Can you collect unemployment if you get fired for attendance in california

Most people think that you’re automatically disqualified from collecting unemployment benefits if you get fired from your job. That isn’t entirely true as state laws differ on this issue, and the reason you were fired also comes into consideration. For example, if you were fired for misconduct such as regular nonattendance to work, will you still get unemployment benefits?

You can collect unemployment benefits if you get fired for poor attendance in most cases. However, it depends on your state’s laws, especially whether attendance is considered gross misconduct. In most states, you’ll get a disqualification period, after which you can receive unemployment benefits.

To understand this better, let’s look at what the law says about unemployment benefits regarding attendance issues and other causes of job dismissal.

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Qualifying for Unemployment Benefits After Getting Fired for Attendance Issues

To qualify for unemployment benefits depends on your state’s eligibility requirements. That said, the U.S. Department of Labor points out two main requirements to qualify. 

Firstly, your unemployment should be a result of no fault of your own, and secondly, you need to have worked for a certain period and earned wages of a certain threshold depending on your state’s requirement.

In other words, as per the first requirement, people who were fired for reasons such as staff reduction or physical, mental, and emotional inability to perform, can qualify for benefits. However, if the cause of your dismissal was your fault, you may have some difficulty collecting unemployment benefits, especially if your employer can prove it.

So, what about attendance issues specifically?

The answer to this question lies in understanding the difference between ‘gross misconduct’ and ‘ordinary misconduct.’

Gross Misconduct vs. Ordinary Misconduct

A big percentage of U.S. states are ‘at will’ employment states, which means employers can fire you, or you can walk away for any reason or no reason whatsoever. That said, if your employer terminates your employment because of gross misconduct, you may be disqualified from receiving unemployment benefits, either temporarily or permanently.

But here’s where it gets interesting.

The federal law hasn’t defined “gross misconduct,” so it’s left to individual states and courts to decide what constitutes gross misconduct. 

For example, the state of Vermont defines gross misconduct as ‘any behavior that shows a complete disregard of employer’s rules and can result in a serious impact on the business.’ These include intentionally misrepresenting a product/business, leaving the company liable for fraud, coming to work intoxicated, physical altercations, and theft.

However, the Department of Labor does say that gross misconduct doesn’t include ‘ordinary’ unsatisfactory behavior such as frequent absences or dozing off at work. Typically, such ordinary misconduct requires several warnings or formal reprimands before termination, while gross misconduct warrants immediate termination with no progressive disciplinary action or warning.

From the above explanation, it’s clear that absenteeism isn’t considered gross misconduct unless it seriously impacts the business. Therefore, it’s up to the employer to show just cause as to why the state should bar you from unemployment benefits.

Attendance Termination Laws by State

As noted earlier, every state has different policies regarding termination caused by attendance issues. We looked at the policy documentation per state, and here are the findings:

• All states, except Colorado, deem failure to obey employer’s work rules and policies as misconduct. These include being late or absent, be it unexcused or excessive.
• The caseworkers have a mandate to look into the seriousness of the misconduct, whether there were prior warnings and if any steps were taken to remedy the behavior before discharge.
• Most states punish discharge for attendance with a disqualification period, where you’ll not receive unemployment benefits. For example, the states of Nebraska and Vermont have a 14-15 week disqualification period. Others like Alaska will hold off your benefits for six weeks.
• Unfortunately, some states don’t have this disqualification period. This means you’ll be automatically disqualified from receiving unemployment benefits if the employer can prove you broke the laid-out attendance policies repeatedly.

You can check out your state’s policy regarding unemployment benefits and job termination on your state’s website. However, keep in mind that while these state policies stand, each unemployment decision is made on a case-to-case basis.

For example, the Employment Development Department in California provides these general considerations to determine whether a person’s absence at work indicates an intentional disregard to the employer’s rules:

• Did the employee have permission to be absent for that period?
• Was there a compelling or urgent reason for the absence?
• Was it an isolated instance, or has it happened more than once?
• Are there prior warnings for unexcused absences, tardiness, or other infractions?

If the answer is NO to 2 to 4 of the above questions, your termination is considered gross misconduct and may cause disqualification of unemployment benefits. The state website clearly outlines and even gives examples of situations that can cause this to happen.

For example, someone who has missed work or comes late once due to a serious situation like an accident, acute disease, or transportation lockdown will have a legitimate justification to collect unemployment benefits if their employer fires them.

The rules in North Carolina also add something else to think about:

• Does the business have an established policy stating how many absences are deemed excessive? If there is a policy and the employee has blatantly violated it, the caseworker will look at other factors to determine if the absences really qualify as misconduct.
• Did the worker notify their boss via call or message that they would be absent?
• Did they do so within a reasonable time?
• Was the cause for the absence or tardiness within their control?
• Can the employee back up their reason for absence with some proof like documentation to support their absence?

The answers to these questions, and the previous ones, will determine whether you’ll qualify for unemployment benefits or not.

Unemployment Investigation

The process of collecting unemployment benefits starts when you get fired or lose your source of income. You have to file for benefits at the unemployment body in your state. As you fill that form, you must indicate that your previous employer fired you or give whatever other reason caused you to be unemployed.

Once that’s done, you’ll receive a phone call or a letter from the body informing you that an investigation has started. They may also tell you what to do next. In most cases, they’ll set up a phone interview for you with a caseworker to give your side of the story.

The caseworker will also contact your former employer and confirm your story before they can make a decision. The final decision here will be based on your and your employer’s testimonies, state laws, and any evidence that backs up the testimony on either side.

If the decision is in your favor, you should receive your benefits within 3-4 weeks. This process can take a while because the department of labor and other related bodies are quite busy and understaffed, so you must be patient. It also means you’ll need to make do without the additional income as you wait for the process to end.

If you’ve been given a penalty period, the only thing you can do is serve it, hoping that you’ll find another job during that period. Note that unemployment benefits last for 26 weeks in most states, so the penalty period will significantly reduce the time you should receive those benefits.

In the meantime, follow your state’s instructions on certifying the benefits every week while your claim is still under review. If you don’t log into the state’s system to claim and certify the benefits, you may have trouble claiming back the benefits once your case is approved.

In many states, the unemployment benefits amount to half your previous earnings, up to a maximum amount. This maximum depends on location.

In other words, the compensation you receive depends on the amount you were making in your previous job, provided you had worked there for a certain period. Your benefits are subject to income taxes, so you must include them on your federal income tax returns.

Extended Unemployment Benefits

The state can add some weeks of unemployment benefits during high unemployment periods beyond the usual 26 weeks. These extended benefits are also provided through the state unemployment offices, and eligibility terms are posted online on the website and social media platforms. If you qualify, you’ll likely be notified and advised on how to collect once your regular unemployment benefits come to an end.

Note that not everyone who receives regular benefits is eligible for extended benefits. The state decides who gets the extended benefits, depending on their need and other considerations.

Conditions for Receiving Unemployment Benefits After Dismissal

If you’re among the lucky few qualifying for unemployment benefits following a dismissal because of attendance issues, know that these benefits come with some conditions. For one, you must be actively looking for employment, and sometimes the state will ask for proof of your job search.

One common question regarding this issue is, what if I find a job that I don’t like or want?

Well, the condition is that you must be willing to accept any ‘suitable work’ offered to you. By suitable, they mean the work should meet the following conditions:

• It should be something you can do.
• It must be within a reasonable distance from your place and
• The pay must be appropriate for the job and reasonable.

For example, in New York, suitable work is a job within an hour’s transportation. Moreover, the job should offer payment within 80% of the employee’s previous salary. The pay should also be the acceptable or prevailing rate for that work. 

In some states, such as California, the unemployment office will also consider the degree of risk involved with that job and other factors such as your physical fitness, experience, length of employment, and prior earnings. However, your new job doesn’t have to match your educational skills and experience. You only need to be capable of performing it.

In this regard, you should include any reasonable restrictions on your ability to accept a job when filling the unemployment forms. For instance, if you can’t work night shifts for one reason or another or don’t have a car and need a job along a bus line, you should include these restrictions.

If you refuse to take a job that counts as ‘suitable work,’ you may stop receiving unemployment benefits.

Most state laws also prohibit getting unemployment benefits at the same time as severance pay, but this doesn’t apply here because you can’t get severance pay when you get fired for misconduct.

What Do You Do If You Are Disqualified from Unemployment Benefits?

In many cases, an employee feels unfairly disqualified from unemployment benefits. Maybe the caseworker chose to believe the employer’s side of the story instead of yours, or perhaps the story isn’t so black and white.

If you’re disqualified from unemployment benefits, you have the right to appeal the original decision within the time frame allowed in your state. Instructions for filing an appeal and the form to do so, will come with your notice of denial.

The appeal process differs from state to state, but it always begins with the unemployment body/agency reviewing your claim. Your caseworker will review the days you were off work or tardy and look at the circumstances surrounding them, for example:

• Were there valid reasons for missing work? Do you have proof?
• Did you call your employer to inform them you’ll miss work or come late?
• Do you have official warnings regarding the same in the last 12 months?
• How often did you miss work?

If you don’t get sorted there, you can escalate the matter to an administrative law judge.

In rare cases, the state will provide legal assistance to individuals appealing unemployment claims, but most states don’t. In this case, you’ll have to seek out your local Legal Aid Society or a lawyer who can help you on Pro Bono. If the administrative judge also agrees with the social worker to disqualify you from unemployment benefits, you can’t do much after that.

Reinstatement of Unemployment Benefits

Sometimes, the state unemployment agency can halt your benefits for one reason or another, but later on, reinstate them. Here are a couple of instances where reinstatement of your unemployment benefits can occur:

• If you were fired because of ordinary misconduct, warranting a penalty period, you would be given a 6-14 week penalty period in some states like Nebraska and New Jersey. After the penalty period lapses, the state can now reinstate your unemployment benefits.
• You have gotten a temporary job where you earn enough to warrant suspension of the unemployment benefits. If this changes and you’re no longer making that money, you can apply to have your benefits reinstated.

In any of the above instances, you’ll contact the agency and follow the instructions you’ll be given for reinstating your benefits.

Please note that you should report any earnings you get even from odd jobs, no matter how little. Failure to do this will get you penalized by state agencies for not complying with the rules. You’ll still get your unemployment benefits in most cases, even if you have gotten odd jobs here and there unless the income is too high.

What About Partial Unemployment Benefits?

You can still be eligible for partial unemployment benefits if you’ve gotten a part-time job that pays well but not enough. It will be a percentage of what you would get if you weren’t employed, and it’s meant to supplement your little income.

Partial employment benefits are given to:

• Workers who are underemployed or work part-time because it was the only alternative after getting fired or laid off.
• People who lost one of their part-time jobs and the remaining one doesn’t bring much income.
• You work 30 hours or less per week and earn $504 or less, excluding earnings from self-employment.

Eligibility for partial unemployment is considered on a case-to-case basis based on the state law. However, workers who voluntarily cut back on hours, work part-time or give up one job don’t qualify for unemployment benefits (even partial).

Pro Tip: How to Get a Job After Being Fired for Poor Attendance

Many job seekers realize that it is challenging to find a job after being dismissed for attendance issues. This is why we have written a guide covering this issue:

One of the best tricks shared in the guide is to call your references at your previous employer. It is sometimes possible to convince them to not mention that you were fired for poor attendance.

Final Thoughts

Yes, you can get fired for poor attendance or tardiness. And yes, it can disqualify you from receiving unemployment benefits as you search for another job. Luckily, these situations are looked at individually, so you’ll have a chance to justify why you missed work. The secret is in getting all the evidence you need, including receipts, call logs, and witnesses if you need to appeal in front of an administrative judge.

And even if you’re disqualified, you still have the chance to claim unemployment benefits by appealing the decision. 

References

• EDD: Misconduct MC 15
• The balance careers: Can I Collect Unemployment If I’m Fired?
• The balance careers: What Are Partial Unemployment Benefits?
• ILS: Unemployment Insurance