violation of email policy

I was terminated in March and was told at time of termination that they could not disclose the reason for my termination and that since I was on probation they did not have to have a reason. My supervisor gave me a contact at human resource and asked me to call her. I called and she too informed me that she could not disclose the reason, I asked her if it was going to prevent me from recieving unemployment and she said no! Well… I recently applied for unemployment and of course now the story is different. The employer is saying I was let go because of date entry errors and company use of emails. It is true that I did use the company email for personal use but as did everyone! I never thought I would be fired for it. I have never recieved a warning verbal or otherwise… Is this grounds for denial? How can I fight this with any chance of winning? Am I wasting my time???

Please understand .. I am not the one who decides whether people get unemployment .. And since I hardly have enough details to make a judgment call as to whether you are wasting your time .. I can’t answer that question.

What I can tell you is that the burden of proof belongs to the employer. They have told the state you discharged for misconduct due to performance issues of not meeting the expected standards rightfully due to them in the performance of your job .. and a violation of the email or internet policy.

Since you say you have never been reprimanded in any way .. I not going to even think about the “data entry” mistakes, but a violation of the email policy .. that’s another story.

You need to start exactly where the employer will need to start .. the policy.

I can’t figure out .. after all the times I have asked, “what does the policy say” why nobody sees the relevance of the rules they worked by as a useful tool.

I wanted to mention that I’ve done a lot of research on unemployment the past 4 years, and again recently after being fired (and now going through an unemployment appeal process in CA after missing the phone interview due to technical issues.) This is by far one of the most helpful sites, and Chris, you are very generous for offering your expertise and advice to all who visit this site.

In many of the questions posted on this site, I wanted to drop in and provide advice to the poster, but Chris, you have answered all of them very well.

Thank you, and if I win my unemployment appeal, I’ll be sure to send you a donation just because you’ve been volunteering your time to this site.

Hi Michael,

Thank you very much!! I appreciate the kind words. And yes, I do “volunteer” a lot of my time to this site, but hey, It was my idea:)

Bad business model maybe, given that I’m reaching out to unemployed people with no money to spare. I knew where the “money” lied when I began, but my conscious wouldn’t let me go that way ..

I think an open “respectful” discussion is always called for if someone is asking for help. I am always at a loss for words when I read something elsewhere intended to shame the questioner for asking the question .. unless that’s the only possible response.

If you are ever tempted to chime in on any of my answers .. feel free.

Out of curiosity Michael .. I read over the question where you added your very nice comment.

Having trouble with an “company email issue”? I’d like to know how it turns out for you .. and the donation would be nice too, but I really like to read decisions .. weird little hobby, but very useful for learning how unemployment works.

Chris:)

I went to one of the links you sent me and found this:

Thus, a violation of an employer rule is not, by itself, misconduct. It would be misconduct if all of the following conditions are met:

The rule is reasonable.

The claimant knew or should have known the rule.

The violation is wilful and wanton.

The violation is material.

The violation substantially injures or tends to injure the employer’s interests.

The employer has warned or reprimanded the claimant for previous violations of the same or similar employer rules.

I think the last one is what might save me. This was the first time I was reprimanded and was discharged due to the firm’s “zero tolerance” policy. Anyways, let me know what you think, thanks.

I tend to agree with you. I do not think an email to a friend at another law firm asking about plans for the upcoming holiday is harmful to an employer’s interest.

But having said that .. I think it’s important for any others reading this to understand that prior warnings are not always necessary when an act is so egregious that any sensible person would know that they might be fired for it.

You’re lucky you live in California. The benefits determination guide is honestly the most comprehensive explanation of how unemployment works .. in California. Most states give out just enough information to completely confuse a claimant.

I think all states should be required to produce similar guides which explain how the precedents have been interpreted their statutes as well.

I completely understand why this is scary. We build our entire existence upon our jobs .. well most of us anyway.

I started this site to talk to unemployed people, but it would all do more good if I could reach more people while they’re still employed.

If you rely on others for a livelihood, I believe you must be a vigilant advocate of your rights because nobody else is going to be.

Unemployment claimants are very often up against big guns, but if you approach the whole situation as if you are your own lawyer (which you are) you’ve improved your chances for prevailing ten fold.

And since you mentioned school .. read the section under “Able and Available” Attendance at school .. don’t want you to get benefits only to self disqualify yourself by raising and A&A issue:)

This is the first time I was disciplined for using the company email. There were no prior corrections.

Yeah, I hope I can get unemployment. I was at the firm for nearly a year and have been working for almost 4 years straight after college. If I am lucky enough to get unemployment I will use the time wisely to get my things in order and apply to grad school (something I planned on doing right after college, but couldnt because I was too busy working).

Thanks for your dedication to this site and the advice you are giving us. I wont lie, Im pretty scared right now. Ive never been fired or unemployed and Im sitting tight on what little money I have.

http://www.employlaw.com/unemployment2.htm

I found a site that says only gross misconduct would result in denial of unemployment benefits. I dont believe that what I did qualifies as such, but I am interested to see what you think. Thanks

Hi Peter, (all links will open in new windows)

I disagree with the statement that only “gross misconduct” is disqualifying in California. CA doesn’t even have a special disqualification for gross misconduct, at least not according to the USDOL

But I do think the employer will have a hard time sustaining that a one time violation of a “rule” of the nature of your act would constitute misconduct rising to the level California requires exists. Alternatively you could search here (1256.42)

See MC 5 (3) for “Misconduct Defined” (the first link)

The employer’s rule needs to be reasonable .. they need to show how an infraction could ber harmful to their interest. Just because an employer has a “zero tolerance” policy doesn’t necessarily mean that for purposes of unemployment they are free and clear.

I think the state would like to see progressive discipline for your circumstances, but be aware that every unemployment claim is affected by the humans that are involved it.

The only thing black and white about unemployment .. in my opinion are the statutes.

You can research the precedents here.

I think you’re headed in the right direction with the argument that it was a one time isolated incident of poor judgment. Did you ever communicate with your friend on matters of business?

The firm’s policy regarding emails is that it is to be used for firm business only. Im hoping this will be counted as a minor infraction and an isolated incident of poor judgement. I had my job review the week before and had a great review. I even have the form with me. Unfortunatel, my firm has a zero tolerance policy regarding emails.

What do you think?

I read somewhere that intentional misconduct would disqualify me, but something so minor may still allow me to get unemployment. I would love to just get another job, but noone is hiring at the moment. I am even willing to take a considerable pay cut at a new job, but the only places I have found pay half of what I used to make. Please help