The California Unemployment Insurance Appeals Board (CUIAB) has issued P-B-510 which holds that due process requires the Administrative Law Judge (ALJ) to develop the record in an unemployment insurance hearing. The case involves termination for tardiness based on an employer’s no fault attendance policy. The decision first holds that an employer’s attendance policy has no bearing on eligibility for unemployment insurance, and whether an employee has committed misconduct is based on unemployment insurance law and the particular facts of the case and not on the employer’s attendance policy.
The decision continues that, in attendance cases, the final incident must be analyzed to determine if it is misconduct, and that is done by examining whether the incident breached an important duty to the employer and injured or tended to injure the employers interest. If so, the employee must show good cause. If there is not good cause, the employee will have committed misconduct if the final incident was substantially detrimental to the employer’s interest or the employee had at least one prior justified warning for a similar incident.
The CUIAB then found that the ALJ had to a duty to develop “a comprehensive evidentiary record” surrounding the final incident, including the reason for the tardiness, the reasons the employee did not provide notice of the tardiness, the impact on the employer and the facts surrounding prior attendance issues and reprimands. The ALJ failed to develop the record, and that failure justified remand for a new hearing to fully develop the record. P-B-510 (February 24, 2016).