Where an employee is terminated for excessive griping about working conditions, hours, wages, co-workers, supervision, or any one of a variety of things, may the employee be disqualified for unemployment benefits for willful misconduct?
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California Unemployment Insurance
Benefits
Denial of Benefits For Unjustified
Complaint or Improperly
Channeled Complaint
By Christopher W. Olmsted
Where an employee is terminated for excessive griping about working conditions, hours, wages, co-workers, supervision, or any one of a variety of things, may the employee be disqualified for unemployment benefits for willful misconduct?
Yes, in the right circumstances. According to EDD guidelines, “Excessive complaining by an employee is not misconduct unless it is shown that the employee's work suffered, or if the employer’s interests were otherwise damaged as a direct result (for example, if he or she persistently left their work station for the purpose of griping to co-workers).”
EDD regulations describe acceptable types of complaining (meaning, i.e., that an employee fired for acceptable complaining is entitled to collect unemployment benefits). Section 1256-32(c) of Title 22 provides in part:
“Mere griping or normal complaints through proper channels, or in a customary manner about some aspect of the work, however, does not injure or tend to injure the employer's interest, and may even be desirable or encouraged by the employer as a method to improve work conditions and employer morale. Proper channels for complaints ordinarily would be through an employee's immediate supervisor, or a grievance committee if one exists, or in accordance with any applicable collective bargaining agreement procedure.”
EDD guidelines note that there are three things to consider when an employee was discharged for filing complaints:
1. Were the complaints justified?
2. Were the complaints registered through proper channels?
3. Were the complaints affecting the claimant's work or that of other employees?
There is no misconduct if the claimant's complaints were justified, and registered through proper channels.
EDD Example - Complaints Justified:
“The claimant was a fry cook. His hours of work were from 1:00 p.m. to 10:00 p.m. but he was actually required to work an hour or two in addition in the morning and until 11:00 p.m. in the evening. The claimant complained to his supervisor about the inefficiency of the dish-up man, as a result of which the latter was discharged. The employer hired a dishwasher who turned out to be a slow worker and was not able to cook. When this assistant proved unsatisfactory, he was likewise discharged and replaced by a dish-up man who was addicted to drinking on the job. On the last day of work, the claimant again complained to his supervisor concerning the most recent assistant but the supervisor took the part of the assistant. That evening, the employer discharged the claimant.
The discharge was not for misconduct. The claimant’s complaints were justified as to the extra hours he was required to work and the type of assistance he was furnished by the employer. Additionally, he registered his complaints through the proper chain of command, his immediate supervisor.
However, if the complaint is justified, but the claimant did not follow proper channels, the resulting discharge may be for misconduct.”
EDD Example - Complaint Not Through Proper Channel:
“The claimant worked as a wrapper in a grocery store. He was requested by his immediate supervisor to work a few minutes overtime on numerous occasions. The claimant consistently refused to do so because he would not be compensated. This resulted in disagreements and arguments between the claimant and his supervisor on several occasions, sometimes in the presence of customers. On the last day of work, the claimant again engaged in a heated argument with his supervisor in the presence of customers. He never complained to the manager or his union regarding his supervisor's demands that he work overtime without compensation.
The discharge was for misconduct. The request that the claimant work a few minutes overtime did not warrant the claimant engaging in heated arguments with his supervisor in the presence of customers. If the claimant felt aggrieved by his supervisor's demands he should have complained to the manager of the store or sought redress with his union. This he failed to do.”
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This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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