California Code of Regulations › Title 22 - Social Security › Division 1 - Employment Development Department › Subdivision 1 - Director of Employment Development › Division 1 - Unemployment and Disability Compensation › Part 1 - Unemployment Compensation › Chapter 5 - UNEMPLOYMENT COMPENSATION BENEFITS › Article 1 - ELIGIBILITY AND DISQUALIFICATIONS › Section 1256-42 - Discharge for Misconduct -Violation of Employer's Rules

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) Scope. This section relates to discharges
						  from the most recent work due to an employee's violation of a rule of the
						  employer. Section
						  1256-30 of these regulations sets
						  forth general principles also applicable under this section. For
						  interpretations of violations of employer rules relating to the manner of
						  performance of work by an employee, see Section
						  1256-38 of these
						  regulations.
(b) General. 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 willful 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. (See Section
						  1256-36 of these regulations
						  relating to an employee's insubordination which includes interpretation of the
						  circumstances under which an employer's rule is reasonable or unreasonable.)
EXAMPLE 1. Nurse A, a medication nurse, was
							 discharged for deliberately reducing by 50 percent the prescribed amount of
							 medication administered to a patient in a hospital without the permission of a
							 doctor. Nurse A knew the hospital rule that medication could not be reduced
							 without consulting the doctor, intentionally did not consult the doctor, and
							 used the nurse in charge as an excuse for reducing the prescribed medication
							 while knowing that the medication was the sole responsibility of nurse A. Nurse
							 A was discharged by the hospital for violating the medication rule.
Nurse A's discharge is for misconduct since the rule
							 was known, reasonable, deliberately disobeyed, material, and affected the
							 employer's interest. However, there would be no misconduct had nurse A
							 established a bona fide belief that a full dosage would be detrimental to the
							 patient, that the regular nurse in charge agreed with this opinion, and that
							 the doctor for the patient had made known to nurse A that the doctor would not
							 object to a reduced prescription dosage in the discretion of the medication
							 nurse and that this practice was common in the hospital. Under the latter
							 circumstances, there is no willful violation of a rule and the practice would
							 have been condoned by the employer, with the result that no misconduct would
							 have been present.
(c)
						  Clothes and Appearance. Some employers may establish reasonable rules which
						  include standards of hygiene, mode of dress, or personal appearance. Individual
						  employees may choose to maintain a mode of dress or grooming or personal
						  appearance in such matters as hair style or beard which does not comply with
						  standards established by reasonable employer rules. Some employers' standards
						  are established to protect the health, safety or welfare of other employees or
						  of the public, or to protect and preserve a particular business atmosphere or a
						  business image of reliability to patrons. The individual employee may decline
						  any reasonable alternative offered by the employer to meet the employer's
						  standards. Under these circumstances, the employer's discharge of an employee
						  is for misconduct and a compelling state interest exists if all of the
						  following three conditions are met:
(1) the
						  employer's rule rationally relates to the enhancement of the employer's
						  business;
(2) the benefit to the
						  employer outweighs the impairment of the employee's constitutional rights;
						  and
(3) there is no available
						  alternative which would be less restrictive of constitutional rights of mode of
						  dress or grooming or personal appearance. 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 employee's refusal to wear a hair net at work or
						  trim long hair as required by the employer rule is
						  misconduct.