©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 366 15. Unemployment Compensation 15.1 Conditions for Eligibility Both full-time and part-time employees may be eligible for unemployment compensation in California if they meet certain eligibility criteria.1 Unemployment benefits will reflect whether the employee (1) has earned more than a set amount in the past, (2) is unemployed (or has suffered a reduction in hours and is earning less than the weekly benefit amount) through no fault of the employee, and (3) is able, available, and actively seeking work.2 Legislation imposing the ABC test to determine whether a worker classified as an independent contractor is really an employee also applies to the Unemployment Insurance Code.3 The Legislature, declaring that the “motion picture and television production industry is an essential part of the California economy with its historical and current base in California,” has provided that motion picture production workers, for purposes of unemployment insurance coverage, will get credit for out-of-state work if the individual is a California resident, is hired and dispatched from the state, and intends to return to the state to seek reemployment following the out-of-state work.4 Claimants for unemployment benefits cannot be disqualified solely because they are available for part-time work.5 If claimants restrict their availability to part-time work, they may still be considered able and available for work if all of the following conditions exist: (1) the claim is based on part-time employment, (2) the claimant is actively seeking and is willing to accept work under essentially the same conditions as existed while the wage credits were accrued, and (3) the claimant imposes no other restrictions and is in a labor market in which a reasonable demand exists for the part-time services that the claimant offers.6 15.2 Ineligibility and Disqualification Discharge for misconduct results in disqualification for unemployment compensation benefits.7 But California creates a rebuttable presumption that the employee was discharged for reasons other than misconduct.8 The employer bears the overall burden of proving “misconduct.”9 Misconduct is conduct showing “willful or wanton disregard of the employer’s interest.”10 Mere inefficiency, unsatisfactory conduct, poor job performance, ordinary negligence, and good faith errors in judgment are not misconduct.11 The California Supreme Court has concluded that an employee’s refusal to sign a disciplinary notice was not misconduct but, at most, a good faith error in judgment that did not disqualify him from unemployment benefits.12 Voluntary termination of employment also generally disqualifies an individual for unemployment compensation.13 And an employee can “constructively quit” by engaging in conduct that gives the employer no reasonable alternative but to discharge her.14 The Court of Appeal has considered a case in which an employee on leave had requested unacceptable assurances before she returned to work. The employer thus treated her as having quit and the Unemployment Insurance Appeals Board upheld the denial of her claim for benefits. But the Court of Appeal ruled for the former employee, holding that the employer should have called her bluff and ordered her to return to work without her conditions being met, instead of preemptively dismissing her on an assumption that she would stick by her request for unacceptable conditions.15
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