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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 12941
Experience:  Significant experience in all areas of employment law.
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I had chatted with someone before but i forget s name.

Customer Question

Hello. I had chatted with someone before but i forget his name. anyway. i got let go from my job back in september. the determination was that i was being "late to work without permission." i live in california. i was with the company for 12 years. rarely called in sick, let others take their vacations first, didn't ask for days off often...i was a maitre d/manager in a busy LA restaurant. very few breaks and tied to the phones and guests for 10-12 hours a's chaotic, etc.. i was a very good worker. very few complaints over the years. i gave the heimlich 3 times and gave CPR to our already dead bartender who died on the shift i picked up for another manager. i got denied unemployment. i went through a rough spot this past year after breaking my ankle in costa rica in december of 13. i came back to work depressed since my vacation ended up in disability (hadn't had a real vacation in years)....Anyway, i kinda checked out and was depressed, partied a bit much, was on a schedule where i couldn't sleep at night and would end up sleeping in at times and being late to work. i didn't want to be late for work, just too many times. nothing but a little blurb about it in my review (still great). here i am in front of the EDD office because i decided last minute to appeal the determination. what would you recommend i do or say to help me. i'm a good citizen, good worker, at last job for 12 years, glowing reviews and few issues. please help, thank you. Ben
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and welcome back, Ben. I am very sorry to hear you were let go and about your denial of UI benefits.

The question here is whether your tardies rose to the level of "misconduct." A finding of misconduct is what would be necessary to deny unemployment benefits. Here is what the EDD has to say about when tardies rise to the level of misconduct:

Given this obligation on the part of the employee and the standard of punctual behavior the employer has the right to expect, tardiness is misconduct if, as stated in Title 22, Section 1256-40:

It results in a substantial breach and disregard of the duty owed to the employer and shows a wilful or wanton disregard of and injures or tends to injure the employer's interests, such as any of the following circumstances:

  1. Repeated inexcusable tardiness to work despite a recent warning that inexcusable tardiness may result in discharge.
  2. An instance of inexcusable tardiness considered in conjunction with violations of other employer standards and prior reprimands or warnings for those violations.
  3. A single instance of inexcusable tardiness which causes reasonably foreseeable substantial injury to the employer's interests.

If the discharge is due to tardiness, it is therefore necessary to ask the following questions:

  • Did the claimant have a compelling reason for the tardiness? (If there was a compelling reason, the tardiness is excusable.)
  • Was the tardiness an isolated instance?
  • Would the tardiness only have minor consequences or would the tardiness cause foreseeable substantial injury to the employer's interests?
  • Were there prior warnings or reprimands for tardiness or other violations of employer standards?

I am going to assume that you cannot present a "compelling reason" for your tardies, and also that the tardies were somewhat numerous. That leaves arguments that the tardies only had a minor consequence on your employer and that there were not sufficient prior warnings. This is what an individual in your circumstance would need to focus on in your EDD appeal. If you can argue that your tardies did not substantially affect your employer and that the "little blurb" in your review about being late was not a sufficient warning, then you can very likely get your denial of benefits overturned.

I hope that you find this information helpful. 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.