Can you get fired for gambling?

Title 22, Section 1256-42(d) provides: An employee's gambling or game playing off the job would not be misconduct unless this affected the employee's ability to work or caused a substantial injury to the employer's interests.

edd.ca.gov - Misconduct MC 485 - EDD - CA.gov

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Violation of Employer Rule

This section relates to discharge due to violation of employer rules. If the violated rule concerns a topic discussed in other sections, refer to the guidelines provided in those sections. For example, if the violated rule concerns notifying the employer of an intended absence, refer to Attendance, MC 15. If the violated rule concerns use of drugs, refer to Use of Intoxicants and Drug Testing, MC 270.

A. General Rule

Section 1256-42(b) of Title 22 provides:

A discharge by an employer of an individual for violation of an employer rule is for misconduct connected with the work if the rule is reasonable, the individual knew or should have known the rule, and the violation is wilful or wanton, material, and substantially injures or tends to injure the employer's interests. If the individual has previously violated a minor employer rule or has previously violated the same or a similar employer rule with the knowledge of the employer, a discharge is for misconduct connected with the work if the violation substantially injures or tends to injure the employer's interests and has been preceded by prior warnings or reprimands for previous violations, or if the individual's course of conduct as a whole demonstrates a substantial disregard of the employer's interests following prior warnings or reprimands for violations of other employer rules. Thus, a violation of an employer rule is not, by itself, misconduct. It would be misconduct if all of the following conditions are met:

The rule is reasonable.

The claimant knew or should have known the rule.

The violation is wilful and wanton. NOTE: Violation of a reasonable employer rule is not wilful if the claimant has shown good cause for violating the rule.

The violation is material.

The violation substantially injures or tends to injure the employer's interests.

The employer has warned or reprimanded the claimant for previous violations of the same or similar employer rules. Reasonableness of Rule It is the employer's right generally to establish such rules for his or her employees as, in the employer's opinion, are necessary for the proper conduct of his or her business. Violation of an employer rule regarding the performance of the work will generally be a violation of a reasonable rule. Example 1 - Reasonable Employer Rule: The claimant worked on an assembly line and his job was to mask the cars before they entered the spray booth. When the claimant felt that he would be unable to finish his task because the man on the other side of the car was not finished, he left his work station. When the foreman instructed him to return to his work station, the claimant stated he wanted to discuss the problem first. The foreman wanted the claimant to finish the job before the discussion took place. The claimant did not return to the work station and the job was completed by another employee. The claimant was discharged. All employees were provided with an employee handbook that included the employer’s rules. One of the rules was that disciplinary action could result from the failure or refusal to complete an assigned task. The rule is not unreasonable. Additionally, it is reasonable for the employer to require an employee who questions the job assignment to complete the job before registering a complaint in order to preclude disruption of the production line pending the settlement of the question. The discharge was for misconduct. Example 2 - Reasonable Employer Rule: The claimant was employed as the manager of a rental unit. The rental office was occupied only by the claimant. However, she was required to deal with tenants and others who were prospective renters. In order to serve the public, the employer had established a no smoking policy for the office. The claimant violated the policy, and was warned about it twice. She was finally terminated after she ignored the warnings. The discharge was for misconduct. The employer had a no smoking policy while the claimant was in the office. This was established to serve the public. The claimant, despite warnings, violated this reasonable policy. In most cases, a rule will be judged reasonable solely because the employer considered it necessary for the proper conduct of his business. The right of the employer to control his or her operations should be kept in mind and the fact that the claimant (or the interviewer) cannot readily see the need for an employer rule, does not, of necessity, mean that the rule is unreasonable. When the reasonableness of an employer rule is in doubt, the employer should be questioned as to why such a rule was put into force, and the rule should be tested against the following criteria. An employer rule is unreasonable when: The rule is not designed to protect or preserve the employer's business interests. Compliance with the rule is impossible, unlawful, or would impose a new and unreasonable burden on the employee. This principle is found in Section 2856 of the Labor Code, which provides: "An employee shall substantially comply with all the directions of his employer concerning the service in which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burden upon the employee. If the employer rule is unreasonable, a claimant's discharge for violating that rule will not be for misconduct. In such a case, the motives or beliefs of the claimant in violating the rule need not be evaluated in holding the claimant eligible. The fact that the rule is unreasonable will give the claimant good cause for violating the rule. Example - Unreasonable Employer Rule: In P-B-194, the claimant was discharged because of her refusal to submit to a polygraph test. The claimant had agreed to submit to such a test at the time of hire. Despite the initial consent, the Board found the claimant eligible, and stated: [I]t is our conclusion that the employer's rule was not a reasonable one and that the claimant had no duty to submit to such a rule. . . . our position is that . . . a claimant who is discharged for refusal to submit to such a test (even though he may have agreed to such a test as a condition of employment) is not subject to disqualification . . . ." Knowledge of Rule To be known, a rule must have been disseminated generally to all employees or made known to the claimant individually, either orally or in writing. If a claimant has been given a written copy of employer rules (as in an employee handbook), his or her failure to read the rules would not render the discharge for reasons other than misconduct. If the claimant was never informed of the existence of the employer rule, the discharge for violating the rule would generally not be for misconduct. Some employer rules, however, do not need to be transmitted to the employee but are implied or are known rules in the occupation or industry. For example, there does not need to be a written employer rule against stealing of employer property or a formal employer rule that an employee in a bank does not drink on the job. Example - Rule Should Have Been Known: In P-B-221, the employer operated a hotel. A rule was established that provided that bellmen were not to drink while on duty with guests of the hotel even when invited to do so. The claimant, a bellman, had drinks with two hotel guests during one evening. The claimant denied knowledge of the employer rule. The Board nevertheless held him ineligible and stated: While there is a conflict in the evidence as to whether the claimant was specifically made aware of the existence of the rule against drinking, it is our opinion that his actions were such as to evince a disregard of the standards of behavior which the employer has a right to expect of him and were not simply good faith errors in judgment or discretion. Under the circumstances we hold that the claimant was discharged for misconduct. The Board did not even try to resolve the conflict in evidence as to whether the claimant was aware of the existence of the rule against drinking, thus strongly implying that the claimant's awareness of this particular rule was not material in the determination of misconduct. Even had the evidence clearly showed that the claimant was not aware of the rule against drinking, the claimant should be held ineligible. In most employer-employee relationships, a prohibition against drinking on the job is so basic that it should be known by all reasonable employees, even though they may not be specifically so informed by the employer. Violation is Wilful If a claimant has good cause for his or her violation of a rule, or if the violation is due to mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances, or good faith errors in judgment or discretion, then there is no misconduct. Under such circumstances, the violation of the rule would not be a wilful, deliberate, or flagrant violation. It should be noted that if the employer has established that the employee has violated a reasonable rule, the burden shifts to the employee to show good cause for violating the rule. (Amador v. CUIAB) Example - Good Cause for Violation: In P-B-213, it was the policy of the employer to discharge any employee who was absent from work for a period of two or three days without notifying the employer. The claimant was discharged after being off work for two days without notifying her employer. She did not report for work because her three-year-old son was confined to a hospital with a fatal disease. She also did not communicate with her employer during her absence because she was during that period of time constantly at her child's bedside and her thoughts were completely preoccupied with her child. The Board found the claimant eligible and stated: [C]onsidering the circumstances which gave rise to her absence it cannot be said that her conduct evinced a wilful or wanton disregard of the employer's interests. What if the claimant stated he or she just forgot about the rule? A claimant's plea of "forgetfulness" could seldom suffice to support a finding that the violation was not wilful, especially where the claimant had received prior warnings and reprimands. Example - Forgetting the Rule: In P-B-188, the claimant used a cutting machine to remove excess threads from shirts. The employer's rules specified that wide blades were to be used with heavy materials and smaller blades with light materials. In theory, the use of the proper blade for the proper material would prevent damage to the shirts. Despite repeated warnings, the claimant continued to use the wrong blade and was discharged. The claimant conceded that she hadn't always changed to the small blade but contended that such failure had resulted from forgetfulness. The employer, however, maintained that the claimant's failure to change to the small blade was wilful as the use of the wide blade with the light materials enabled her to increase her total earnings. The Board found her ineligible and stated: [T]he claimant's failure to use the proper blade with light weight materials was a wilful disregard of the employer's interests. . . ." Materiality of Rule Violation Violation of an employer rule is material when the employer's operations are interfered with. Example - Violation Not Material: In P-B-186, the claimant, a janitor, was expected to be at his work station when the 7 o'clock whistle blew. The work station, an incinerator, was about a 2 or 3 minute walk from the time clock. The claimant's hourly pay did not begin until 7 a.m. of each working day. On more than one occasion, the claimant did not get to his work station by the time the morning whistle blew; and he had been warned that future infraction of the rule would result in his discharge. On the last day of work, as the claimant was on his way to the incinerator and less than 10 to 15 yards away from it, the 7 o'clock whistle blew; and the claimant was discharged for not being at his work station on time. There was no evidence that the claimant's action had in any way interfered with the employer's operations. The Board found the claimant eligible, and stated: Although the claimant . . . did not have any justification for his tardiness, we look beyond that element to determine whether the claimant's entire 'course of conduct which resulted in his discharge was so unreasonable as to be misconduct’. . . From the evidence before us, we find that, if there was any dereliction of duty on the part of the claimant, it was of such minor consequence that it did not constitute misconduct. In this case, the infraction is not material because the claimant's actions had not in any way interfered with the employer's operations, and none of the claimant's prior infractions had been material. Substantial Injury to Employer's Interest From the definition of a "reasonable employer rule," it follows that any violation of a reasonable rule will injure or tend to injure the employer's interests. However, there is no misconduct unless the injury or tendency to injure is substantial. Example - No Substantial Injury: In P-B-191, the claimant was employed as a janitor by the Mather Air Force Base. While off duty he was arrested and fined $250 for drunken driving. As a result, he was discharged for what federal civil service regulations defined as "serious misconduct while off duty." In finding the claimant eligible, the Board stated: [T]he incident occurred while the claimant was off duty and did not tend substantially to injure the employer's interest. In this case, the incident occurred while the claimant was off duty and the violation did not substantially injure the employer's interests. Contrast the above case with the following. Example - Substantial Injury: The claimant, a bookkeeper in a bank, had been so employed for six months. During this time she had cashed a number of checks drawn on a bank where she had previously been employed. The checks were returned marked "insufficient funds." The employer discussed the matter with the claimant who gave assurances that she would be more careful in the future. The claimant also maintained a joint account with her husband at the bank where she was employed. Checks were presented for payment against this account for which there were, again, insufficient funds on deposit. The claimant was in a position to know, day to day, what her balance was by merely checking. One check, a postdated check for approximately $185 was presented and not honored. After continuous difficulty of this nature the employer discharged the claimant. The financial integrity of a bank employee should be above question and it can also be taken for granted that questionable financial transaction on the part of a bank employee reflects on the integrity of the employer. The claimant in the instant case had been repeatedly warned that the issuance of checks with insufficient funds at the time of drawing the check would not be tolerated of a bank employee. The claimant chose to ignore these instructions and repeatedly violated them. Such conduct is clearly misconduct. Violation of a reasonable employer rule constitutes misconduct where the violation tends substantially to injure the employer's interest. Warnings and Reprimands Some employer rules are such that their first violations would be misconduct, for example, rules prohibiting fighting or drinking on the job. Warnings and reprimands need not be considered for this kind of violations. However, if the claimant has broken an employer rule which, although reasonable, is of comparatively slight significance, the claimant should be entitled to a warning or reprimand so that he or she would have the opportunity of mending ways before he or she was discharged. Therefore, if the employer has a rule about tardiness, or overstaying coffee-breaks, or any of the more minor conditions of employment, to constitute misconduct the employer would need to show that the claimant persisted in violating the rule despite warnings and/or reprimands. What if the warnings or reprimands were not for the same type violations as the one which occasioned the claimant's discharge? Even so, the discharge would be for misconduct if the claimant's conduct, viewed in its entirety, evinced a deliberate disregard of the employer's interests. For example, a claimant may have been warned several times over a period of two or three months because of such violations as arguing with coworkers, wandering away from the work station to engage in conversations, and failure to follow instructions. If, shortly after the last warning, the claimant violated an employer rule relative to tardiness by appearing at work 20 minutes late without good cause and was thereupon discharged, the discharge would be for misconduct.

B. Clothes and Appearances

An employer has the right to prescribe reasonable standards of dress and appearance for his or her employees. These standards may be designed to maintain a certain "atmosphere" or condition, such as the little white caps worn by employees in a bakery, or to insure the safety of employees working in dangerous areas, or to protect the health and cleanliness of employees serving the public. On the other hand, an individual has a constitutional right to dress and groom in any manner he or she chooses. In King v. CUIAB (1972) the Court of Appeals concluded that the wearing of a beard is a constitutionally protected right of an individual. The Court also stated: Our decision goes no further than to acknowledge that the state is constitutionally inhibited from denying unemployment compensation benefits to an applicant who has been discharged from employment because of personal action which is constitutionally protected; . . . It may also be acknowledged that payment of unemployment compensation benefits to this claimant . . . could penalize the employer herein to the extent, if any, that its 'reserve account' with the department is affected . . . Such event, however, may be regarded as part of the price which the employer must pay for participation in an unemployment compensation system which is administered by the state and is, therefore, subject to the state's constitutional obligations. . . . When a claimant is discharged for violating an employer rule regarding clothes and appearance, the discharge is for misconduct, according to Title 22, Section 1256-42 (c), if all the following conditions are met.

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The employer's rule rationally relates to the enhancement of the employer's business.

The benefit to the employer outweighs the impairment of the employee's constitutional rights. There is no available alternative which could be less restrictive of constitutional right of mode of dress or grooming or personal appearance.

Title 22, Section 1256-42 (c) also provides:

Thus, an employer's order to an employee to shave his beard would be reasonable if the beard was unsanitary or would adversely affect the patronage or production of the employer's particular business. The order would be unreasonable if it results from mere personal distaste of the employer or a mere ruse to discharge the employee. Also, an employer's rule that employees must confine long hair, if worn, by a hair net while at work for health or safety reasons or because customers objected to long hair is reasonable. . . .

The following precedent benefit decision illustrates the principles to be considered.

Example - Refusal to Shave Off Beard:

In P-B-362, the claimant was employed as a maintenance engineer for a major hotel. The duties of the job brought the claimant into contact with clients of the employer in that he would be called upon to set up sound equipment, repair electrical equipment in clients' rooms, and other maintenance work. When hired he received a handbook containing a dress code. In effect, such code required a person to look well kept, with neatly groomed hair and to be professional looking on the job. After working about five years, in September 1974, the claimant grew a beard and permitted his hair to grow slightly over his collar. Nothing was said to the claimant by his supervisor, or managerial or administrative officials in regard to his beard. Occasionally, his supervisor would, in a "joking" manner, indicate to the claimant that he should get his hair cut. The claimant did get his hair cut when directed to do so by his supervisor. In August 1976, the claimant received a memorandum from the employer informing him that management had received many complaints about his appearance, and that he must cut his hair and eliminate the beard or face days off or complete dismissal. At about the same time the employer also issued a dress code providing among other things that male employees would conform to the following:

No beards.

A conservative mustache is permitted. No handle bars.

Hair may not be longer than the collar of shirt.

On September 1, 1976 the claimant was discharged for refusing to shave off his beard. In finding the claimant eligible, the Board stated: Our review of the evidence constrains us to conclude that the restraints placed upon the claimant with reference to shaving off his beard were not rationally related to the enhancement of the employer's business as there is no indication that the claimant's wearing of his neatly trimmed facial hair affected the employer's commerce. Also, the benefits to the employer did not outweigh the resulting impairment of the claimant's constitutional rights, as it is apparent in this factual matrix that the employer's sudden reversal of its long-standing rule allowing facial hair was not reasonable. It is equally evident that there were alternatives less subversive of the constitutional rights that were available to the employer, in that it could have easily moderated the severity of its edict completely disallowing beards by requiring a neatness that conformed with its other more rational grooming rules that tolerated mustaches and relatively long hair. In balancing the benefits to the employer and the impairment of the claimant's constitutional rights, the Board stated: "While it is true that clients of the employer made some complaints about the claimant, it is not at all clear as to whether these complaints were related to the claimant's beard or whether the beard was merely used as a mark of identification. There was no indication that any of the employer's clients withdrew their business from employer's establishment because of the manner in which the claimant was groomed."

C. Gambling or Game Playing

An employer may have a specific rule forbidding gambling or game playing on the job. This is a reasonable rule as nearly all employers expect and require that employees perform the work for which the employees were hired during normal working hours. Thus, an employee's gambling or game playing on the job during normal work hours may be misconduct. Also, many forms of gambling, even between friends, are illegal in the State of California. What if the claimant was discharged for gambling on company premises but not on company time, i.e., at lunch time or prior to stating work in the morning? On this, Title 22, Section 1256-42(d) provides: Usually an employee's gambling or game playing on the employer's premises during off-duty hours would not be misconduct. It would be misconduct if the employee had been given prior warnings or reprimands for similar acts and the employee's ability to work is affected or there is a substantial injury to the employer's interests. As with all company rules, questioning should be directed to determine that the rule is enforced. If the rule is not enforced among all employees, it would tend to indicate that the claimant may have been discharged for some other reason but charged with gambling or game playing as reason for discharge, since that issue would be a comparatively easy one on which to protest a misconduct discharge. What if the gambling took place off the job? Gambling off the job is so inherently the claimant's own business that the discharge would generally not be for misconduct.

Example - Gambling Off the Job:

In P-B-189, the claimant had been warned and reprimanded for gambling while at work. A week prior to discharge the claimant had requested a week's leave of absence in order to take care of certain domestic and personal responsibilities and the employer granted the request. The claimant returned at the end of his leave and requested an additional week in order to assist a friend who was incapacitated. The employer refused the second week's leave and in effect discharged the claimant because the employer had learned that the claimant had engaged in gambling in the latter part of the previous week. The claimant acknowledged that he had gambled but stated that he had other things to attend to also and he saw no necessity in returning to work before the expiration of his leave. The company rules provided that the employee should not engage in other work for profit while on leave - the claimant testified that there was no "profit" from his gambling. The Board found the claimant eligible, and stated: The employer has not shown that the claimant's absence in any way affected the employer's interests, and any gambling activities the claimant may have engaged in during this period were not on the employer's premises or under circumstances connecting the claimant with the employer. . . though the claimant has been warned that one more violation of the rule would result in his discharge, this warning was given with respect to the claimant's activities during working hours and while on the company premises. The occasion for the claimant's discharge was not for violation of this rule for he was on leave of absence at the time and away from the employer's place of business. However, gambling or game playing off the job could be misconduct under certain circumstances. Title 22, Section 1256-42(d) provides: An employee's gambling or game playing off the job would not be misconduct unless this affected the employee's ability to work or caused a substantial injury to the employer's interests. This could occur if an employee who holds a position of financial, supervisory, or executive trust engaged in public gambling with adverse effect on the employer. The employer would be affected if customers or potential customers identified the employee with the employer and criticized the employee's public gambling, or withheld business from the employer. What if the employer had participated in the employee's gambling activities? Title 22, Section 1256-42(d) also provides: In no event would an employee's gambling or game playing be misconduct if the employer had ordered, participated in, or condoned the employee's activity.

D. Money Matters

This subsection discusses discharges resulting from a claimant's violation of an employer's rule regarding the handling of employer funds. (If the employer terminates the claimant for cash misappropriation or cash shortage, see Dishonesty, MC 140.)

Title 22, Section 1256-42(f) provides:

Many employers establish rules governing the handling of . . . money by employees in their work. Some intentional violations of these rules can have a potential for substantial injury to the employer's interests and a single violation can be misconduct. Other violations can cause relatively minor injury to the employer's interests and not be misconduct in the absence of prior warnings or reprimands by the employer for similar prior violations.

Example - Repeated Violations:

The claimant was employed as a salesclerk. Evidence indicated that she was thoroughly familiar with established employer rules which required that all sales be recorded on the cash register and that any sale incorrectly registered was to be called to the supervisor's attention. The employer records also showed that the claimant had previously received a written warning for her failure to register an item on the cash register. She was discharged following a subsequent incident in which she sold an item which was on special sale. When asked if she had recorded the sale on the cash register, the claimant indicated she had. However, a detailed check of the register tape failed to find the sale recorded. When so advised, the claimant then stated that she had recorded the sale on another register as two items, one showing the sales price and the other the sales tax. She offered no explanation for not having advised her supervisor that the sale was incorrectly registered. The claimant was discharged, after a review of the second register tape, in the presence of the claimant and a union official, failed to reveal any item or combination of items that would total the sale involved. The claimant was thoroughly familiar with the practice requiring that each purchase be registered at the time the transaction was completed. Even though she had received a prior written warning for the same offense, she deliberately disregarded the employer’s interests and did not register the transaction in question. The claimant’s actions were a material breach of a duty owed the employer and the resulting discharge was for misconduct. On the other hand, in the absence of a prior warning, unless the claimant's actions clearly show deliberate or wanton disregard of the employer's interests, there will be no misconduct.

Example - Repeated Violations, No Warnings:

The claimant was a checker who was dismissed for failing to record a transaction. On two separate occasions, a "shopper" presented herself at the claimant's register when the claimant was in the process of checking out another customer, gave the claimant the exact change for a purchase, and left. In each instance, the "shopper" remained in the area for only a few minutes, but during this time did not see the claimant ring up the sale. An examination of the register tape on each occasion did not establish that the purchase was recorded within the next ten transactions. The employer assumed that if a sale was not recorded within that time it was not thereafter recorded. The claimant stated that although he sometimes failed to record transactions immediately due to the press of other duties, he believed that he always recorded such transactions before the end of his shift, and that any cash received by him was always deposited in the cash drawer. The employer did not contend that the claimant was guilty of any dishonesty and the stated that the claimant had never been cautioned or warned concerning the violations for which he was discharged. The violations for which the claimant was discharged were committed by him in a good faith attempt to serve his employer's customers better and faster. The claimant was never warned by the employer that he appeared to be violating company procedure. Because claimant's actions were isolated instances of negligence or good faith errors in judgment, there would be no misconduct. While the preceding examples involved repeated violations of rules, it is possible that even a single violation of a rule governing the handling of employer funds may be misconduct if it substantially injures or tends to injure the employer's interests.

Example - Single Violation With Substantial Potential Injury:

The claimant, a cab driver, was required to keep a log of his daily fares on a trip sheet. In addition, the cab meter contained a master sheet which recorded the mileage and the fare paid for each trip. As a public utility the company operated under strict state and city regulations requiring detailed information on every driver. On one day a comparison of the claimant's trip sheet and the master sheet showed a discrepancy of twenty unpaid miles. The claimant blamed the discrepancy on the faulty recording mechanism in the meter. However, the employer checked the meter and found it accurate. The claimant was discharged when he would not explain the discrepancy. Although there was no allegation that the claimant misappropriated fares, the discharge was for misconduct because: The potential injury to the employer was substantial due to the strict state and city regulations, and The claimant's failure to explain the discrepancy between the master sheet and the trip sheet could only be considered a deliberate violation of the rules.

E. Motor Vehicles

This subsection discusses eligibility issues present when the claimant is discharged because of improper handling of motor vehicles belonging to the employer, or unauthorized use of the employer's vehicles when such acts are contrary to employer rules. For a general discussion on the unauthorized use of the employer's property, see Dishonesty, MC 140.

Title 22, Section 1256-42(g), provides:

If an employee's wilful or wanton violation of an employer rule for the use, maintenance, or operation of a motor vehicle involves potential substantial injury to the employer's interests, a discharge for violation of the rule is for misconduct. If a violation of an employer rule involves less serious consequences, a discharge for the violation is not for misconduct in the absence of prior warnings or reprimands for similar violations by the employee. It is the employee's responsibility to comply with the employer rules regarding the operation of the motor equipment if these rules are known to him or her. It is also the responsibility of the employee to comply with the law. The breaking of an employer rule, or the law, in operating a motor vehicle frequently constitutes a serious breach of duty which may cause substantial injury to the employer as well as to the life and limb of others. An automobile or truck is a deadly instrument if operated carelessly. Substantial cost may be incurred in repair if it is operated without sufficient safeguards pertaining to maintenance. Accordingly, improper operation of motor vehicles frequently results in a discharge for misconduct if substantial damage results, even though it may be a single act of negligence.

Example - Improper Operation Violating Employer Rule:

The claimant was a commercial salesperson. The claimant drove a company truck in his work. The employer has a policy which required the claimant to operate the employer's vehicles in accordance with state law and in a safe and proper manner. About seven months before his discharge, a training specialist rode with the claimant in his vehicle, and reported that the claimant drove at speeds of 60 miles per hour and above the posted speed limit on surface streets. The claimant was counseled after this report. Subsequently, the employer received two complaints from people who observed the claimant driving on public highways. The claimant was then counseled and warned that he must abide by all legal regulations and company policy while operating a company vehicle. The claimant was specifically warned not to exceed the maximum limit of 65 miles per hour unless posted otherwise. Shortly before the claimant's discharge, the employer, in accordance with his usual practice, installed a tachograph instrument on the claimant's truck without the claimant's knowledge. The instrument was left on the vehicle for seven days and recorded every action and motion of the vehicle during that seven day period. It showed that the claimant was exceeding 70 miles per hour at times and this occurred on six out of the seven days involved. The claimant was then discharged. The discharge was for misconduct. The claimant had been counseled and warned not to violate safety rules and stated speed limits. The claimant continued to violate these rules. His actions were a wilful disregard of the employer's interests.

Example - Improper Operation Causing Substantial Injury:

The claimant, a cab driver, fell asleep while driving his cab and became involved in an accident. The claimant acknowledged that he had not had sufficient sleep, that the heater was on in his cab and all the windows were closed. Substantial damage was incurred to the vehicle and the passengers safety was endangered. A motor vehicle is recognized as a potentially dangerous mechanism, the claimant had a high degree of responsibility and duty to the employer, to the drivers of other automobiles, and to the taxicab passengers who had to rely upon him for safe passage. It is well known that falling asleep is a common cause of automobile accidents; and this claimant, as the driver of a taxicab, had an added responsibility in taking proper precautions for his safe handling of the vehicle. His failure to take such precautions manifests a high degree of carelessness if not a deliberate disregard of the standards of behavior which the employer had the right to expect of this employee. Not all improper operations of motor vehicles, however, result in a discharge for misconduct, especially when the claimant is discharged for an isolated instance of negligence.

Example - Improper Operation of Motor Vehicle not Considered Misconduct:

The claimant was hired to drive his employer's new cars from a freight depot to the company's storage warehouse. The cars had been shipped directly from the factory and were serviced (or supposed to be serviced) as they were unloaded. The employer stated that oral warnings had been given all employees to use care in checking oil and water levels before driving the cars, and that any driver who damaged a car because of failure to do this would be discharged. The claimant, while driving one of the automobiles, damaged a connecting rod because the car had no oil in it. The claimant denied that he had received prior warnings. Additionally, there was dispute as to whether the oil gage, which would have informed the driver that no oil was in the crankcase, was operating correctly or not.

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The evidence in this case does not disclose more than a single negligent act as the result of which the claimant was immediately discharged. There is no evidence of repeated instances of negligence by the claimant, nor is there evidence that the claimant wilfully or intentionally disregarded the employer's interest." The claimant's repeated unauthorized use of his employer's vehicles would generally constitute misconduct unless such acts had gained the employer's tacit approval. (For instance, a salesman may, by custom, drive the employer's auto or truck to his own home at the end of the day.)

F. Removal of Property:

An employee may be discharged for violating an employer rule regarding the removal of the employer's property. An employee may remove the employer's property from the premises of the employer only with either express or tacit permission. Failure to gain such permission may lead to discharge, which could be for misconduct.

Title 22, Section 1256-42(h) provides:

An employee's wilful or wanton removal of an employer's property from the employer's premises in violation of an employer rule known to the employee and without the express or implied permission of the employer is misconduct, unless the property is of little or no use to the employer. What if the employee contends that he or she just "borrowed" for his or her own personal use such company property as company tools, furniture, typewriters and personal computers, and that he or she has every intention of returning the property? Such a "borrowing" is misconduct if the removal of the property is without the employer's permission and in violation of a known employer rule. If the claimant is discharged for stealing, unauthorized possession and use of the employer's property, see Dishonesty, MC 140.

G. Safety Regulations

This subsection deals with eligibility principles to be applied when a claimant was discharged because he or she broke an employer rule relative to safety. Section 1256-42(i) of Title 22 provides guidelines and states: Employers may establish rules to protect the safety of employees or those who purchase or use the employer's product or services. Safety rules are almost always reasonable. An employee's wilful or wanton violation of such safety rules is misconduct if the employer's interests are substantially jeopardized or injured or if the violation is repeated after the employee has been given warnings or reprimands. Thus the breaking of those rules would be misconduct if the violation either: injures or would injure substantially the employer's interests; or is repeated after warnings or reprimands.

Example - Substantial Violation:

The claimant, an assembler for an aircraft manufacturer, rode a bicycle across a runway of the airport terminal. The claimant testified that he had never observed any planes landing upon that particular runway and was not aware of company rules prohibiting such conduct. However, the evidence showed that signs prohibiting the entry of unauthorized individuals upon the airstrip were posted in the area through which the claimant would be required to pass in order to reach the runways and that his presence was not authorized. It further appeared that a plane was approaching that runway and had to pull up and circle around in order to avoid hitting the claimant. It is clear that the claimant performed the act which resulted in his discharge, and that such act was in violation of a reasonable company rule prohibiting such conduct. While the claimant contended that he was not cognizant of the rule prohibiting the presence of other than authorized individuals on the runways, it is evident from his own testimony that he was aware of the potential danger created by his conduct for he stated that he entered the airstrip only after ascertaining that no planes were within his view. Furthermore, signs were posted at various vantage points on the premises prohibiting entry onto the airstrip. Even though there was no prior warning or reprimand, the discharge would be for misconduct. By his action, the claimant was endangering not only himself but also the crew and passengers of the landing plane, which easily could have crashed due to the pilot's attempt to avoid the claimant.

The following is an example of repeated violation after warnings or reprimands.

Example - Repeated Violation After Warnings or Reprimands:

The employer had a rule which required all welders to wear safety glasses while in the performance of their duties as welders. The claimant knew of this rule and had violated the rule on occasions prior to that of his discharge. He had been warned to wear safety glasses while spot welding. On the day of his discharge the claimant did not wear safety glasses as required and was discharged. The discharge would be for misconduct. The claimant knew about the rule and had been warned after prior violations. It should be noted that an employee cannot successfully plead that no misconduct is involved by the mere fact that he or she is the only one who might be endangered. If a welder refused to wear safety goggles while welding, the argument that his or her own eyes were the only ones in jeopardy would not be a valid argument. If the claimant's eyes were injured, the employer would suffer too. The employer would suffer because of increase in insurance rates, personnel replacement expense and lost production, for example. Where the evidence is not conclusive that a specific employer rule had been broken, the discharge would not be for misconduct.

Example - Violation Not Conclusive:

The claimant, a bus driver, was traveling across the Oakland Bay Bridge with many passengers and following another bus with only fifteen to thirty feet between the two buses. The bus in front of the claimant's bus stopped suddenly, and the claimant applied brakes that failed to function properly and a collision occurred. The claimant testified that it was common practice for bus drivers to follow other buses closely in order to keep lighter vehicles from cutting in front of them. The claimant was discharged with a notice that "you were responsible for accident when you failed to drive your bus defensively, failing to maintain proper distance between vehicles in accordance with State laws and company rules and regulations. . ." There is no evidence to show that the claimant did in fact violate any provision of the Vehicle Code or any specific rule or regulation of the employer as stated by it in its notice of dismissal. The evidence fails to show such conduct on the part of the claimant as to evince a wilful or wanton disregard of the employer's interest. The claimant would be eligible because the evidence is not conclusive that a specific employer rule had been broken - driving "defensively" is not specific.

H. Store Purchase

This subsection discusses discharges resulting from the claimant's alleged violation of an employer rule relative to the purchase of goods from the employer's store. Employee's Purchase of Goods Many employers in retail merchandising establish rules governing the purchase of merchandise by their own employees. For example, an employer might require that each purchase by an employee be accompanied by a sales slip, or entered into a ledger or record book. The purpose of employer rules of this type is often to prevent theft by employees. It is incumbent upon the employee to comply with these rules. Violation of these rules may be misconduct as Title 22, Section 1256-42(j) states: An employee's wilful or wanton violation of an employer's rules relating to the employee's own store purchases ordinarily involves substantial injury or tendency to injure the employer's interests and is misconduct. Example - Violation of Purchase Rule: The claimant was the manager of the camera and jewelry department of a general merchandise store. In that capacity, she was responsible for supervising two or more employees. On the last day of work, after working about four hours, she was preparing to take her one hour lunch break. Immediately prior to going on break, she went to the checkout stand area of the store and obtained a carton of potato chips from a display rack near the checkout stands. She did not pay for the potato chips at the time but instead took them to the lunch room and ate about half of them along with other lunch items she had brought. Half an hour later s he put the remainder of the potato chips in her personal locker and then spent some time doing personal shopping in the store. She finished that shopping, including paying for those items, and returned to work. About two hours later, after a meeting with the management team, she was discharged for consuming part of the potato chips without having paid for them. The claimant was aware that the employer had a rule prohibiting "consumption of a product not paid for." The claimant explained that she did not pay for the potato chips when she initially got them because she did not want to wait in the checkout line and thus shorten her lunch break. Then she forgot to pay for the chips until it was time to return to work and there was then no time left for her to make payment at the check stand. She further testified that she intended to make payment at her next break which would occur about two hours later. The discharge was for misconduct. The claimant violated an employer rule which was reasonable and which she was aware of. The violation was a serious one considering the fact that the claimant had supervisory responsibilities and was required to set a good example for her subordinates and coworkers. Her explanation about intending to pay for the merchandise later did not justify the rule violation. Contrast it with the following case. Example - Rule Violation Due to Poor Judgment: The claimant was a salesperson and had worked for the employer for five years. He was discharged because he violated an employer rule, which required that employees not ring up their own purchases. The claimant was aware of the rule. The claimant explained that on the day in question, it was near closing time and they were very busy. The only other employee in the area available to ring up the purchase was busy with a customer. In an attempt to save time, the claimant rang up the purchase of a mirror for $20. He made a proper ring of the sale, paid cash for the purchase, advised the coworker of what he had done and left the sales slip for the appropriate comparison. He did not feel that his action was a violation as the employer rule was intended to prevent theft and insure accuracy. He had not had any infractions of policy throughout his stay with the employer. The discharge was not for misconduct. There was no intent to defraud the employer. There were no prior rule violation. The claimant's failure to follow the reasonable rule is considered an isolated instance of poor judgment. When the infraction is minor, there is no misconduct in the absence of prior warnings or reprimands. Example - Minor Infraction of Purchase Rule: The claimant worked in a drugstore fountain. He was fired when he left the employer's store with a purchase (under $1) which was not accompanied by a sales slip. The employer stated that there were forty-three rules each employee was required to know and that the rule providing that all purchases must be entered in an employee's purchase book was one of them. This had not been done in this case. The claimant stated that he did not know of this rule, that he had only purchased cigarettes before, but did so without any such entry. He stated he had not waited for a receipt because the purchase was from the drug department and the pharmacist was busy. The claimant's unfamiliarity with the rule requiring the recording of employee purchases, the lack of a showing that the claimant had been previously warned or that the rule had been brought to his attention although the claimant had made small purchases without having them recorded, together with the fact that a showing was not made that the claimant deliberately violated the rule, indicate that the claimant was not guilty of misconduct. Purchase by the Public On rules governing purchases by the public, Title 22, Section 1256-42(j), provides: Employers may also establish rules governing the wrapping, mailing, delivery, charging or exchange of purchases by customers. An employee's violation of employer rules relating to store purchases by customers usually will be relatively minor in consequences and is not misconduct, unless the violation occurs after prior warnings or reprimands for similar violations.

I. Telephone Calls

An employer may have a rule forbidding an employee from making unauthorized long distance calls while on the job. This rule is reasonable because by making unauthorized long distance calls, the employee is in effect stealing from the employer. If an employee is discharged for making unauthorized long distance calls and the employee knows about the rule, the discharge would be for misconduct. An employer may also have a rule forbidding an employee from making personal calls except for emergencies while on the job. This rule is again reasonable because personal calls would disrupt the employee's work, and may also disrupt other employees' work. A wilful violation of this rule will be misconduct if the claimant has been warned or reprimanded about its violation.

Example - Personal and Long Distance Calls

The claimant worked for a hospital. Hospital policy provides that hospital phones would be used only for hospital business. There were pay phones located in the hospital for employee and visitor use. Employees were to use these phones on the employees' break periods. The claimant stated that he was in an annex away from the hospital and the closest pay phone was approximately a block away at a hotel. He did not want to use that pay phone because his supervisor had warned him before about returning from breaks late. He used hospital phones to make several long distance calls and lengthy personal calls to a close friend during a two week period because he was concerned about the friend who had just become unemployed. He had been warned not too long before that personal calls were prohibited during working hours as they took away time for which he was paid. The discharge was for misconduct. The claimant deliberately violated a reasonable employer rule which he was aware of. Moreover, by making those unauthorized long distance and lengthy personal calls, he in effect was stealing from the employer.

J. Time Clock

This subsection discusses discharges due to the claimant's violation of an employer rule relative to the use of the time clock. Section 1256-42(k) of Title 22 provides guidelines in determining if these discharges are for misconduct or not. It provides: Employers in some establishments have rules for employees reporting into and out of work requiring punching time clocks. Often the rule is that each employee must personally punch the time clock. An employee's knowing violation of such a rule is misconduct, unless there is no falsification of time worked by the employee and the violation is an isolated instance. Intentional substantial falsification of time worked is misconduct. In virtually all places of employment where time clocks are used, the time card is the document on which time and payroll figures are based. If the claimant substantially falsified, or asked another to falsify for him or her the time card, the employer's interests would be damaged to the degree that the claimant was paid for time that he or she had not worked. Such a violation would be a wilful and flagrant disregard of the employer's interest.

Example - Have Another Person Punch Time Card:

The claimant, a guard for a packing company, decided to leave early because he wanted to visit his mother who was very ill. He left the plant at 2:30 p.m. and had another guard punch out his time card at the normal quitting time of 3:00 p.m. There was an established employer rule that each employee must punch his or her own time card. When the employer learned of the claimant's actions he was discharged. The claimant showed such an intentional and substantial disregard of the employer's interest and of his duty and obligation to his employer as to constitute misconduct. This was particularly true because as a plant protection officer it was one of the claimant's responsibilities to see that the employer's general rules of conduct bearing on plant discipline were maintained. Even had the claimant not been a guard, however, the claimant should be held ineligible as he deliberately asked someone to falsify his time card. It is possible, of course, that the claimant might ask another person to clock out for him or her in order to save the trip across the plant to the time clock. If the claimant alleges this, the interviewer should determine the existence of the known rules relative to this practice. It would also be advisable to verify the distances from the claimant's work station to the time clock, and to the exit. Under some circumstances, these facts may reveal that the claimant is guilty, at most, of a minor isolated rules infraction, and that the time records were not falsified. Even under these circumstances, however, repeated violations after warnings would constitute misconduct.

edd.ca.gov - Misconduct MC 485 - EDD - CA.gov

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