I was fired for something I did before I was hired with the company. It was not a crime but was immature behavior.

I’m trying to find out if I was fired for misconduct. I’m looking at the misconduct page on Employment Development Department and found this part about preemployment activities in regards to misconduct.

Here is what I found:

“What if the claimant was discharged because of his or her preemployment activities? Title 22, Section 1256-33(c)(1) provides the general rule as follows:

In situations involving preemployment activity, the claimant is discharged for conduct occurring before the employment relationship was begun. Usually this is not connected with the most recent work.”

Can someone explain this in simpler terms?

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    This would be easier to answer if you would explain what you mean by EDD, provide your location, and link to the page(s) you're referencing. – dwizum Jun 18 '18 at 20:10
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    @dwizum california, section D: edd.ca.gov/UIBDG/Misconduct_MC_350.htm – bharal Jun 18 '18 at 20:12
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    How do you know it was for immature behavior? What did they tell you when you got fired? – DarkCygnus Jun 18 '18 at 20:13
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    in the US you can be fired at any time – Keltari Jun 19 '18 at 9:40
  • Since this question is asking for an explanation of general legal language (not tied to interpreting a specific case), I might recommend asking this question over at Law. – David K Jun 19 '18 at 16:17

Your question title asks whether you "can" be fired. Barring specific circumstances, such the firing being based on you being in a protected class, your employer "can" fire you for any reason they want. But you seem to be asking a different question, namely whether your firing is for-cause for Unemployment Insurance purposes.

Assuming you are otherwise eligible for UI, one of your first steps should be simply asking your formal employer whether they intend on asserting to the EDD [Employment Development Division, for non-Californians] that you were fired for cause, or otherwise disputing your UI claim.

As for the passage you quote:

In situations involving preemployment activity, the claimant is discharged for conduct occurring before the employment relationship was begun.

In other words, "involving preemployment activity" is defined as being based on conduct occurring before your employment relationship began. I'm not sure what "employment relationship" includes. It definitely includes any time you were employed, and may include activity during the recruitment process, such as interviewing and submitting a resume.

Usually this is not connected with the most recent work.

Situations involving preemployment activity are generally classified as "not connected with". The passage makes reference to Title 22, Section 1256-33(c)(1), which states:

This section interprets when a discharge for misconduct is or is not “connected with” the most recent work under Section 1256 of the code.

In other words, this section talks about how to tell whether something is "connected with" the most recent work; this section gives the reader an idea of what "connected with" means.

Misconduct is connected with work if the activity involved injuries or tends to injure the employer's interests.

To be "connected with" work, an act has to affect, or have the potential to affect, the employer.

A claimant who has been discharged from work for misconduct is disqualified under Section 1256 of the code only if the misconduct is “connected with” his or her most recent work (see Section 1256.3 of the code and Section 1256-2 of these regulations for definition of most recent work).

Whether something is "connected with" the most recent work is important, because any misconduct that is not "connected with" the most recent work is not a basis for disqualifying you from UI benefits.

Title 22, Section 1256-33(c) also says "If there is no injury or potential injury to the employer's interests, the employer cannot reasonably impose the employer's standards of behavior on an employee during his or her off-duty time." It is reasonable to interpret this as applying to pre-employment activity as well. So if what you did caused no injury to your employer, then it does not keep you from collected UI benefits.

  • What does “connected with” mean in this context? – Michael Jun 19 '18 at 1:06
  • @Michael: As an example, if the " juvenile behavior" included theft from the (at that point) future employer, then it's arguably connected. There won't be exhaustive lists of what is and is not connected, merely examples. – MSalters Jun 19 '18 at 15:26
  • Thanks. Would another example be if someone started a fire and then became a firefighter in the future and got fired because their past was discovered about starting fires? – Michael Jun 19 '18 at 21:06

In the US you can be fired without giving a reason. Pre-employment activities can cause you to be fired if they affect the reputation of the company or if they expose you as a liar or as someone unable to be bonded or get a security clearance.

So if you lied on your resume that you had a BS degree when you did not, then, even years later, they can fire you for that. If a background search completed after the start of employment finds that you committed fraud and the jobs is financial, then you can be fired. If your hire is contingent upon passing a check for a security clearance and you did not pass, then you can get fired. If someone in the company sees things that the company doesn't want to be associated with (such as being a Nazi) then yes you can get fired. If you published something that they find embarrassing to the company (say a scientific study that is debunked like that awful autism study) or if it is found out later that you plagiarized on your PhD thesis, you can get fired.

Not knowing what they think you did, no one can say for sure that yes that is something you can be fired for. If you believe it did not rise to the level of the kinds of things I mentioned, then you can consult with a labor lawyer to see if the firing is indeed unjustified.

  • Even if unjustified, it's going to be hard to file a successful wrongful termination unless he was fired under some protected law. – Dan Jun 19 '18 at 13:47
  • It is easier to fight if they give a reason for the firing in the US which is why most employers will pay you the unemployment and not give a reason. – HLGEM Jun 19 '18 at 13:50

So you're referring to a cali job, given the link is http://www.edd.ca.gov/UIBDG/Misconduct_MC_350.htm section D.

This link covers being fired for past actions. The reason given in the example is actually because of current misconduct, however. The example specifies that, in lying as part of the job application, the applicant was terminated.

I don't know how to relate this to you, but it seems that you cannot really be discharged fairly when the discharging has no relation to your work or responsibilities.

There are several actions in section A that might help you work out what your stance is. I don't know what your "immature" behaviour is or was, and i am not a lawyer, but it seems unlikely though not implausible that any past behaviour could be tied somehow to the responsibilities your company expected of you.

  • I did not fill out a job application. There was also no contract. – Michael Jun 20 '18 at 0:59

Yes, and it happens all the time.

A background check and proper candidate vetting is supposed to weed this kind of thing out, by preventing such candidates from being hired in the first place, but when something slips through the cracks, people can and are fired for non-criminal actions from their past.

For illustrative purposes, imagine you're an employer, and you're being beaten up in the media and worried about losing a ton of business because one of your employees is accused of being a creepy misogynist. Or, say, a white supremacist. Or a pedophile (he also ended up resigning from his day job, FWIW). In any of those cases, would being able to say "but that happened before you hired me" make any difference to you, as a manager or business owner? Presumably your behavior was less extreme and didn't make national headlines, but the issues and concerns from the employer's side are generally the same.

The issue is that it reflects poorly on the employer, who is worried about losing customers or clients over it, and yes, in at-will employment situations that means you can and will be fired for it. (Not that employees with a contract are better off - the standard solution in those situations is to not renew the contract or fire the employee anyway and pay out the contract).

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    It's not unrealistic for companies to get social media backlash after learning one of their employees was in bad conduct in the past. – Dan Jun 19 '18 at 13:39
  • Does this apply to teachers on a permanent contract? I just read an article where a teacher didn’t get fired for sending innapropriate message to a student. He still has his job. – Michael Jun 20 '18 at 1:04
  • @Michael We’d need more details than you’ve provided, and that’s straying into legal advice, but I will point out that a great many (probably the vast majority) of employment contracts in the US contain clauses allowing the employer to break the contract in cases of gross misconduct, “moral turpitude”, etc. to be used in this exact type of scenario. Even if not, the employer always has the option to pay out the contract and terminate an employee anyway. (And in practice, if you sue an employer for breaking your contract, that can make the next potential employer decline to hire you). – HopelessN00b Jun 20 '18 at 4:11

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