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Can I collect unemployment if I have been fired for breaking a rule I was aware of?

I was fired ("failure to follow procedures") because I used our instant messaging system for non-work related purposes (ie. talking to my co-workers). My termination paper states that there were 3 instances that notices were sent regarding the proper use of email & IMs. One of them was when I forwarded it to my staff when I was a supervisor. I know I broke a company rule, but in reading the definition of "gross misconduct," it seems that I should still qualify because the company did not "suffer significant injury or harm." No one was hurt by this. I've worked for this company for almost 6 years and was a HUGE asset to my office and the company. Also, so many, if not all, of the employees use this IM system...and it's not always work-related. I just had to be the lucky one to get fired...and this was because my previous manager told on me and had an investigation started. I even heard that the company made a decision to not terminate a Trainer, even though their IMs had sexual content. I feel like I was wrongfully terminated, so how can I convince the unemployment agent that I deserve this?

Hi Anonymous,

What state are you in .. California?

An employer's rule needs to be reasonable and it should be uniformly enforced otherwise the employer's consistency in enforcement is called into question and raises the specter of unfairness.

If they did not fire someone for the same rule violation .. that might be a good focus.

Employer's also need to follow their progressive discipline policy. Had you been previously warned for other rule violations?

This type of rule violation does not seem to be the type that would call for immediate termination.

What you need to do is make yourself aware of the policy and the options the employer may use for this and then build your case for "no misconduct" based on the weaknesses you detect for the employer's case. This is precisely how an employer is prepped for hearing only in reverse.

A well presented case with a strategy .. is what all unemployed people need to prepare for.

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Strategies for winning an unemployment appeal.
by: Chris - (webmaster:)

Hi Anonymous,

Would you do me a favor please and email me. Because of the terms and conditions when you submit a question .. I cannot email you first.



Hi again
by: Anonymous


Thank you for your responses. Unfortunately, I received notice that I'm ineligible for unemployment through the state of California. Is it too late to try filing a claim through the state of Nevada since my last day of work was June 9?

I'm thinking about filing an appeal because they said that I'm ineligible because the employer rule was reasonable. How can I show them that this was unreasonable? I know you mentioned that I should focus on the fact that others have not been terminated for the same rule violation and that I was never written up or reprimanded, but I don't think anyone is willing to admit that they were/are using the IMs inappropriately. If I do say that I was never written up, couldn't they claim that the emails and notices that were sent out were the warnings? Is that enough to rule against me?

I really want to fight this as much as possible because it really isn't fair. Yes, I used it for other than business purposes, but what about the rest of the employees that are? If they consider the same course of action, 90% of the company would be terminated. And that's what I want them to see. Any assistance on this matter would be greatly appreciated. Thank you...

starstarstarstarstar response (pt 2)
by: Anonymous

"Employer's also need to follow their progressive discipline policy. Had you been previously warned for other rule violations?"

I had never been written up for violating any other rules. I've never been written up for anything! As I've mentioned I have been a huge asset to my office and the company. I read somewhere that if you break a policy, there would be no consideration of your position or performance. This is a rule they made, but it doesn't make sense simply because this is so petty. I could understand that if I was messaging another employee about a plan to rob the place, then YES...I DESERVE to get fired. My actions were in no way posing any harm or threat to the company.


Exactly, misconduct doesn't necessarily need to "harm" an employer's interest .. as long as the rule is reasonable.

I would add that if the employer is using a "zero tolerance" approach to this particular "rule violation" I think I would assert that that is unreasonable also.

Generally speaking a "one time knowing violation" of a rule resulting in discharge only applies when the "harm" is apparent ... like stealing or verbally or physically assaulting someone ..

Doesn't matter where you file .. it will first go to Nevada. Everything will come under their laws .. including the weekly benefit amount.

If Nevada denies .. I think (??) you can then try filing in California since you live there, but in either case .. Nevada is the state that will pay.

If I were you .. I'd see if I could get some statements from those willing to admit they have done the same and not been terminated.

It would also be useful to have that email which said violating this rule "could lead" to termination.

Notification of a rule addition or change does not constitute a written warning. That's the kind of email you add to your employee handbook and my feeling is the rule is minor enough to warrant some prior warnings as far as the state is concerned.

I by no stretch of the imagination would call this one a slam dunk for the employer .. in fact I have grave doubts about their ability to get a favorable initial ruling or their ability to sustain if you are initially denied.

But this often is dependent on the ability of the claimant to focus on the stuff they should focus on.

The fact that you were a huge asset was apparently your opinion .. even if true and will add nothing to your interest except that you have never been warned or written up for prior to this.

I went to Nevada's unemployment website .. you should be able to win this. Misconduct (Duty to Employer).

in response...
by: Anonymous

This happened while I was employed in Nevada, but I'll be filing for UI in California.

I know they recently fired another employee from the same office for the same violation. If this is the route they are going to take, wouldn't it be fair to review the ENTIRE organization's instant messages? If they're going to go as far as terminating people, I think they should consider that EVERYONE is using it for personal use...because they are. It wasn't fair that because someone told on me, they would only consider terminating me. My manager told me that the people I was messaging were also being reviewed, but only one person has been terminated so far. I've messaged others and because they responded and used the messaging system on their own as well, shouldn't they be up for termination?

Like I've mentioned before, other trainers have told me that one of their co-workers almost got fired for messaging someone, but some manager decided to let it go and make an exception. I would love to use this against them, but I know this is just "hear-say." Any suggestions?

Also, I've read that if the organization (I'm assuming immediate supervisors are included) are aware that this action has been taking place and choose to ignore it, there was no right for termination?

There were notices sent out by email saying that using this for other than business could lead up to termination, BUT I was never personally written up for it. Does that count as not having been "warned?" I was planning on telling the UI agent that I was never warned, but if those notices are considered a warning, then I could be disqualified.

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