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 1256-38 - Discharge for Misconduct -Manner of Work Performance

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a) Scope. This section relates to whether
						  misconduct exists under Section
						  1256 of the code where an employee
						  is discharged for neglect of duty or failure to perform the assigned work
						  properly. Section
						  1256-30 of these regulations set
						  forth general principles also applicable under this section.
An individual's failure to perform work properly or
							 neglect of duty is willful and misconduct if he or she intentionally,
							 knowingly, or deliberately fails to perform, or performs in a grossly negligent
							 manner, or repeatedly performs negligently after prior warning or reprimand and
							 in substantial disregard of the employer's interests.
EXAMPLE 1. Deliberate Failure. A was employed by a
							 large winery. A was assigned to assist the operator of a filter pump in
							 transferring wine to an empty vat. A's known duty was to attach the end of the
							 hose to the intake valve of the tank and then to check the lower valve to see
							 that it was closed. A and other employees, however, had devised an alternate
							 form of operation which was at variance with the one prescribed by the
							 employer. In performing this transferring operation, A failed to check the
							 lower valve and several hundred gallons of wine were lost before it could be
							 closed. The employer discharged A.
A's action was deliberate and was
							 misconduct.
(b) Intentional,
						  Knowing, or Deliberate Failures. Some of the situations in which intentional,
						  knowing, or deliberate failures of work performance occur are failures in
						  quality or quantity of work or in relationships with the public.
(1) Quality of Performance. Ordinarily
						  inability or incapacity to perform the job or inefficient performance is not
						  misconduct. However, misconduct exists if inability, incapacity, or
						  inefficiency is due to one's willful failure to perform to the best of his or
						  her abilities. Thus, if an employee's inadequate performance is the result of
						  circumstances within his or her control and he or she does nothing to improve
						  the performance, there is a willful failure to perform adequately which is
						  misconduct. An employee's inefficiency may be misconduct if he or she
						  previously demonstrated the ability to do better, work performance has
						  substantially deteriorated, and there is no reasonable explanation for the
						  deterioration.
EXAMPLE 2. Deliberate Inefficiency in Quality. B was
							 a precision assembler who was discharged from employment. For the first three
							 years of employment, B's work had been entirely satisfactory but then had
							 deteriorated. B had no excuses to the employer for B's poor work other than the
							 fact that B's poor eyesight had hampered B in doing close work. B refused to
							 consult an optometrist because B was unwilling to wear corrective lenses. The
							 employer discharged B.
B's discharge was for misconduct since the reason for
							 B's inefficiency was within B's power to control and the failure was
							 willful.
(2) Quantity of
						  Work. An employee's failure to produce the required quantity of work is
						  misconduct if the employee was capable of meeting, could have met, and
						  continually failed to meet the employer's reasonable quantity standards after
						  reprimands or warnings. If an employee's unsatisfactory quantity of work is
						  caused by some factor within his or her control, there is a duty to do whatever
						  is reasonably necessary to bring the quantity of work up to an acceptable
						  level.
To establish misconduct for failure to perform the
							 required quantity of work, the employer's quantity standards must be
							 reasonable. A standard is reasonable if the employee has, in the past, met or
							 surpassed that quantity standard. Moreover, standards are reasonable if other
							 employees of like age, experience, intelligence, and abilities have
							 consistently met or surpassed the employer's quantity standard.
The fact the employer has, on several occasions,
							 raised the quantity standards does not alone negate misconduct. It is the
							 employer's right to adjust the standards in a manner consistent with the best
							 interests of the employer so long as this adjustment does not exceed the bounds
							 of reasonableness.
If an employee has a logical and reasonable
							 explanation justifying failure to provide the minimum quantity of work
							 required, this negates misconduct.
EXAMPLE 3. Deliberate Inefficiency in Quantity. C was
							 a salesperson expected to call on old customers, develop new customers, and
							 submit weekly reports. The employer had reprimanded C for poor performance. C
							 agreed that C should call on at least 30 customers each week. Yet C, without
							 excuse, in 5 weeks made 14 calls in a week, 19 calls in another, and 12 calls
							 in the other 3 weeks, and failed to file 3 weekly reports. The employer
							 discharged C.
C's discharge was for misconduct due to repeated
							 inexcusable failure to meet reasonable quantity standards after reprimands and
							 was willful failure to perform satisfactorily.
(3) Relations with the Public. An employee's
						  discourtesy to the public is misconduct if the acts of discourtesy continued
						  after prior warning or reprimand and the employee has the ability to control
						  the performance. Usually a single or isolated instance of discourteous behavior
						  is not misconduct, but the degree of discourtesy to a patron may be so serious
						  that a single instance alone is misconduct.
EXAMPLE 4. Deliberate Discourtesy to Public. D was a
							 cab driver. His passengers, a group of women, became somewhat noisy and
							 boisterous. D then made improper and suggestive remarks to them and was
							 discharged.
D's discharge was for deliberate serious acts of
							 misconduct.