A frequent reason given by employers for terminating an employee is “insubordination.” Employers sometimes treat this word as a catch-all – if the employment relationship is not working out, employers will often simply allege that an employee has been “insubordinate”. California is an at-will state, meaning that absent an employment contract, employees can be fired with or without cause at any time. Yet terminating an employee usually makes him or her eligible for unemployment benefits. Are employees terminated for “insubordination” eligible for unemployment?
It depends.
The Employment Development Department of California (EDD) holds that insubordination generally falls into four categories: (1) disobeying an employer’s order or instruction; (2) disputing or ridiculing authority; (3) exceeding authority; or (4) using vulgar or profane language towards a supervisor. A brief discussion of each factor follows below.
In relation to the first factor, according to the California Labor Code: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.” The following conditions must be established for a discharge for disobeying an employer's order or instruction to constitute misconduct under the EDD: (1) the employer's order was reasonable and lawful; (2) the claimant's refusal was intentional; and (3) the claimant's refusal was unjustified.
As to the second factor, an employee is insubordinate under California law if he or she "makes a statement or remark, which is not the result of an error in judgment, under the circumstances which damage or tend to damage the employer's interest." Of course, not all disputes between an employer and an employee result in discharge of the employee for misconduct. According to the EDD, differences of opinion, disagreements, and misunderstandings arise, and participation in such discussions is not misconduct. Moreover, an isolated instance of an error in judgment is not misconduct.
As to the third factor, when termination results from an employee exceeding authority, there are multiple elements to consider. First, the job’s inherent authority must be taken into account - if the parameters of authority are outlined clearly and are violated knowingly by the claimant, the discharge would be for misconduct. Second, authority to take action may also be created by the failure of the employer to limit or to object to unauthorized or undesirable conduct. Third, emergency situations may arise which require the employee to take immediate action for the employer's protection or best interests.
Finally, according to California law, an employee is insubordinate if he or she addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee. According to the EDD’s website, “In determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office…Generally, a single remark or outburst uttered in a situation of stress or provocation does not constitute misconduct.”
These examples are by no means exhaustive. The determination of whether an employee terminated for “insubordination” rises to the level of “misconduct” for purposes of unemployment benefits really is a case-by-case determination. But the above factors are instructive nonetheless. So next time you consider terminating an employee for “insubordination,” take a minute and apply these factors to your particular situation.
