Badge - AV Preminent
Justia Lawyer Rating
Badge - People Love Us on Yelp
Badge - Avvo Rating, Spencer C. Young, Top Attorney
Badge - Google Reviews

Resignation, Termination, UI and Appeals

Employment in California is “at-will.” This means your employer may terminate your employment at any time, with or without a reason, with or without notice, and without following any particular procedures. Likewise, you are free to resign at any time, with or without a reason. While employees often give two weeks notice as a courtesy, there is no law requiring you to give any notice.

A “separation” from your employer can be a termination, a resignation, or a number of circumstances that fall in between. The circumstances of your separation will determine your eligibility to receive Unemployment Insurance benefits. This determination is made by the Employment Development Department, or the EDD.

When you apply for Unemployment benefits, the EDD asks you and your former employer some standard questions about the circumstances of your separation. The EDD will then follow up with more specific questions, particularly if you and your employer have provided conflicting information about the separation.

Generally, the EDD determines your eligibility based on whether you or your employer was the moving party. The moving party is the party who has placed into motion the events leading to separation. If your employer was the moving party, you will generally be granted benefits. If you were the moving party, you will generally be denied benefits. You may also qualify for benefits in certain cases where it is unclear who the moving party was. If you have questions about how to proceed with the EDD, call an employment attorney at Spencer Young Law. Our office is right across the street from EDD and we have a terrific record of getting employees the benefits they deserve.


If you are terminated, either you or your employer may be considered the moving party, depending on the reason you were terminated. If you are laid off strictly as a business decision, your employer was the moving party. If you were fired after committing serious misconduct, you are considered the moving party because your actions set your termination into motion. However, if you are terminated for minor misconduct, or because your employer is not satisfied with your job performance, your employer is usually considered the moving party.

Example 1: Melvin works on the assembly line at a factory. His work can now be performed by a robot, so he is laid off. This was strictly a business decision, and business decisions are obviously made by business owners and managers. His employer was the moving party, and he is entitled to Unemployment benefits.

Example 2: Starla manages a bar. The owner reviews video footage and sees that Starla routinely pours drinks for customers and pockets their cash payments, without ringing up their orders. Starla is fired. Here, Starla chose to engage in conduct that justified her termination. Although her termination was not voluntary, she was still the moving party because of her voluntary actions. She is not entitled to Unemployment benefits.

Example 3: Carlito is hired as the intake clerk at a veterinary hospital. He has no prior health care or veterinary experience. The hospital knew this at the time he was hired. After three months, his supervisor meets with him about a number of errors he has made in the intake process. One of these errors, while inadvertent, resulted in a customer complaint. Carlito is fired. Here, Carlito was not a good fit for the job, but hiring him despite his inexperience was the employer’s decision, and training and supervising him was within the employer’s control. The employer chose to terminate rather than address the issues through other means. The employer was the moving party, and Carlito is entitled to Unemployment benefits.

Example 4: Alex is a bank teller. During his first week, he miscounts a customer’s cash deposit, resulting in a significant error. His supervisor trains him on a more effective counting method and instructs Alex to practice this method for 10 minutes each day at closing time. Alex keeps making the same mistake over the next month. Video footage reveals that Alex has not practiced the new method even once. The supervisor gives Alex a written performance improvement plan, outlining a number of steps he must take over the next month, such as observing more experienced tellers. He continues to repeat the same mistake, and it is determined that he has not complied with most of the performance improvement plan. He is fired. Although he was terminated in part because of his performance, he was also terminated for failing to comply with the reasonable directives of his employer. This can be viewed as willful defiance, a form of serious misconduct. Alex may be considered the moving party, in which case he is not entitled to Unemployment benefits.

Example 5: Harpreet is the sales manager for an auto parts distributor. She has worked there for five years with no record of misconduct or poor performance. One day, she arrives 20 minutes late to work after inadvertently failing to set her alarm clock the night before. The general manager is irritated and fires her. While the general manager had every right to fire Harpreet for one occurrence of tardiness, the EDD will not consider this to be serious misconduct. It was the employer’s choice to handle this so harshly, so the employer was the moving party. Harpreet is entitled to Unemployment benefits.


If you resign, either you or your employer can be considered the moving party, depending on the reason you resigned. The EDD will generally presume that you were the moving party. However, there are circumstances where it is clear your choice was not actually “voluntary,” and your employer may be the moving party.

Example 1: Erisa is the office manager at an insurance brokerage in San Lorenzo. A recruiter from a law firm reaches out to her and offers her a higher salary and more flexible schedule to manage the firm. Erisa accepts the job offer and informs the insurance brokerage that she resigns. Erisa was the moving party here. She accepted an external offer and decided it was time to move on. She is not entitled to Unemployment benefits.

Example 2: Jawad is a surgical technician in Berkeley. His wife has just accepted a new job, and Jawad has decided to stay home with their young children so his wife can work. He gives his employer two weeks notice. Jawad was the moving party here. It was his decision to quit his job rather than make alternative arrangements for childcare. He is not entitled to Unemployment benefits.

Example 3: Cindy is a waitress in Oakland. She asks the manager for a day off on her birthday. The manager needs her to work that day. Cindy is very upset and quits on the spot. Cindy decided this was something worth quitting over. She was the moving party and is not entitled to Unemployment benefits.

Example 4: Marguerite is a school principal in Fremont. The superintendent tells her that her school has not shown substantial improvement on its standardized test scores. The superintendent states that the school board intends to terminate her employment, but they will give her the opportunity to resign to spare her embarrassment. Marguerite resigns. This is called resignation in lieu of termination because Marguerite would have been terminated if she hadn’t resigned. Her employer was the moving party because by expressing their intent to terminate her, they set into motion her resignation. Marguerite is entitled to Unemployment benefits.

Mutual Agreement or Mutual Misunderstanding

In some cases, both parties are the moving party. In other cases, neither party is the moving party. If you leave your job under one of these circumstances, you likely still qualify for unemployment benefits.

Example 1: Leah is hired as the medical director of a clinic. After one year, she receives her performance evaluation by the Board of Directors, which determines whether her contract will be renewed. This evaluation also gives Leah the opportunity to give her own feedback. The Board believes that Leah’s performance has been adequate, but not excellent. Leah states that she loves the patients, but has felt unsupported by the CEO and COO. Both parties agree it would be best for Leah to work elsewhere. The separation was by mutual agreement. While Leah is one of two moving parties, the EDD is unlikely to penalize her, and she will likely qualify for Unemployment benefits.

Example 2: Kevin is a butcher at a grocery store. He stays a few minutes past the end of his shift. His boss tells him, “Time for you to get out.” Kevin, incorrectly, believes his boss is firing him. Kevin says, “Fine, I’m gone!” and walks out hurriedly. His boss, incorrectly, thinks Kevin is quitting. Kevin doesn’t show up the next day, and he is permanently removed from the schedule. Neither party actually moved for a separation here. This was a mutual misunderstanding, and Kevin is entitled to Unemployment benefits.

If the EDD denies you benefits, you may appeal their decision. If you want to appeal a decision on benefits, or if you have a question about whether you qualify for Unemployment benefits, call an employment lawyer at Spencer Young Law today for your free consultation.

Client Reviews
Great response time! Very thorough! Knows his stuff! My experience was first rate and would recommend Mr. Young because he took the time to address my concerns, provide clear examples, and most importantly, he listened. Ben A.
Mr Young is a brilliant young man with an astounding ability to sort through the dross of a situation, and get a handle on the true issues. And with all that having been said, he communicates with compassion, making sure you understand your options. I recommend him unreservedly. Robert W.
Super responsive and knowledgeable - Spencer not only responded to my inquiry over the weekend but called me immediately on Monday and took time to explain my legal options even though the case wasn't a good fit for his firm. Quincy S.