Law Office of Arkady Itkin 

One of the most common ways that employer tries to fight their former employee's claim for unemployment insurance benefits is arguing that the employee was terminated due to misconduct. Misconduct in the context of unemployment insurance code is a term of art, and understanding its legal definition is crucial to appealing the denial of unemployment benefits at the appeals board if your initial claim has been denied. 

Under California Unemployment Insurance Code section 1256 "an individual is disqualified for unemployment compensation benefits if the director finds that he left most recent work voluntarily without good cause or that he has been discharged for misconduct connected with his most recent work." 

The standard for showing "misconduct" within the meaning of unemployment benefits eligibility is quite high and thus favoring applicants for those benefits. While such gross violations as violence or threats of violence at workplace and clear grounds for disqualification from unemployment insurance benefits, many of the less grave issues at work do not constitute misconduct. Thus, employee's mere inefficiency, unsatisfactory conduct, ordinary negligence, or good faith errors in judgment at work are not "misconduct," that will disqualify that employee from receiving unemployment compensation. In this context, the term "misconduct" is limited to conduct evidencing such willful or wanton disregard for an employer's interest as is found in deliberate violations or disregard of standards of behavior which employer has right to expect of his employee, or in carelessness or negligence of such degree, or recurrence as to manifest equal culpability, or to show an intentional and substantial disregard of employer's interest or of employee's duties and obligations to his employer.  

Even refusal to perform work as directed does not always rise to the level of misconduct that disqualifies an employee from benefits. In one case, the nurse willfully refused to perform work because her consultations with outside authorities led her to conclude that health of patient would be jeopardized if she following her superiors' direction. Because her refusal to perform was out of reasonable and good faith fear of harm to others, she was entitled for unemployment insurance benefits after she was discharged for repeated refusals to follow her employer's orders. 

Likewise, an employee's unauthorized departure from work did not constitute misconduct causing his discharge within the meaning of unemployment insurance code where the employer testified that it's the employee's inappropriate language following the confrontation on the day following the unauthorized departure and not the departure itself was the sole cause of his discharge. 

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