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CA - Can "At-Will" Termination win a UI Claim? California

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  • CA - Can "At-Will" Termination win a UI Claim? California

    If I fire someone and take the "At-Will" position, can they file and win unemployment even though the real reason I'm firing them is for misconduct?

    Do I have to let them know why I'm terminating them or can I just explain myself to the California EDD when she files? I don't want to give her a reason at the time of termination but want to fight and win the UI claim. The manager does not want her to know why she's getting fired even though it's misconduct yet he wants me to fight her UI.


    Thanks

  • #2
    The problem(s) are this.
    - You are assuming that the state will not repeat what you said to the employee. They will. Then you are in the undesirable position of saying one thing to the employee and an entirely different thing to the state of CA.
    - You seem to be assuming that the state will take your word for this. They likely will not. You tell your story, the employee tells their story, and the state then gets to decide whose story they like best. Since you apparently are telling the employee a different story then you are telling the state, you risk your credibility with the state.
    - Assuming at some point the employee wishes to file a wrongful termination claim, they can try to use your varying stories to try and support their claim.

    It is perfectly legal for you to terminate someone on an "at will" basis. But no one is required to take your word for why the termination occurred. The employee can always file a wrongful termination claim. Not saying that they will win, but they can always make the claim. Employment At Will is a real legal concept but it is a weak legal concept. It is arguably always better to terminate for cause if that is what really happens. It is arguably better if the employer has one consistent story that they tell everyone, and not a different story for each audience. Most terminations are lawful as in not a wrongful termination. But most terminations also qualify for UI. And it is not unheard of for employers (or employees) to lie to state UI, who not surprisingly tends to not take people's word for things. When everyone lies to you, a lot, there is no assumption that the next statement made must be truthful.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      I concur fully with DAW's comments above.

      Also remember you are required to provide the employee with the pamphlet, "For Your Benefit - California's Programs for the Unemployed" (DE 2320) and also a "Notice to Employee as to Change in Relationship". The EDD website provides a free download of the DE2320 and also a sample form you can use for the Notice; you do not need to specify the reason for the discharge on the Notice.

      See the EDD website, Required Notices and Pamphlets, if you are not familiar with these requirements.
      While I may work for lawyers, I am not an attorney. Comments I make are based on my working experiences and should not be interpreted as legal advice.

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      • #4
        Originally posted by AA1126SM View Post
        If I fire someone and take the "At-Will" position, can they file and win unemployment even though the real reason I'm firing them is for misconduct?

        Do I have to let them know why I'm terminating them or can I just explain myself to the California EDD when she files? I don't want to give her a reason at the time of termination but want to fight and win the UI claim. The manager does not want her to know why she's getting fired even though it's misconduct yet he wants me to fight her UI.


        Thanks
        In order to contest a terminated employee's UC claim, the employer has to give a specific reason why the employee was terminated and demonstrate that it amounted to willful misconduct. That information is communicated to the claimant so he/she has an opportunity to respond to that.

        You need to explain to your manager that he can't have it both ways. If he wants you to contest, you need to provide the State with the specific reason why the claimant was terminated. If he doesn't want her to know why she was fired, then you don't contest the claim and you don't give the UC division the real reason why she was terminated - you simply tell them that her services were no longer required and leave it at that.

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        • #5
          To win you also need to show you let the employee know about the problem and the employee did not correct it.

          So if this employee is doing a portion of their job wrong and you never told them, it will be an uphill fight to win unemployment.

          Comment


          • #6
            To win you also need to show you let the employee know about the problem and the employee did not correct it.

            That depends on what type of misconduct we're talking about. If an employee punches their supervisor in the nose, you don't have to give the employee a chance to correct the behavior. That's a "one and done."

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            • #7
              Originally posted by Beth3 View Post
              To win you also need to show you let the employee know about the problem and the employee did not correct it.

              That depends on what type of misconduct we're talking about. If an employee punches their supervisor in the nose, you don't have to give the employee a chance to correct the behavior. That's a "one and done."
              I agree. Those sort of cases make for an easy win. I was speaking of simple misconduct.

              I just won a case where an employee was given a verbal, written and final then termed for swearing at fellow employees. It was an easy win because we showed we informed him and tried to change his behavior.

              At my last job I had an employee threaten to bring in his gun and thin the herd. He then left to see his doctor. He was very surprised to see a police officer waiting when he tried to return to work the next day as he was termed. He told unemployment he really didn't meant it and didn't even have a gun. We won that one also.

              To win any unemployment case you need to have proof; whether it is a one and done or follow discipline steps.

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