I Was Fired From My Job – Will I Be Eligible For Unemployment Insurance?

There is no single definition of “misconduct” in the context of applying for unemployment insurance, so it’s not always easy to tell whether the reason your employer had for firing you will count as “misconduct.” But misconduct is more than just poor performance, or things not working out between you and your employer.  The following are four factors that the EDD and judges look at to determine whether the facts surrounding your case count as “misconduct”:

1. You owed a “material duty” to the employer, which means that it was your responsibility to follow a certain rule or set of rules.
2. There is a “substantial breach” of that duty, which means that you did not fulfill your responsibility or did something you were prohibited from doing.
3. The breach is a “willful or wanton disregard of that duty,” which means that it was not just a simple, isolated mistake – there was more intent or negligence in your actions.
4. The breach “injures or tends to injure” the employer’s business interests, which means that the failure to do or not do something can negatively affect the employer’s business, usually financially.

It is important to remember that the EDD and the employer have the burden of proof on this issue. That means that the EDD or employer must prove all of the above to properly determine if someone was terminated for misconduct. If you are able to challenge and knock out one of these factors, then the EDD should still find you eligible for unemployment benefits even though you were fired.

Even though whether something is “misconduct” or not is based on the specific circumstances of your case, there are some situations that come up a lot that the EDD usually determines to be misconduct. The following is a list of some of these situations:

• Repeated instances of tardiness to work or unexcused absences in violation of the employer’s policy.
• If you were dishonest with your employer about something related to your work.
• If you are rude or attacking towards your co-workers.
• If you have a public-facing job (for example, you work in retail in a store), if you were rude or aggressive towards customers.
• Direct insubordination, like refusing to carry out a standard task, or exceeding your authority by doing something you know you were not allowed to do.
• Alcohol or drug consumption while on the job.

There are also common examples of things that the EDD might call misconduct, and which on the surface fits the factors discussed above, but when more details come in, it becomes clear that the situation is not an example of misconduct. The following is a list of some of these situations:

• A single, isolated example of being late or not following the procedure for requesting time off.
• A single example of making a good faith error, or error in judgment.
• Poor work performance, despite you trying your best to fulfill your responsibilities and perform well.
• Your employer firing you for something they never warned could be a reason for you to be fired, or which they never discussed previously with you before deciding to fire you.

The last point is very important. Normally, an employee has to be on notice that a certain infraction or type of behavior will expose them to the possibility they will be fired. This can come in the form of a direct conversation between you and your employer, or can be included in documents such as an employee handbook or policy guide. If you were fired for a relatively minor offense or for something you did by accident, and the employer fired you before warning you that you could be fired for that or never reprimanded you for similar behavior, there is a very good chance you will still be eligible for unemployment insurance. If this is the case, be sure to mention on your application for benefits that you were never warned or reprimanded for the action that led to your termination.

If your employer gives you the option to either resign or be fired, that is still a situation where your job ended involuntarily. This is because if you did not resign as they asked, you would have been fired anyway. In these situations, the ending of your employment will still be considered a “termination” or “discharge” (which basically mean the same thing), because you did not voluntarily choose to quit your job.

Although sometimes these words are used interchangeably in common speech, being “laid off” from your job is different in the context of unemployment insurance than being “discharged.” Being laid off means that a worker is unable to continue working at their job because the position was eliminated, or the employer no longer had the money to pay the worker in that position. Being laid off for these reasons is different than being “discharged” or “terminated,” because you did not contribute or cause reason for the separation by breaking a rule or acting negligently in your job. A worker who has been laid off should automatically be considered eligible for unemployment insurance. If your former employer protests your application and says you were actually terminated for misconduct, but that is not how you remember the separation, this would be a good argument against your employer so that you can still get benefits.

If the EDD determined you were not eligible for unemployment benefits because they decided you were discharged for “misconduct,” but you don’t think this is the correct decision or want a judge to doublecheck the EDD’s decision, then you should appeal the EDD’s decision. You will have a hearing in front of a judge to argue your side of the story. For more information on what documents the EDD sends to people and how to appeal their decision, look at our fact sheet, Appeal a Notice of Determination or Notice of Overpayment: How to Protect Your Unemployment Insurance Benefits.

When you appeal, you’ll have a hearing before a judge, where you can explain what happened at your job and make arguments about why the EDD’s decision is wrong. When you are at the hearing and answering the judge’s questions, there are some common explanations to argue against the decision that you were discharged from your job for misconduct. Here are some common defenses you can use:

1. You honestly tried your best at your job, but were terminated for performance reasons.
   • As explained above, “misconduct” in the unemployment insurance context does not simply mean you did not fulfill your employer’s expectations or desired job performance.
   • If you honestly did your best at your job, and tried to address any issues with your work the best you could, you should not be disqualified for “misconduct.”
   • If your employer told you about issues with your work that needed improvement (for example, with a Performance Improvement Plan), and despite doing your best to improve you were still fired, do your best to explain what the issues were and what you did to improve your performance and comply with your employer’s requests.
2. You were fired for a single, isolated incident.
   • Unless the action is really bad—for example, you stole money from your employer—if you were fired for a single infraction without being given the opportunity to improve at work, this likely will not count as “misconduct.”
   • At your hearing, explain and be honest about what the infraction was, and make clear that it only happened one time and you were terminated for that one infraction.
3. You were never warned that something you had done could get your fired.
   • Workers have to be aware about what kind of actions can be grounds for termination. If you were doing your job a certain way for a while (for example, filling out timesheets in a certain way), and your employer suddenly, without any warning, fired you because that was not the correct way to do something, you can explain that you did not realize you were doing anything wrong.
   • Explain to the judge that you were never made aware that what you were doing was a fireable offense, either directly or in an employee policy manual, and that you were fired without any warning or opportunity to correct your behavior.
4. The incident was not as severe as the EDD thought.
   • Sometimes, the EDD interprets an event as much more severe and serious than it was in reality. One scenario that is common is thata conflict or argument between co-workers results in one or both of them getting fired. Conflicts sometimes happen between co-workers, and it is not “misconduct” to be fired for an interaction that is part of the normal “give and take” of a job where people sometimes come into conflict. If you were fired for some kind of interpersonal conflict between you and another co-worker, but the EDD got the details wrong and found you disqualified for that reason, then you should appeal to set the story straight with the judge.
   • Explain the incident carefully to show the judge how the incident or argument was not as serious as the EDD thought, and that you did not contribute to it escalating or that you tried to resolve things, but were fired anyway.
5. Your employer previously condoned what they decided to fire you for.
   • Sometimes if a worker has a specific need, the employer allows them to do something that normally wouldn’t be allowed. For example, if you need to drop off and pick up your child from school, but those hours are normally when you would be working, your employer might allow you to arrive late or leave early to fulfill your childcare responsibility.
   • If your employer allowed something like this, but later decided to fire you for it, you should not have been disqualified from benefits and you should appeal.
   • Explain to the judge what kind of actions your employer previously condoned, and that before you were fired, you were never told that you could no longer act in this way.