Many Men who hold jobs and are arrested (many times mistakenly) for offenses such as DUI’s, assault, disturbing the peace, gambling,  etc.  This event alone is traumatic. When you are arrested, have to serve time or are released on bail, returning to work can be a nerve racking experience.  Most Men want nothing more to return to work and regain their normal life before they were arrested. Often times, however, navigating work and your court proceedings can leave you very vulnerable with your employer.

California like many other states is an at will employment state, which means that the employer can often terminate an employee for any reason other than for reasons that are considered violations of civil rights or employment rights, such as medical leave, etc.  If you are terminated for work force reduction, layoffs, or what is considered involuntary termination, you will generally qualify for unemployment insurance.   File for your benefits and make a good effort to look for work and you should get your government checks in the mail.    

However, if you voluntarily leave work or are terminated for misconduct at work, such as insubordination or violation of your employment contract or work policies, you will generally not qualify for unemployment benefits under California law.

What if you are arrested?  In some states, such as California, employers aren’t allowed to weigh arrests that have not led to convictions while making hiring or firing decisions. California allows employers to ask about arrests and the circumstances surrounding them, but they can’t terminate employees based on this information. Remember, you are presumed innocent until proven guilty.

However, if you are convicted of a crime, that is a jury returns a verdict of guilty and the judge enters a final judgment of guilty (a two-step process), keeping your job is going to be a much harder.  Although somewhat of  a gray area, an employer may come up with a business justification for termination that is not based solely on the conviction itself. Terminating you for the conviction if it does not materially impact your ability to return to work and perform your job functions may be considered unlawful discrimination.

But in any event, let’s say you are convicted of a crime and terminated.  We will return later to the topic of whether you have any recourse against your employer in another post.   One of the first things you are probably thinking about doing (if you are not sitting in jail) is applying for unemployment insurance.   Can you qualify for unemployment benefits if you are convicted and terminated?  After all, this termination has nothing to do with your work.   The answer is, you might, it depends.

Calif. Unemp. Ins. Code Section 1256.1, provides:

(a) If the employment of an individual is terminated due to his absence from work for a period in excess of 24 hours because of his incarceration and he is convicted of the offense for which he was incarcerated or of any lesser included offense, he shall be deemed to have left his work voluntarily without good cause for the purposes of Section 1256. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, is deemed to be a conviction within the meaning of this section irrespective of whether an order granting probation or other order is made suspending the imposition of the sentence or whether sentence is imposed but execution thereof is suspended.

What this basically says is that if you miss work for over 24 hours due to your criminal proceedings, California considers this a voluntary leave from work without good cause.   That provides the unemployment office the basis to deny you benefits.  However, let’s say you had an authorized leave from work to deal with your criminal proceedings.  The jury comes back guilty and you are subsequently terminated from work.  You are now filing post-trial motions and appeals.

Under Calif. Unemp. Ins. Code Section 1256.1  (b)

Notwithstanding any other provision of this division, any
determination made prior to a conviction or other final disposition
of the criminal complaint or accusation by the court as to whether an individual who is terminated due to his absence from work because of incarceration voluntarily leaves without good cause may, if no appeal has been taken from the determination, for good cause be reconsidered by the department during the benefit year or extended duration period to which the determination relates. Notice of any reconsidered determination shall be given to the claimant and any
employer or employing unit which received notice under Section 1328
or 1331, and the claimant or employer may appeal therefrom in the
manner prescribed in Section 1328.

In other words, the State cannot necessarily deny you benefits if you have been fired and there is not a final conviction and you are appealing.  If you were fired because the company did not want to be associated with you while you are undergoing a criminal process, that is much different than being absent from work for a period of over 24 hours.  If your employer has given you leave from work voluntarily to deal with your proceedings, being terminated for business reasons while there is no final disposition in your case, may give you a valid claim for unemployment insurance.

If you have any questions about these issues start a discussion in the comments section.  (If you are concerned about revealing your identify in the comments section, I would advise using an anonymous email account and name).   Looking forward to hearing about your case.


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