Jim W. from San Francisco asks this week’s question:
Q: “I know that you do personal injury and employment cases where you represent employees. I am an employer and want to know if you would answer a question for me. I had an employee who had a special skill in operating a particular machine, so he knew that I needed him. He was taking advantage of the situation and would come to work and be very argumentative, and he would swear and refuse to do tasks assigned to him, saying that they were beneath him. I told him that he needed to stop swearing in the workplace and show me respect. He continued to swear at me and said he would do what he wanted, so I finally fired him. Now he has filed for unemployment. Do I have any defense to this claim?”
A: Yes, I do represent employees only, but I am also an employer and have an intimate understanding of, and respect for, the right of an employer to control his or her workplace. Unemployment claims are handled by the Employment Development Department.
When discharged employees file a claim for unemployment, they are not automatically entitled to receive unemployment — they must meet certain criteria to receive benefits.
An employer may challenge a claim for unemployment under a number of circumstances, including misconduct or insubordination.
The EDD website, edd.ca.gov, has a page — search for “misconduct MC 255” — that provides a wealth of information, including the following:
Implicit in the agreement of hire is the concept that an employee is subject to some degree of authority exercised by the employer or the employer’s representative. An employee is insubordinate if he or she engages in misconduct or insubordination as defined by the California Code of Regulations.
Misconduct is generally defined as conduct that intentionally disregards the employer’s interest and willfully violates the normal standard of behavior. This includes refusing, without justification, to comply with the lawful and reasonable orders of the employer or the employer’s representative.
Likewise, if an employee commits an act that exceeds the authority either expressly granted by the employer, or impliedly created by failure of the employer to object to a particular course of conduct, he or she may be subject to termination with no right to unemployment benefits.
If an employee makes a statement or remark, which is not the result of an error in judgment, that disputes or ridicules an employer’s authority, unemployment benefits can be contested.
As stated in your inquiry, an employee’s addressing of vulgar, profane, insulting, obscene or derogatory language toward the employer — when such remarks are unjustified under the circumstances, and not within the normal good-natured banter between the employer or the employer’s representative — is grounds for denial of unemployment benefits.
According to the EDD, generally, insubordination requires cumulative acts with prior reprimands or warnings. However, a single act without prior reprimands or warnings can be insubordinate if the act is substantially detrimental to the employer’s interest.
Not all disputes between an employer and an employee result in discharge of the employee for misconduct.
In the normal working situation, there is a degree of give and take between the employer and the employee — including differences of opinion, disagreements and misunderstandings — and participation in such discussions is not considered misconduct.
The circumstances under which the argument or remarks were made are taken into consideration. An isolated instance of an error in judgment is not misconduct.
If an employee is discharged after an act of disobedience and that act is part of a prior pattern of cumulative acts of insubordinate conduct, the employer must have given prior reprimands or warnings for the ultimate discharge to be for misconduct.
It appears that you have grounds to challenge the claim for unemployment. You must file your opposition within 10 days and then the EDD may schedule a hearing in front of an administrative law judge where you can present your case.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to email@example.com.