Cal. Code Regs. tit. 22 § 1256-38
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.
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.
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.
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.
EXAMPLE 5. Gross Negligence. As a captain-pilot for a large airline, E was in charge of a plane with 29 passengers and 5 crew members aboard. The first officer was piloting the plane as it approached for a landing, with the captain-pilot under flight rules responsible to carry out the first officer's orders. The first officer ordered "gear down" for landing, but E failed to put the gear lever in full operating position and check the performance in accord with standard procedures. E thought the gear was down. The plane landed with wheels up, resulting in about $250,000 damage but no injury to passengers or crew. The employer discharged E.
E's failure was gross negligence and was misconduct. E knew and failed to follow employer rules resulting in the hazard of substantial loss of life and property with no reasonable explanation.
EXAMPLE 6. Repeated Negligence After Warning. F was a cutter in a shirt factory. F was instructed that in order to prevent damage to the shirts, each cutting machine was equipped with a wide blade for use with heavy materials and a smaller blade for use with light materials. Nevertheless F continued to use a wide blade on light materials. On each occasion the employer admonished F to use the proper blade for the proper material until finally the employer discharged F.
F's action was negligent after repeated warnings and was misconduct.
EXAMPLE 7. Substantial Negligence. G, a taxicab driver, was involved in a series of six accidents within a short period of time while driving a cab. In addition, G repeatedly violated traffic laws by failing to make boulevard stops, by driving on the wrong side of the street, and by making prohibited mid-block "U" turns. The employer had given G a safety course and as each accident occurred discussed preventive measures. The employer gave G a disciplinary suspension following one of the accidents. Shortly after a later accident, the employer was held liable in damages and discharged G.
G's action was misconduct because it was clearly substantial, prejudicial to the employer's interests, and not the result of mere inefficiency.
EXAMPLE 8. Good Faith Error in Accident. H was a cab driver. H was en route to pick up a passenger when H was hailed by a person on the opposite side of the street. H glanced off the road toward the person in accordance with a company policy to identify possible customers and report cab requests to the company dispatcher. H was involved in a minor accident as a result of this action. The employer discharged H.
H's action was not misconduct, but at most was a good faith error in judgment in an attempt to carry out company policy.
EXAMPLE 9. Good Faith Error in Judgment Not Shown. I, a security guard who has been assigned to a certain highly classified radio installation in an aircraft plant, was informed of its priority and importance. I was told that I cannot receive overtime pay but was never specifically instructed to remain on guard until such time as relief arrives. At I's normal quitting time, no one was sent to relieve I. I left the classified area unguarded. The employer discharged I for leaving the post unguarded.
In this instance, I, unrelieved at quitting time, was called upon to make a decision that requires considerable judgment--whether to continue work and possibly receive no overtime pay for time worked or whether to leave the radio installation unguarded. I's failure was misconduct because I failed to exercise reasonable diligence and knowingly acted in a manner prejudicial to the employer.
Cal. Code Regs. Tit. 22, § 1256-38
2. Amendment of subsection (d)(2) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).
Note: Authority cited: Sections 305 and 306, Unemployment Insurance Code. Reference: Section 1256, Unemployment Insurance Code.
2. Amendment of subsection (d)(2) filed 1-28-82; effective thirtieth day thereafter (Register 82, No. 5).