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Will I qualify for unemployment and how to increase my chances? details:

Fresno, CA |

After my shift; I clocked out, walked to the parking lot with a coworker, sat in my car, got caught in the moment and I received oral sex. The act was caught on my work camera, and we both were fired the next week. I understand that's inappropriate. They said we broke a company guideline and they never showed me it, and asked me to look in the company's handbook. They claimed a misconduct, but I was off the clock and not at work.
Any suggestions would be appreciated.

Attorney Answers 3


Suggestion: learn a lesson and move on.

Nothing in the law requires the employer to have had an existing specific rule that applies to your conduct. The prohibitions in the state penal code are quite sufficient and your employer may rely on that body of law in defining misconduct. If you got caught, by definition your conduct was not sufficiently attenuated from employer premises, staff and activities.

Figure out what's wrong with this picture for your own benefit in the future, and move on with your life.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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2 lawyers agree


I agree with Ms. McCall's ultimate conclusion regarding the state of the law.

Assuming that you and your co-worker were "at will" employees -- i..e that you had no employment contract -- you could have been terminated for any (non-discriminatory) reason, or for no reason at all. The reason they actually gave was not an impermissibly discriminatory one, so they were within their rights to terminate you.

I also agree with Ms. McCall that you should both just get on with your lives. However, I decline to further moralize. You did something unwise which a very sizable fraction -- and perhaps even a majority -- of Americans have also engaged in at some point in their long lives. You should just remember that these days Little Brother is always watching.

As an editorial aside, the good news is that, if instead of oral sex in a semi-private setting, you had instead wanted to maintain a collection of powerful firearms in your vehicle while it was parked on company premises, a growing number of states (16 as of this writing, though not yet California) would have had your back, and prevented your employer from "firing" you for this (pun intended). Go figure.


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Christine C McCall

Christine C McCall


Moralizing, no; editorializing, yes. Go figure. ;)

Terry Lynn Thomas

Terry Lynn Thomas


Guilty as charged. (blush)


First, to clarify, you can be fired for almost any non-discriminatory reason, and termination under the circumstances you describe is ordinarily legal.

A separate issue entirely is your right to unemployment benefits. In general, a claimant will be disqualified if they are terminated for "misconduct." The EDD has written extensively about what is considered misconduct here: I'd take a look at these materials for suggestions on how to make your case to the EDD. Hint--it may be helpful to argue this occurred off company property and off the clock.

Good luck.

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

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