I came across the Shop Talk article recently regarding when tardiness constitutes misconduct (Aug. 15) and was disappointed in the advice.
While it is difficult to show, to the satisfaction of the Employment Development Department, that an excessive tardiness problem is “willful” misconduct, there are ways to prove misconduct.
A properly documented final incident is essential to prove misconduct for excessive tardiness. If the employee states that the tardiness was caused by a horrible freeway accident, for example, the EDD will almost always determine that there was no “willful” misconduct.
Though termination may be necessary, that employee will probably receive unemployment benefits.
A final warning would show that the employee was aware that his job was in jeopardy if the behavior continued. Indeed, prior warnings and an invalid excuse on the final incident are keys to a successful protest of an unemployment claim involving tardiness.
Employment Tax Consultant