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Joseph, Lawyer
Category: California Employment Law
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Experience:  Extensive experience representing employees and management
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Our employee is going to jail this Friday for 6 months. If

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Our employee is going to jail this Friday for 6 months. If we fire her tomorrow, is she eligible for unemployment after she is released? We reside in Los Angeles County, CA.

I'm sorry to hear about your situation and hope I can help.

My name isXXXXX am a licensed attorney, and my goal is to provide you with excellent service today.

No, if she is terminated tomorrow since she will be in jail for six months, she would not be eligible for unemployment benefits after she leaves jail.

In order to be eligible for unemployment benefits in California, an employee needs to be terminated through no fault of his or her own.

Going to jail to serve a court ordered sentence after a conviction (whether by plea bargain or trial) would be considered being terminated for cause, as the absence is the employee's fault (committing a criminal offense).

See the EDD's section on termination due to incarceration here:

Absence Due to Incarceration

A claimant could be discharged because of absence due to incarceration. In such a case, the first consideration is whether the separation is a discharge or voluntary quit. There are two factors to be considered. They are:

Was the claimant absent from work for more than 24 hours due to incarceration?

Was the claimant convicted of the offense or any lesser offense for which he or she was incarcerated, or did the claimant plead guilty or nolo contendere?

If the answer to both questions is affirmative, the separation is considered a voluntary quit even though the claimant was actually discharged for absence from work. This is according to Title 22, Section 1256-31(d)(1), which provides in part:

. . . A voluntary leaving without good cause exists, and not a discharge, where an individual's employment is terminated due to his or her absence from work for a period in excess of 24 hours because of incarceration and the individual is convicted of the offense or any lesser offense or pleads guilty or nolo contendere.

"24 hours" as used here means 24 clock or consecutive hours rather than 24 working hours. This is the decision in P-B-443. See VQ 360 for a detailed discussion on this P-B. Also see VQ 360 if the separation is considered a voluntary quit.

What if the disposition of the case is still pending? If the absence is in excess of 24 hours and there has been no conviction or the claimant has not entered a plea of guilty or nolo contendere, the issue is a discharge, and not a voluntary quit.

If the claimant was absent 24 hours or less, including such incarceration where an individual in a narcotics or drug abuse case is diverted to a program of education, treatment or rehabilitation, the separation is considered a discharge.

If the claimant was not guilty of the offense or any lesser offense for which the claimant was incarcerated, the separation is also considered a discharge.

When a claimant is terminated for absence due to incarceration, and the separation is considered a discharge, whether the discharge is for misconduct depends on the claimant's efforts to notify the employer of absences. See C. Notice below for a discussion on the claimant's obligation to notify the employer when he or she is incarcerated.

Example - Claimant Not Guilty of Offense:

The claimant was arrested on an outstanding warrant and charged with driving under the influence of alcohol. He protested the warrant but was nevertheless incarcerated and arraigned. Two days after his arrest, he or his brother contacted the employer to advise the employer of his being held in jail. He was sentenced to serve a year in the county jail but was released at the end of six months when it was found that the warrant under which he had been arrested did not apply to him. The claimant was represented by a public defender but was unable to convince the authorities that he was not the person named in the warrant. When the discrepancy was finally corrected by judicial clearance the claimant was released. The employer terminated the claimant after learning that he had been sentenced to serve time.

The claimant was found eligible. He was eventually found innocent of the charges for which he had been incarcerated. He notified the employer of the reason for his absence shortly after the arrest.

Regardless of the length of the absence, if the incarceration is but a substitute for a fine which could not be paid due to the claimant's indigence, the separation is a discharge. Title 22, Section 1256-31, Comments, states in part:

. . . An individual who voluntarily commits and is convicted of a crime for which a fine is imposed but who is indigent and unable to pay the fine and is thereupon incarcerated in essence loses his or her job when discharged for absence due to incarceration because of indigence and not due to the voluntary criminal act. The act is voluntary, but the failure to pay is involuntary. But for the individual's involuntary indigence, there would have been no incarceration and no absence from work despite the commission of a crime.

Example - Unable to Pay Fine:

In Kaylor v. Calif. Dept. of Human Resources (1973), the claimant was sentenced to pay a fine of $120 or spend seven days in jail. After trying unsuccessfully to obtain an advance on wages he had earned, the claimant notified his employer that he must spend seven days in jail. He was terminated during his absence. The court held that compelling an indigent person to serve a sentence in lieu of fine was in violation of the equal protection clause of the Fourteenth Amendment. The court further held that denial of UI benefits under these circumstances is contrary to the policy expressed in Section 100 of the UI code and said:

. . . a severe construction of Section 1256.1 would present the ludicrous proposition that a rich man could retain his job or his eligibility for unemployment compensation, whereas the poor man not only loses his job, but he is denied unemployment benefits.

What if the incarceration in lieu of the fine is not because of the claimant's indigence but simply a matter of his or her election? In this case, the claimant cannot escape disqualification under the Kaylor rationale. So long as he or she has resources such as a bank account, home, car, etc., which can be used directly or as collateral to raise funds to pay the fine, he or she is not indigent. It should also be noted that this exception applies only to a fine in lieu of incarceration. It is not applicable where the claimant cannot raise funds to permit a release on bail.

I hope the above information is helpful, although I realize it is not what you wanted to hear. I sincerely XXXXX XXXXX had better news to give you, but I hope you appreciate an honest and direct answer to your question. It would be unprofessional of me and unfair to you to provide you with anything less.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service. Please contact me first if you are contemplating leaving me a negative rating, as I’ll be happy to continue to address your concerns until you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!

Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you so much for the answer Joseph. I have a few more questions...


1. Do we have to officially fire her? Since she and her family members have worked for us on and off for many years, she probably thinks we will hold her job. We will definitely NOT be holding her job.


2. Do we have to write anything up or make her sign anything? If needed, we have a plenty of reasons to "write her up" whether it is the constant tardiness or poor work performance or use of work computers for unauthorized personal use (i.e. Facebook, personal e-mails, surfing the web). I would rather not make this situation any worse than it has to be already.


She mus report to jail on Friday so tomorrow is her last day whether she knows it or not. She can't expect us to hold her position open, but I just don't want her trying to come after us for no reason or claiming unemployment, etc, etc.


Thanks again Joseph!

1, No, it would be considered job abandonment for her to not be able to work for six months while she is incarcerated, so there isn't a need to officially fire her, as she would be considered to 'voluntary quit' her job automatically since she will be in jail for more than 24 hours, and obviously was either convicted, plead guilty or nolo contendre.

2. No again. You do not need sufficient good cause to terminate her, as she will actually be considered to have voluntary quit without good cause by being incarcerated.

There's nothing to worry about as far as her coming after you for unemployment or anything else.

Just wanted to check in to see if you had any follow up or clarifying questions regarding the above information.

If not, please remember to rate my answer positively so I get credit for my work!

Thanks and best of luck!