Counselors' Corner (11/26/07)

COUNSELORS’ CORNER

November 2007

Q: One of our employees sprained his ankle on a Saturday afternoon and went home early. At the time he didn’t think he needed to see a physician thinking he would be fine by Monday. On Monday he came to work and asked to be examined by our company’s designated physician. We sent him to our physician, but he wasn’t actually seen by the physician until Tuesday, the next day. The physician examined him and released him to return to work without restrictions. We are treating the injury as a first aid and not recording it as a Cal/OSHA injury or reporting it to our Workers’ Compensation carrier. However, the employee is asking if he will be paid for the hours of work he missed on Saturday, Monday and Tuesday. Do we have to pay him for time he missed work and the time spent going to our designated physician?

A: This type of injury cannot be treated as “first aid” for Cal/OSHA purposes. Any injury that results in days away from work must be recorded, and he missed work on Monday. For workers’ compensation purposes, “first aid” means any one-time treatment, and any follow up visit for the purpose of observation of minor scratches, cuts, burns, splinters, or other minor industrial injury, which do not ordinarily require medical care. This one-time treatment, and follow up visit for the purpose of observation, is considered first aid even though provided by a physician or registered professional personnel. But when an employee misses time beyond his or her regular shift, then the injury can no longer be treated as first aid and must be reported to the carrier. Because this employee missed time beyond his ordinary shift, the injury must be reported to the workers’ compensation carrier.

The answer first depends on past practice. What has happened to other employees in similar circumstances? For example, if other employees who have left early have been paid for the day, then the employee will be entitled to pay for the day he left early. If not, pay is not necessarily required. Similarly, are other employees paid when sent to the doctor? If not, then this employee need not be paid. As discussed above, the injury must be reported to the workers’ compensation carrier, so the employee will be entitled to file a claim. It will be up to the carrier whether or not to deny the claim.

Q: We just received an Unemployment Insurance claim from EDD for an employee we discharged a week ago. I know the termination was justified and was done properly. However, we failed to give the discharged employee a written notice at the time of discharge which is required by California UI Code. Should we still challenge the employee's claim for UI? Our UI rate is over 5%. Even if we prevail it won't affect our rate anyway. If we lose, will it have any effect on a future claims by the employee?

A: Whether a Notice of Change in Relationship was provided should not be the determining factor in a claim, although the failure to comply could affect the employer’s credibility. The bigger question is whether the employee was discharged for “misconduct” under the meaning of Unemployment Insurance law. This term has never been defined in the Labor Code, and derails many employer objections to unemployment benefits. The term "misconduct" does not necessarily require an evil or corrupt motive. It is enough if the employee’s act (or the failure to act) occurred under circumstances where the employee should have known that termination would result. Not every breach of the employee’s duties will qualify, only “willful and wanton” breaches of duty. In practical terms, the employer will need to have very clear documentation to show that the employee knew that if he did something, it would lead to termination and the employee did it anyway.

In a case involving a winery employee who failed to check a valve, causing the loss of 933 gallons of wine, the Board decided that the employee was discharged for misconduct because he deliberately disregarded the established procedure that had been provided in training. Although he did not intend to cause the loss of product, the employee deliberately and intentionally disregarded his training and instructions. This was misconduct.

In contrast, errors in judgment or mere inefficiency do not qualify as misconduct, and although they might justify a termination, they do not disqualify employees from Unemployment benefits. In another case, a creamery employee was terminated for poor performance. He had been counseled a number of times regarding proper procedures, but failed to improve. On one occasion, he had caused the loss of three hundred gallons of milk due to improper pasteurization. But the evidence showed that he had not deliberately disregarded instructions or procedures, and he was entitled to benefits.

If the employer is confident that the employee has engaged in misconduct, it should challenge the benefits. But if the employee was terminated for poor performance, negligence, or inefficiency, rather than deliberately disregarding his employer’s interests, then the employer should not challenge the claim.

Challenging a claim is not without risk. First, employee anger about the challenge to benefits can spur wage claims and other employment related claims. Second, if an appeal is necessary, a UI judge may find something wrong with the termination, or in some cases may find that there was discrimination or harassment in the workplace, which can drive the employee to pursue litigation. Although evidence in UI cases is not admissible in California courts, the EEOC has taken the position that such evidence is admissible in federal actions, and will use information from the UI process against the employer.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento for individual responses to questions or concerns regarding any given situation.