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Violating an Employer Known Rule/Policy and Unemployment Benefits 

8/27/2014

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In the recent unemployment appeal hearing at the Oakland office of the California Unemployment Insurance Appeals Board, our office handled and prevailed in a relatively challenging situation. The claimant was driver for a uniform supply company. He was terminated for violating the employer's policy which prohibited talking on the cellphone while driving (whether with a headset or without). The claimant answered his employer's call while driving, receiving a citation from the policy and was terminated shortly after. 

Initially, the claimant was denied benefits as he was found to have been terminated for "misconduct" within Unempl. Insurance Code sec. 1256. During the appeal hearing, we made a few arguments that convinced the judge that the above policy violation fell short of "misconduct" as defined by the code.  The important precedent case for these kinds of situations is Delgado v CUIAB (1974).  In that case, the claimant, a grocery checker, was fired for knowing violating the employer's rule when she postponed recording a certain purchase. The claimant believed that her departures from the rule were acceptable to her immediate supervisor and the store manager, who knew of them and participated in them. The claimant was never warned to stop this practice. The Court of Appeal held that the claimant reasonably believed that her actions were approved or condoned by her supervisor, and thus there was no "misconduct". 

The Delgado case can be used effectively to win at the unemployment appeals hearing in those common cases where the violation that lead to termination, even if was known to be against the company policy, was not significant and where the employee, when committing a violation, was arguably acting with an intent to benefit the employer.
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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


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  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
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    • How To Find The Right Lawyer For Your Case