Cal. Code Regs. Tit. 22, §§ 1256-33

Current through Register 2024 Notice Reg. No. 43, October 25, 2024

Section 1256-33 - Discharge for Misconduct -Connected with Most Recent Work

(a) General. This section interprets when a discharge for misconduct is or is not "connected with" the most recent work under Section 1256 of the code. A claimant who has been discharged from work for misconduct is disqualified under Section 1256 of the code only if the misconduct is "connected with" his or her most recent work (see Section 1256.3 of the code and Section 1256-2 of these regulations for definition of most recent work). Misconduct is connected with work if the activity involved injuries or tends to injure the employer's interests. This connection or lack of connection is usually easily determined or apparent when the activity is on the job. Situations which present problems are treated in the following interpretations. For additional related discussion, see Section 1256-43 of these regulations.

(b) Off-the-Job Activity.

(1) Usually, the off-the-job activity of an employee does not injure or tend to injure the employer's interests. If there is no injury or potential injury to the employer's interests, the employer cannot reasonably impose the employer's standards of behavior on an employee during his or her off-duty time. However, there are off-the-job situations where the interests of an employer are either injured or tend to be injured by the conduct of an employee during these off-duty periods, usually involving illegal or criminal activity.

EXAMPLE 1. A, an official of a local bank, is arrested and convicted for theft. The bank's business reputation is damaged. This would be so even if the theft was not from the bank and committed during off-duty hours. On the other hand, the off-duty theft by a janitor of this same bank would have little effect on the bank's reputation and public trust and confidence in this bank.

A discharge of the bank official would be for misconduct connected with the work. A discharge of the bank's janitor would not be for work-connected activity.

EXAMPLE 2. B, a pharmacist, was arrested at B's home for the illegal possession of various drugs. When B disclosed to the employer that the arrest was valid because B had possessed such narcotics, the employer discharged B.

B's discharge is for misconduct connected with B's job because it tended to injure the interests of the employer and there was a substantial breach of the duty owed by B to the employer. B knew, or should have known, the laws governing the possession of narcotics and B's responsibility as a dispenser of drugs and narcotics upon prescription. B's role as a registered pharmacist required that B not engage in any activity which would lessen the public faith and confidence in the employer's pharmacy.

EXAMPLE 3. C, a janitor, was arrested during C's off-duty hours for drunk driving. Upon returning to work, C was discharged.

C's discharge is not for misconduct connected with C's most recent work. There was no duty owed to the employer's interests.

(2) While the off-the-job conduct which creates problems is usually illegal or criminal activity, other behavior by an employee may injure or tend to injure the employer's interests.

EXAMPLE 4. D was a camp counselor for youth camps. The employer had warned D to avoid conduct which might reflect on D's qualifications to guide youth. The employer discharged D because of adverse community reaction and protests to D's frequent patronage of a pornographic retail sales outlet.

D's discharge is for misconduct connected with the work since the employer's interests in a favorable business reputation were injured by D's off-duty conduct.

EXAMPLE 5. E, a professional tennis athlete, had agreed with the employer, who had engaged E's exclusive services, not to engage in hazardous participation in contact sports activities. The employer discharged E when E engaged in rough-and-tumble football.

E's discharge is for misconduct connected with the work since the employer's interest in E's unique athletic services was seriously affected by E's off-duty conduct, even though no injury to E in fact occurred.

(c) Pre employment Activity.

(1) In situations involving pre employment activity, the claimant is discharged for conduct occurring before the employment relationship was begun. Usually this is not connected with the most recent work.

EXAMPLE 6. F was hired by Taxi Cab Company X. F was stopped for a traffic violation while driving on duty and cited by a police officer. Company X found that F had been drinking prior to the traffic violation and discharged F. Shortly after, F was hired by Taxi Cab Company Y. In the first week with Company Y, the police department revoked F's probationary driver's permit. Company Y then discharged F since F lacked a permit to drive a vehicle.

F's discharge by Company Y is not for misconduct connected with F's most recent work since the misconduct occurred while employed with a prior employer, Company X. (Note: Although there is no discharge for misconduct, F's actions raise an issue of "constructive voluntary leaving" from the last job with Company Y without good cause. See Section 1256-1 of these regulations.)

(2) In other situations, a claimant's pre employment activity may be the basis for a newly-hired employee to be denied insurance or a surety bond. In such cases, if there are no alternative means for insuring or bonding the employee, a subsequent discharge for lack of a bond or insurance policy is not connected with the work. However, if the claimant has falsified his or her work application and concealed information which would have precluded the initial hiring, the discharge may be for misconduct (see Section 1256-34 of these regulations).

(d) Garnishment of Wages. A discharge because an employee's wages are garnisheed by a creditor is not for misconduct connected with the work unless all of the conditions set forth in Section 1256-35 of these regulations are met.

(e) Union Disputes.

(1) A discharge may be caused by a dispute between an employee and a union. This usually occurs in the context of a collective bargaining agreement which provides that an employee must be discharged after having been expelled or suspended from the union. If this is the only reason for the discharge, there is no misconduct regardless of the underlying reason for the expulsion or suspension from the union. However, if the employer would have discharged the claimant for the misconduct even if there had been no expulsion or suspension by the union, then the discharge for misconduct is connected with the most recent work.

EXAMPLE 7. G was expelled from the union after another union member filed charges against G. Under the provisions of the existing collective bargaining agreement, the employer discharged G.

G's discharge is not for misconduct connected with the most recent work since it was caused by difficulty between the union and G and was not a breach of a duty owed to the employer.

NOTE: Although the example is not a discharge for misconduct, a "constructive voluntary leaving" issue exists. See Sections 1256-1 and 1256-41 of these regulations.)

EXAMPLE 8. H while at work started an argument with H's supervisor, a union official, concerning union policies. H struck and injured the supervisor, without provocation. The supervisor was unable to continue working and left work. The union promptly expelled H. Under the provisions of the collective bargaining agreement, the employer discharged H.

H's discharge is for misconduct connected with the most recent work, since the employer's interests in orderly work behavior and discipline are damaged and H would have been discharged for the violation had not the discharge been required under the collective bargaining agreement.

(2) The issue of connection with the work arises also when there is a trade dispute. During such a dispute the employer-employee relationship is merely suspended and not terminated. If the claimant has engaged in misconduct which injures or tends to injure the interests of the employer, the connection between the misconduct and the most recent work is present.

Any standards of behavior which the employer has the right to expect, or any duty or obligation owed the employer by the employee, continue during the trade dispute.

EXAMPLE 9. During a strike called by J's labor union, J threw rocks at nonstriking employees as they entered and left the premises. Upon completion of the strike the employer denied reinstatement to J.

J's discharge is for misconduct because J's acts were designed to interfere and annoy the nonstriking workers and thus interfere with the employer's operations. The conduct was not excused by the trade dispute.

Cal. Code Regs. Tit. 22, §§ 1256-33

1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).
2. Amendment of subsection (d) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).

Note: Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.

1. New section filed 4-18-80; effective thirtieth day thereafter (Register 80, No. 16).
2. Amendment of subsection (d) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).