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California- Can I get unemployment if I was fired for not showing up for my shift?

by druski
(San Diego, Ca)

I was employed as a server by a Benihana in San Diego, Ca since January 2008. I was let go because I missed a scheduled lunch shift on Monday 01/25/2009. I was given a warning for missing a shift two weeks prior and another for missing a meeting sometime with in the last year. I had no other performance issues; in fact I was a good employee.

Management informs staff of meetings by putting foot notes on the weekly schedules. Advanced notice varies and I am not sure of the policy for these notifications. It was one of, if not the first, meetings that I was notified in this fashion and failed to make note of it. I missed the meeting and was given a warning.

Two weeks prior to being terminated, I was scheduled to work a double shift, a lunch shift and a "breaker shift" later that evening. I worked a lunch shift and went home to rest prior to returning that evening. I fell asleep and woke 15 minutes after my scheduled start time. I had car problems and had to take a taxi to work. I called the restaurant and told them I was late and that I was on my way. I arrived approximately 30-45 minutes late and was sent home by my manager and told not to return until the following Monday even though I was scheduled to work both a lunch and dinner shift that following Sunday. Breaker shifts require servers to give a 30 minute break to other scheduled servers during the dinner shift. I had previously been warned about being late for a breaker shift on at least one other occasion and a written warning was issued this last time.

On Monday, May 25, 2009 I arrived at the
restaurant at 4:30 pm, believing that I was scheduled for 4:45 dinner shift. I was informed then that I had was scheduled and missed a lunch shift earlier that day. I told the manager that I had looked at the schedule several times prior to Monday and misread my schedule and honestly believed that I was scheduled for a diner shift and not lunch.

Schedules are supposed to be posted on Friday prior to the scheduled work week, but often are not posted until later that weekend. The weekend of 22-24th I am not certain when it had been posted, but management removed it from it is normally posted on several occasions and for varying lengths of time. I am not certain if I misread the schedule or if I was reading the previous weeks schedule. I am not certain what happened, only that I honestly believed that I was scheduled for a dinner shift and not a lunch shift

Part of the issue surrounding being late for the breaker shift is the importance management places on allowing breaks during an employee's shift. This keeps them in compliance with state employment requirments. Because servers are paid a straight minimum wage without tips for these breaker shifts, these shifts are rather unpopular with the staff and rather difficult to cover. These shifts are critical to management due to preasure put on them to stay in compliance by corporate office.

Hi Druski,

I wouldn't hold out much hope for benefits. You'd been warned, and even if you had valid excuses .. you failed to follow proper call in procedures.

But understand please, this is just my opinion based on the information you provided. I'm not the one who decides. The State of California has the ability to ask questions of both parties.

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3 warning empl limit
by: Anonymous

Unfortunately, once an employer gives an employee written warnings (twice) the third is on record and legal to let you go. They have tried to manage you and most often don't file the very first corrective action notice to you (verbal or written)either way it counts. So really employees are given 4 chances to prove as a capable worker.

And that is basically how many employers handle it .. However, it's legal for an employer to let you go whether or not they follow their own rules about warnings .. especially when the employee handbook has a disclaimer in the front about the employment being at will and whether the rules are adhered to or not is at the discretion of the at will employer.

That's how any smart and strategic businesses attempt to avoid legitimate wrongful termination. It's effective.

Unemployment though is about determining whose fault it was the employment relationship had to end and requires the moving party to sustain a burden if appealed. This is true whether for a discharge or a voluntary quit.

The basic premise of any good appeal argument is to prove the moving party was unreasonable .. thereby at fault for the divorce.


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