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

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(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.