Cal. Code Regs. Tit. 22, §§ 1256-36
COMMENTS. Generally, insubordination requires cumulative acts with prior reprimands or warnings. However, a single act without prior reprimands or warnings can be insubordinate if the act is substantially detrimental to the employer's interest. If an employee is discharged after an act of disobedience of an employer's reasonable order and that act is not of itself misconduct but is part of a prior pattern of cumulative acts of insubordinate conduct, the employer must have given prior reprimands or warnings for the acts in the prior pattern in order for the ultimate discharge to be for misconduct (see Example 12, Section 1256-30 of these regulations).
Under paragraph (1) of subdivision (b), the element of willfulness exists if the employee has a basic understanding of the order and knowingly fails to comply. The employee need not thoroughly comprehend the order, but merely understand the essence of the act expected.
EXAMPLE 1. A was employed as a paint and processing utility person. Five times A refused to dust fire extinguishers because A reasonably believed that the work was outside A's job classification. The employer discharged A. Although A's job classification did not specify that A was to dust fire extinguishers, neither did it specify that A was to perform other duties which A readily performed. Six other employees with the same classification did dust their fire extinguishers.
The instructions to A were not unreasonable or unlawful. A deliberately refused to obey after having been warned of the serious consequences. A was discharged for misconduct due to insubordination.
COMMENTS. The following example is applicable to paragraph (1) (B) of subdivision (b), which excuses an employee's noncompliance with an employer's order if the order imposes a new and unreasonable burden on the employee.
EXAMPLE 2. B was hired by a steel supply company as an outside salesperson on a straight commission basis. After a desk order clerk resigned, B's employer assigned the outside salespeople to work on the desk on a rotational basis without compensation. On several occasions B refused to accept the assignment because B's earnings would be reduced by the lack of contact with customers. Consequently, the employer discharged B.
B's failure to comply with the order was not misconduct due to insubordination because the order imposed a new and unreasonable burden on B.
COMMENTS. Under paragraph (1)(C) of subdivision (b), the employee does not have to comply with his or her employer's orders if they are unrelated to the employer's business interest. The employer's control of his or her employees is not absolute. (For additional interpretation of the employer's business interest and reasonableness of employer rules, see subdivision (b) of Section 1256-13 of these regulations.)
EXAMPLE 3. C, who is interested in entering business on C's own behalf, discussed with three other employees the possibility of organizing a new company. The employer told C to forget the idea of starting C's own business and to cease discussions with the other employees. C refused to comply. The employer discharged C.
C's failure to comply did not constitute misconduct due to insubordination, since C's activities did not disrupt the employer's operations.
COMMENTS. Paragraph (1)(D) of subdivision (b) limits the duty of the employee to obey the employer's order if the employee reasonably believes the order is not consistent with the law and so advises the employer who has an opportunity to explain. If the employee concludes solely on his or her own judgment that an order is illegal and does not object to the employer as to the legality of the order, a discharge for noncompliance with the order is for misconduct due to insubordination.
EXAMPLE 4. D was in charge of hiring and firing for D's employer. The employer ordered D to fire a certain employee but did not explain that the employee was to be fired because of lack of work. Because the employee was a good worker, D thought the reason was that the employee was a union member. D believed this would be a violation of the National Labor Relations Act but did not make this objection known to the employer. D refused to fire the employee. The employer discharged D.
D's discharge was for misconduct due to insubordination since the employer was never told of D's objections as to the legality of the order. Whether the order was or was not lawful is immaterial.
COMMENTS. Under paragraph (1)(E) of subdivision (b), the employee does not have to in fact sustain injury if he or she complied with the order. If the employee had a reasonable belief that he or she would sustain injury, then refusal to comply with the order would not be misconduct.
EXAMPLE 5. E was assigned to work which E considered unsatisfactory and detrimental to E's health. E requested a transfer but the employer took no action. E's supervisor asked that E perform certain duties which, as far as E knew, required stooping. E refused to comply with the requests because E was under a physician's care for an ailment which E felt would be aggravated by excessive stooping. The employer discharged E.
E's conduct was not misconduct due to insubordination since E's belief that E would be injured was reasonable.
COMMENTS. Under paragraph (1)(F) of subdivision (b), if the employee's doubts were reasonable, then he or she cannot be discharged for misconduct.
EXAMPLE 6. F, a practical nurse, failed to comply with instructions given to F by another nurse, not knowing that the superintendent issued the order. F refused to follow the instructions because F had been instructed to perform a certain task by the superintendent and did not believe the employee had any authority to countermand orders of the superintendent. F did not inquire as to the extent of the nurse's authority. On a prior occasion an instruction by this employee to F had been countermanded by the superintendent. F had never been informed that the employee occupied a position of authority higher than F's own. The employer subsequently discharged F.
F's discharge was not for misconduct due to insubordination, because F had good reason to doubt the validity of the order given to F.
COMMENTS. Paragraph (3) of subdivision (b) refers to those instances where the employee openly ridicules or openly engages in a dispute with the employer or the employer's representative thereby damaging the employer's interests. Damage in this context includes deterioration of employer control over workers, and negative effects on employee morale or the public or customers of the employer.
Damage occurs when the manner in which an employee disputes with the employer or employer's representative or the time and place of the dispute is inappropriate, especially if there have been prior reprimands or warnings to discontinue such conduct. For instance, insubordination exists when an employee refuses to comply with a reasonable directive and ridicules or engages in a heated argument with the employer or the employer's representative in the presence of the general public, customers or other employees. Threats of violence, insults to the employer or the employer's representative, or remarks made to create dissension among the employees damage the employer's interests because of their negative effect on public reaction, company morale and employer control.
EXAMPLE 7. G, a grocery store wrapper, engaged in a heated argument with G's immediate supervisor on the sales floor after the supervisor had requested that G work a few minutes overtime. G had refused to do so on numerous occasions. This resulted in arguments between G and the employer, often in the presence of customers. The employer discharged G.
G's discharge was for misconduct due to insubordination. The supervisor's request that G work a few minutes overtime did not warrant G's engaging in heated argument with the supervisor in the presence of customers.
COMMENTS. Under paragraph (3) of subdivision (b), not all exchanges between employer and employee result in discharge of the employee for misconduct. In the normal working situation there is a degree of "give and take" between the employer and employee. Ridicule, if used in the joking, kidding sense is not misconduct unless such actions are repeated after warnings or reprimands. Differences of opinion, disagreements, and misunderstandings arise, and participation in such discussions is not misconduct. The circumstances under which the argument or remarks were made are taken into consideration. An isolated instance of an error in judgment is not misconduct.
Under paragraph (4) of subdivision (b), in determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store or government office. The normal exchange among workers differs according to the occupation.
Vulgar language is also used among employees as friendly banter. However, the common and friendly banter of vulgar language between co-workers constitutes insubordination if directed to a supervisor, unless there was a prior relationship between the supervisor and employee which allowed such friendly banter.
The circumstances under which the employee made the remarks are also taken into consideration.
EXAMPLE 8. H was having emotional problems of which H's supervisor was aware. H was also being trained for new and unfamiliar work. One day, while H was engaged in a heated argument with H's employer, H addressed the employer with vulgar language. The employer discharged H for using such language.
Given the circumstances, the single instance of an outburst by H was a mere mistake and error in judgment, and did not constitute misconduct due to insubordination.
Cal. Code Regs. Tit. 22, §§ 1256-36
Note: Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference Section 1256, Unemployment Insurance Code.