Can a person still be eligible for UI in CA after terminated b/c random drug screen misunderstanding

If an an employer does a random drug screening and the employee was asked to give another sample at the clinic due to temperature issues, and the employee quickly went to the car to get cell phone and call HR and boss to let them know (because of longer duration and no work coverage) and then was denied the chance to give another sample because of going outside to car (clinic personnel did say not to go back to work or drug screen would be considered cancelled) but employee misunderstood and thought they could go outside but not leave the parking lot. Employee did tell the clinic that they needed to make phone call and speak to boss, not just HR. Employee was terminated and employer didn't offer employee chance to retest-even though employee wanted to retest. This was in California. Can employee still collect unemployment?

1 answer  |  asked Aug 23, 2015 12:13 AM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
Generally, a person claiming unemployment benefits (a “claimant”) is eligible for benefits if ALL of the following is true: he or she is (1) unemployed due to no fault of his or her own; (2) physically able to work; (3) actively seeking work; (4) ready to accept work immediately; (5) has received enough wages during the base period to establish a claim; and (6) meets eligibility requirements each week benefits are claimed. An overview of these requirements can be found on the web site of the California Employment Development Department (EDD)

There is a legal presumption (similar to an assumption) that a claimant is entitled to benefits unless the claimant was either fired FOR MISCONDUCT or quit without cause. "Misconduct" generally means taking intentional acts against the interest of the employer. Some examples are tardiness or absences without reason, insubordination, showing up drunk, initiating a fight, etc. "Unsatisfactory performance" is NOT misconduct unless the claimant intentionally did a bad job. If the claimant did his or her best but the employer wasn’t satisfied, the claimant is still eligible for benefits. The burden is on the employer to show that the claimant intentionally did a bad job. For more information on misconduct, see

The California Employment Development Department (EDD) administers California’s unemployment insurance program and evaluates claims for benefits. Often, EDD telephones the claimant and the employer and interviews both. EDD compares their statements and makes a decision based on information received. By the limited nature of the initial process, EDD sometimes makes errors. For this reason, there is an appeal process.

Your claim may be denied, but you can and should appeal the denial. The Notice of Determination stating your claim was denied for misconduct includes information about the appeal. You MUST file your appeal by the date stated in that letter. Do not miss the deadline. In the appeal, make a brief statement saying why you believe the denial was incorrect. Save your detailed argument and evidence for the hearing. For example: “I did not intentionally disobey a rule or directive. There was a genuine misunderstanding."

In a few weeks, you will receive notice of an appeals hearing with the date, time and location. At the hearing, be prepared with as much evidence as possible. You should also know the law the administrative law judge will consider. You can get a lot of helpful information on the EDD website.

Home page
Eligibility requirements
Summaries of the law (Benefit Determination Guide)
Precedent Decisions (law the administrative law judges rely on)
Frequently asked questions
Filing a claim for unemployment benefits

You can be represented by anyone at the hearing. If your appeal will be difficult or you are uncomfortable speaking, you may wish to retain an attorney to help you prepare or to represent you. For training, expect the attorney to need approximately three hours. For hearing representation, expect the attorney to need three to seven hours to prepare, depending on the complexity of the case, witnesses, documents and other evidence, and allow two hours for the hearing itself. Unemployment hearings usually last one hour or less, but you must arrive early to look at the file and there is a possibility you will have to wait for the previous case to finish.

Generally, as of 2015, plaintiffs employment attorneys in California charge between $250 and $700 per hour for legal services. The amount varies based on experience, location, attorney availability, attorney interest in the case, complexity of the matter, and more. To find a plaintiffs employment attorney in California, visit the California Employment Lawyers Association (CELA) at CELA is the largest and most influential bar association in the state for attorneys representing working people. You can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

Marilynn Mika Spencer
San Diego, CA

posted by Marilynn Mika Spencer  |  Aug 23, 2015 9:07 PM [EST]

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