is that, while it is still possible to quit and receive benefits under these circumstances, it is generally better to be involuntarily terminated, as this makes it even more clear that your son did everything he could to maintain his position right until the very end.

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.
Customer: replied 4 years ago.
Is his current employer at liberty to blackball him if contacted by a potential future employer?

It depends what you mean by blackball. Employers are free to state their opinions about an employee's performance along with any factually true statements (i.e. stating the number of times an employee was late to work) to prospective employers who call for a reference. Employers cannot, however, make knowingly false statements (i.e. lie and say that an employee was fired for stealing) in order to blackball someone from getting hired.

Again, please feel free to let me know if you have any further concerns.

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