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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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I have been working full time at my job for over 2 years as

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I have been working full time at my job for over 2 years as an on call LVN. I recently put in a change of schedule due to school and was told that I would be placed on per diem as they were not able to accommodate me. I have two questions. First if I accept the per diem position can I apply for unemployment. And second if I keep my same schedule but I am fired due to not going to a call will I be denied unemployment. I live in California, am not part of a union, and was on unemployment before 3 years ago.
Hello and thank you for entrusting me to assist you. I am very sorry to hear about this unfortunate conflict between your work and school schedules.

With regard to unemployment, only those individuals who find themselves unemployed (or underemployed) through "no fault of their own" will be eligible for benefits. Employees are expected to maintain flexibility with regard to their employer's scheduling demands, and so an employee who requires a modified schedule due to schooling or who cannot accept expected "on call" shifts due to schooling and is terminated (or furloughed) for these reasons will typically be denied benefits on the ground that, through their voluntary decision to go back to school they now find themselves out of work or short on work.

Even if you were eligible for unemployment if you accepted the per diem position at a presumably reduced gross net of pay, you likely would be ineligible for benefits because you must report your per diem earnings, and those would offset your actual benefits. If the per diem earnings were more than your weekly benefits amount, your benefits would be offset to zero. Again, however, if you needed to switch to the per diem schedule because you are going back to school, the EDD would not regard that as a reduction in your employment due to "no fault of your own" (not that there is anything wrong about going back to school!) and thus your claim for benefits would almost certainly be denied.

Do not be persuaded by your employer's statement that he will not fight your claim for benefits. The EDD routinely denies claims when proper even when the employer makes no effort to contest. The EDD has an independent obligation to award UI benefits only to those employees who are entitled to receive them pursuant to the criteria set forth in the Unemployment Insurance Code.

I am truly sorry that I cannot provide you with more favorable news here, but I trust you can appreciate my limitations in explaining how the law actually operates under the circumtance. It is much better to know this now rather than to take action on the assumption you'd be eligible for benefits when in fact you almost certainly will not.

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.
Customer: replied 4 years ago.

If I were to receive zero hours per diem and unemployment were to hypothetically believe the change of hours is due to no fault of my own would I receive benefits?

Thank you very much for your reply. Whether an employee finds themselves unemployed "through no fault of their own" is a question of fact, meaning that it depends on the particular circumstances. I think if you could argue that you had no reasonable basis to suspect that you would be put on a per diem schedule which gave you zero work time, then you could argue that despite the fact you voluntarily enrolled in school, you presently find yourself unemployed through no fault of your own.

However, I think this argument would only work if you received an assurance from your employer that you would get a certain number of per diem shifts. If you can obtain such an insurance in writing, and then you later find that you are receiving far fewer per diem shifts than was represented, you may have a legitimate argument at that point in time that you find yourself unemployed (really underemployed) through no fault of their own.

It is an unlikely circumstance, but I do think it would be possible if the situation played out as I have described above. Please do not hesitate to let me know if I can provide any further assistance whatsoever.
Customer: replied 4 years ago.

The problem is I was told by previous management that the change of schedule would not be a problem. Management changed 2 months ago and now that is not the case. So what I am really trying to know is if I accept the per diem shift and forgetting the fact of school would I receive benefits if they do not give me any shifts. As I was told that hours would probably be far and in-between. He also gave me the option of being laid off to help me obtain benefits, would that be possible? Sorry for so many questions but he wants an answer tonight

Please do not worry about your follow up questions, it is my pleasure to continue assisting you until you are absolutely clear.

If you accepted your school schedule in reliance on the assurance that your employer could accommodate you, then you certainly have a reasonable argument that you now have no choice but to accept the per diem schedule, even if you do not receive many shifts.

Under such circumstance, you would have a decent chance of getting your benefits claim approved. However, if you have not yet enrolled in school, it would be much harder to argue that you are now working a reduced per diem schedule through no fault of your own, since it should now be clear to you that by enrolling in school you will be making much less money.

In short, the question boils down to what your expectations of work were at the time you committed to going to school. A layoff would not be advisable since you would be voluntarily electing it. The EDD looks at the circumstances underlying the separation of employment, not the label ascribed by your employer.

I hope this clarifies things and gives you guidance on what decision is in your best interest. Very best wishes moving forward.
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