Carl Kanowsky, Esq.

You’ve probably heard the proverb, “Never criticize someone until you’ve walked a mile in his shoes.” Well, for Jose Robles, this old saying has come to haunt him.

Jose worked for Liquid Environmental Solutions for four years. He’d been a fine employee, apparently.

That is, until this whole shoe allowance debacle kicked in.

Liquid provides its employees with an annual $150 shoe allowance for use at Red Wing Shoe Stores.

In late 2009, Jose went to the local Red Wing store with a friend. Robles asked the clerk if she would measure his friend‘s foot because he intended to give the new shoes to his friend who needed shoes. Robles reasoned that he had a good pair of shoes, and his friend needed them more than he did. The clerk told Robles that was not possible.

Jose left the store without shoes, either for himself or for his friend. He was to find out that he also left without a job. He got fired for trying to help out his friend.

Regardless of how you feel about Liquid’s action, this story becomes a little bizarre when Jose applied for unemployment insurance benefits.

Jose went to the Employment Development Department to apply for benefits. He told the department representative the truth about what happened. Liquid did not contest Jose’s request to receive unemployment checks. In fact, the department never talked with or received anything from Liquid.

According to the department’s findings, Robles was aware of the company policy and that the purchase was for employees only. Therefore, he must have willfully disregarded his employer‘s interests. Consequently, he was denied benefits.

Jose, understandably distressed, appealed to the California Unemployment Insurance Appeals Board.

In his appeal, Jose denied that he broke a reasonable employer rule and stated his employer did not cite any specific rule that was broken, and he was not aware of any such rule. Also, Robles attested that he did not obtain an improper benefit or cause any harm to his employer.

The Appeals Board denied the claim, finding that Robles had engaged in misconduct when he tried to get shoes for his friend.

One thing you can say about Jose: He doesn’t give up easily. Once he got the Appeals Board’s decision, he then appealed that to the Superior Court, which also agreed with the department. Not deterred, Jose then went to the Court of Appeal.

Finally, Jose got his day in court. The appellate court first discussed the notion of firing an employee for “misconduct.” Misconduct, in the unemployment setting, differs from misconduct in the setting of wrongful discharge.

In a case where an employee sues an employer for firing him in violation of the law, a major defense for the employer is if it discharged the employee for cause. In other words, the employer fired the person for a really good reason, such as being late all the time or not doing his job satisfactorily after several warnings or other rationale.

But when someone applies for unemployment benefits, those benefits can be denied only if the employee got fired for doing something that was “willful, wanton or equally culpable.”

Mere failure to follow an employer’s rule usually will not disqualify someone from receiving unemployment benefits.

As the Court of Appeal ruled, “Rather, circumstantial evidence bearing on the intent with which the act is committed must be adduced to provide substantial evidence of deliberate, willful and intentional disobedience.”

Given the evidence in the case, the most the Court of Appeal could find against Jose was that he was guilty of a good-faith error in judgment. In order to have denied him benefits, the employer must have provided evidence of willful misconduct. However, in this case, the employer never contested Jose’s application for benefits and in fact never appeared at anything in the case at all. For whatever reason, it had been the state of California fighting Jose all along, not Liquid.

In the end, Jose’s friend still needs new shoes, but at least Jose can collect unemployment benefits.

Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Nothing contained herein shall be or is intended to be construed as providing legal advice.