A-750 1900 Series

A-750-1900

Index 1420-8

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 16, 1981

Interpretation Service - Benefit Claims
TOTAL UNEPLOYMENT
Self Employment

Farmers

A claimant who owns and devotes substantial time to the operations of his farm on a continuous basis is self-employed and therefore not totally unemployed at all times, even though he has periods of full time employment elsewhere.

Appeal Board Decision 305,280

Administrative Law Judge Decision: The initial determination of the local office holding the claimant ineligible to receive benefits effective January 1, 1980 because he was not totally unemployed is overruled.

Appealed by: The Industrial Commissioner

Findings of Fact: Claimant filed an original claim for benefits effective December 31. Claimant has operated a 12-acre cattle farm, owned by him and his wife, for approximately 13 years. The farm maintains 30 to 35 heads of cattle. During the period under review, claimant spent two to three hours a day feeding and taking care of the cattle. He also maintained the farm machinery and buildings. In 1979, the sale of cattle amounted to $4,899.53 and the farm realized a net profit of $378. Claimant has no employees, but his wife occasionally helps out. In non-winter months the claimant also purchases seed and fertilizer, plants corn in the spring, and harvests it in the fall. Even when claimant was working full time elsewhere he always spent several hours a day before and after work, operating the farm.

Opinion: The credible evidence establishes that claimant devotes at least two hours a day on a continuous basis in operating his farm. His activities in connection with his farm are so substantial as to render him not totally unemployed. We therefore hold that claimant was not entitled to benefits during the period in issue.

Decision: The initial determination of the local office holding the claimant ineligible to receive benefits effective January 1, 1980 because he was not totally unemployed is sustained.

The decision of the administrative law judge is reversed. (May 6,1980)

COMMENTS

1. This decision reaffirms the long standing principle that one who performs "substantial " services for his own business (i.e. important and essential to the operation of the business and who stands to gain financially from the business, is engaged in self-employment, and therefore, is not totally unemployed. It is irrelevant that the self-employment services do not interfere with claimant's seeking or accepting employment for wages elsewhere. (Matter of Schreiber, 5 AD 2d 745, A-750-1471; Matter of Soroka, 24 AD 2d 92); not reported; Matter of Jordal, 28 AD 2d 745, not reported)
2. In the present case, the Appeal Board held that "Even when claimant was working full time elsewhere he always spent several hours a day before and after work operating the farm", and that: "His activities in connection with his farm are so substantial as to render him not totally unemployed."
3. In another recent decision, claimant operated a farm engaged in raising pigs. He spent about two hours each day performing the chores necessary to feeding and caring for the animals. The Board held that "The credible evidence establishes that during the period in issue claimant performed substantial services in the operation of a farm and in raising pigs, some of which he sold for profit. He devoted two hours each day to the care and feeding of the animals. Accordingly, we find that he was not totally unemployed during the period in issue". (A.B. 313,566, not reported).
4. It is immaterial whether or not the enterprise is profitable on a continuing basis, or whether the investment is substantial. In a case involving a farm operation where the claimant spent from one and one half hours to four hours daily performing his chores, and usually showed a loss each year, the Court held that: ". . . the Board could properly find that in view of claimant farm activities he was self-employed and therefore not totally unemployed." (Matter of Bartlett, 32 AD 2d 591, not reported)

 

A-750-1901

Index 1640B-7

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

April 3, 1981

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Assignment to other work

PERMANENT CIVIL SERVICE EMPLOYEE

A permanent public employee, appointed to a higher graded position on a provisional basis, does not have good cause to leave employment when the provisional appointment is terminated and the employee reverts to his permanent position.

Appeal Board Decision 300,900

Administrative Law Judge Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective September 29, 1979, because she voluntarily left her employment without good cause is overruled.

Appealed by: The employer

Finding of Fact: Claimant, worked for about five years as a provisional office assistant for New York City, at a salary of $10,000 per year. An appointment was made from a civil service list to replace the claimant.

During 1978, the claimant passed a civil service examination for the position of office aide, an entry-level position. Prior to the date on which the claimant was to be removed from the provisional job she was offered a permanent appointment from the civil service list, at $7,000 per year, as office aide. She last worked on September 28, 1979.

Opinion: The credible evidence establishes that claimant could have continued to work for this employer in an entry-level position for which she had applied and qualified. We conclude that she was reasonably fitted by training and experience for the position of office aide by virtue of her passing the civil service examination for that position. Accordingly, we conclude that claimant voluntarily left her employment for personal, non-compelling reasons and without good cause under the Law.

Decision: The initial determination of the local office is sustained. The decision of the administrative law judge is reversed. (February 27, 1980)

COMMENTS

1. It is a well established principle that choosing to be laid off rather than accepting a transfer to another job at a reduced rate of pay is a leaving without good cause, provided the offered employment meets the statutory tests of prevailing wages and suitability (Matter of Bus, 32 NY 2d 955; A-75O-1741). This principle applies to employees in the public as well as the private sector.
2. Inherent in the present decision is the further principle that an employee assigned to a position provisionally suffers no change in the terms and conditions of employment when reverting to his permanent position. Neither claimant's length of service in the provisional title, nor the salary reduction incurred in reverting to the permanent title is relevant in determining whether there is good cause for leaving.
3. a. In another case concerning a public employee, claimant had been appointed provisionally to a position as Office Assistant. She was also on a civil service eligible list for lower level position, Office Aide. Claimant was to be replaced in her provisional position by another employee who was being permanently appointed. She was offered a permanent appointment as Office Aide at a substantial lower salary. By refusing the offer, claimant constructively resigned, there being no other position for her. In deciding that claimant did not have good cause for voluntary leaving, the Appeal Board held that "she was reasonably fitted by training and experience for the position ...by virtue of her passing the civil service examination for that position" (A.B. 314,137, not reported). The Appeal Board's conclusion is that an individual is fitted by training and experience for a public employment job, if he has passed a civil service examination for that position.

b. In another case the claimant had permanent civil service status as a Stenographer, and later accepted a provisional appointment to the position of Supervising Clerk with substantial salary increase. After almost one year in the higher, provisional title, that position was eliminated. Claimant resigned rather than revert to her permanent civil service position. In sustaining the initial determination of voluntary leaving of employment without good cause, the Appeal Board held that "Claimant knew that her provisional appointment was subject to elimination and that she might be required to return to her permanent title." This concept is inherent in all cases of public employees whose provisional appointments are terminated and who refuse to return to their permanent positions (Matter of Steinberg, affirming without opinion A.B. 266,358; not reported).

 

A-750-1902

Index 1580B-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

May 6,1981

Interpretation Service -Benefit Claims
MISREPRESENTATION
Forfeit penalty, calculation

FALSE CERTIFICATIONS TO TOTAL UNEMPLOYMENT

A claimant, rendering services either as an employee or in self-employment, who falsely certifies to having done no work in employment or self-employment is subject to a forfeit penalty for each week for which he has falsely certified.

Appeal Board Decision 315,823

Administrative law judge decision: The initial determination of the local office holding that the claimant wilfully made false statements to obtain benefits by reason of which a forfeiture of 76 effective days was imposed as a penalty in reduction of his future benefit rights, is modified to be a forfeiture of 22 effective days.

No appeal having been taken from the said decision of the administrative law judge, insofar as it sustains the initial determinations of the local office holding the claimant ineligible to receive benefits effective two days in each statutory week ending December 17, 1979 to February 17, 1980, and two days in the statutory week ending March 9, 1980 because he was not totally unemployed; and charging him with an overpayment of $625 in benefits, ruled to be recoverable, they remain the law of the case.

Appealed by: Industrial Commissioner

Findings of Fact: Claimant rendered services for the employer during the periods in issue. He was employed primarily as a bartender on Friday and Saturday nights. The business is owned by claimant's father-in-law. Claimant has no ownership in the business. From the statutory weeks ending December 17, 1979 through February 17, 1980 and the statutory week ending March 9, 1980, claimant certified during each and every reporting period that he was not employed. Claimant knew that he worked and that his certifications were false. As a result of these certifications he received benefits totaling $625.

Opinion: We disagree with the administrative law judge's conclusion that the forfeit penalty of 76 effective days should be reduced to 22 effective days because "the services were more in the nature of self-employment rather than employment". It is of no consequence that the services rendered were either in self-employment or as an employee for an employer. Claimant made a wilful misrepresentation pertaining to his employment during each and every week that he certified for benefits during the periods in issue, and the local office properly imposed a forfeit penalty of 76 effective days in reduction of his future benefit rights.

Decision: The initial determination of the local office is sustained.

The decision of the administrative law judge, insofar as appealed from is modified accordingly, and as so modified, is affirmed. (February 4, 1981)

COMMENTS

1. In several recent decisions concerning the number of effective days to be imposed as a forfeit penalty upon a principal of a business (corporation, partnership or individual proprietorship) who conceals services rendered in either employment or self-employment, the Appeal Board held:

1. "Each week when claimant certified that he had done no work in employment or self-employment, his certification was a separate offense [underscoring supplied] since it concerned activities in different weeks. A penalty of eight effective days could have been imposed for each certification." (A.B.268,667; not reported)
2. "Claimant's false certifications' did not involve status alone but related to his employment during each week in issue". (A.B. 281,705; not reported)
3. "Claimant should have been penalized... as follows:

eight days for each of the weeks for which he received benefits as a result of his wilful misrepresentation and concealment of employment, and four days when no benefits were paid." (A.B. 282,949; not reported)

2. The present case concerned a claimant who certified to having done no work in employment or self-employment for ten weeks (1 waiting period and nine compensable weeks). The administrative law judge in sustaining the determination of wilful misrepresentation, modified the forfeit penalty of 76 effective days to be 22 effective days because "the services were more in the nature of self-employment rather than employment." The Appeal Board, in modifying the decision of the administrative law judge and sustaining the initial determination, held, "It is of no consequence that the services rendered were either in self-employment or as an employee for an employer. Claimant made a wilful misrepresentation pertaining to his employment during each week that he certified for benefits during the period at issue."

3. Inherent in the Appeal Board's holding is a change in the basis used for calculating the forfeit penalty in cases involving false certifications to total unemployment by a principal of a business. Previously, activities in self employment were considered to be a matter of "status", and as such, wilful false certifications to being totally unemployed were deemed to be repetitions of a single offense. However, each wilful concealment of services rendered as an employee for an employer constituted a separate offense (Special Bulletin A710-21, IIA).

In the present case the Appeal Board eradicates the distinction between self-employment activities and those rendered in employment. Thus, self-employment like employment, in one week is not the same fact as it is in another week. Specifically, each certification, whether relating to self-employment or employment, is a separate offense justifying a separate penalty: a forfeiture of four effective days for each week if no overpayment results from the offense and eight effective days for each week if an overpayment does result.

4. In cases pertaining to concealment of self-employment, the court held that "it is claimant's responsibility to make a full and complete disclosure of all pertinent facts which might be determinative of his right to benefits" (Matter of Marder, 16 AD 2d 303); that "silence when there is a duty to speak, constitutes wilful misrepresentation" (Matter of Galitzer, 2 AD 2d 923); that claimant has a "duty to make appropriate inquiry of local office" and "...was not privileged to speculate on the legal affects of his activities" (Matter of Vick, 12 AD 2d 120).

 

A-750-1903

Index 1460F-7

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 11, 1981

Interpretation Service - Benefit Claims
TOTAL UNEMPLOYMENT
Employment Contracts

Excessed Teacher - Annual Contracts

A teacher, excessed at or before the end of the school year, is totally unemployed during the subsequent summer recess, only when the employment contract does not set forth a specified period of employment at a specified salary for such period.

A.B. 304,493A

Claimant applies, pursuant to Section 534 of the Law, to reopen and reconsider the decision of the Board filed January 14, 1980 (Appeal Board No. 298,505) which reversed the decision of the administrative law judge filed September 28, 1979, which overruled the initial determination of the local office holding claimant eligible to receive benefits effective July 2, 1979 without disqualifying conditions, and sustained the employer's objection to hold that claimant was ineligible to receive benefits effective July 1, 1979 because she was not totally unemployed.

Findings of Fact: Claimant first worked for the employer school district when she accepted an appointment as a science teacher, effective September 1, 1974. She continued in such employment in each of the next several years.

On June 30, 1978, pursuant to the options provided in the collective bargaining agreement between the teachers' union and the employer for 20, 22 or 24 salary payments, claimant elected to be paid for the school year 1978-79 in 20 installments.

On March 9, 1979, claimant was informed by the employer that a reduction in enrollment necessitated the elimination of her position and that it was to be terminated, effective June 30, 1979. This was confirmed on June 18, 1979 in another letter from the employer. On June 21, 1979, claimant was informed by the business office of the school district that it would be possible for her to pay her health insurance premiums during the summer of 1979 directly to the carrier.

Claimant filed an original claim effective July 2, 1979. During the weeks that followed, she completed the requirements for her certification in two new areas, mathematics and social studies. On August 10, 1979, claimant was notified that she had been appointed as a teacher in the school district. She notified the local office of this and discontinued her claim. She started to work, for the employer in September, 1979 as a 7th grade social studies teacher.

Opinion: The issue in this case is whether claimant was employed on an annual contract which ended August 31, 1979. If not, having been excessed as of June 30, the end of the school year, she would be entitled to benefits like any other person who became unemployed through no fault of her own.

In this case, there was no evidence of any kind to establish that there was any discussion of the term of employment between the school district and claimant. We must, therefore, look to their actions in order to determine their intent. In this case, there was no written notice of appointment stating that it was for one year, effective September 1, 1978 (See Appeal Board Nos. 306,854A; 306,857A; 306,858A) or effective September 1, 1977, at a stated annual salary (See Appeal Board No. 306, 229A), as has been done in other school districts. In the instant case, the affirmative acts of the school district in notifying claimant that her employment was terminated as of June 30, the end of the school year, and that she had to pay for her health insurance after that date, point to the conclusion that the employer did not consider that claimant was employed under an annual contract which ended on August 31. To conclude that there was an annual contract, under these circumstances, is pure fantasy. It would be unconscionable to deny benefits to one whose employment has been terminated, simply because that person was a teacher in one of the public schools in this state. To conclude that an annual contract existed, despite the lack of any proof thereof, would make all public school teachers ineligible for benefits, regardless of any other circumstances. Such a rule must be mandated by the legislature. It has not done so, especially as to teachers who have been excessed. Significantly, the legislature has mandated only that teachers who continue employment from year to year and have reasonable assurance of such continued employment, cannot qualify for benefits during the summer months (Labor Law, Section 590.10).

It has been suggested that the terms of the employment agreement may be spelled out from custom, usage and practice, supported by the collective bargaining agreement between the teachers' union and the school district. However, this ignores the fact that all parties agree that the collective bargaining agreement is not a contract of employment. This leaves only custom, usage and practice from which to define the terms of this claimant's employment. It is well known that teachers in the public schools work only during the ten month school year, from September through the following June. They do not work during July and August. Summer school employment is a matter of separate hiring and payment. It is also significant that the collective bargaining agreement does not refer to annual salaries for teachers, but only to base salaries, and that the school calendar covers only ten months, from September through June. If anything, custom, usage and practice establish that the period of such employment is the ten-month school year.

It should be noted that prior to January 1, 1978, public school teachers were not able to qualify for unemployment insurance benefits, and that the collective bargaining agreement herein ran for three years, from July 1, 1976 to June 30, 1979. Clearly, the school district and the union did not consider that teachers were employed under an annual contract.

Moreover, it should be noted that the school district no longer urges that the option given to the teacher to be paid in 26 installments is the basis for the contention that claimant worked under an annual contract which ends on August 31. It relies solely on the original probationary appointment and urges that each renewal of employment was for one year, rather than for the ten month school year. The evidence herein does not support this contention.

The credible evidence now before the Board establishes that the term of the appointment for each year after the probationary period was not discussed or even considered by the school district or the teacher. The notice of probationary appointment does not define the period of probation and states only that it is effective September 1. The school district contends it was for one year, ending August 31 of the following year. The affirmative actions of the school district indicate otherwise. It has long been established that any ambiguity in a document must be resolved against the author (Rentways v. O'Neil Milk, 308 NY 342).

In our view the probationary period in this case was the period in which claimant rendered services as a teacher - the school year, which ran from September through the following June. It cannot be extended to include a period during which the teacher does not work and cannot be observed. We have recently considered a case in which the collective bargaining agreement between the teachers' union and a school district in Westchester Community provides that the first salary step ends on June 30 following the commencement of the appointment. (Appeal Board No. 312,149)

We need not speculate about the pension system of teachers or that a teacher may be credited with a full year of service, even though he or she worked only during the ten month school year. The pension system does not establish the term of each period of employment.

We are not aware of any decision by our appellate courts to the effect that the teachers in our public schools are 12-month employees. The cases usually cited indicate that the courts will not set aside a decision by the Appeal Board in which it has found a 12-month contract, provided there is substantial evidence to support such conclusion. These cases are readily distinguishable. In Matter of Darwin (30 AD 2d 996) claimant was a state civil servant, who was hired on a 12 month basis, and was assigned to a mental hospital as a teacher. He was not required to teach while school was not in session. He was not excessed from his job and returned to teach after the summer. Utter (52 AD 2d 994) and Wolfson (57 AD 2d 10) were teachers in private school who were found to have been hired on an annual basis. Utter conceded this in his appeal to the court. Wolfson was hired and paid for 12-months, but his vacation pay for July and August was deferred until the following December. Neither was excessed from his job. The claimant herein is not a state civil servant, nor did she concede a hiring for 12 months, nor was she given any vacation pay for July and August.

No single affirmative act or piece of evidence has been produced to compel the conclusion that there was an annual contract of employment for this claimant. The only affirmative acts - the notice that claimant was excessed as of June 30, and the employer's cutting off the health benefits which it had provided until that date indicate that she was not employed under an annual contract that ended on August 31.

In view of the foregoing, we reject the employer's contention as without merit. It has not been substantiated by any credible evidence. There was no annual contract of employment in this case. Claimant was totally unemployed as of the date of the filing of this claim.

Decision: The decision of the Board filed January 14, 1980 (Appeal Board No. 298,505) is rescinded.

The initial determination of the local office holding claimant eligible to receive benefits effective July 2, 1979 without disqualifying conditions, is sustained.

The employer's objection that claimant was ineligible to receive benefits effective July 2, 1979 because she was not totally unemployed, is overruled.

The decision of the administrative law judge is affirmed.

COMMENTS

1. It is a long-standing principle that a person employed pursuant to an annual contract is deemed employed throughout the contract period. The courts have so held in many instances with respect to employees of educational institutions (Matter of Darwin, 30 Ad 2d 996, not reported; Matter of Jacob and Shafonda, ___AD 2d ___, A-750-1844).

The Appeal Board originally overruled a determination that the claimant in the present case was eligible for benefits and held her to be ineligible because she was not totally unemployed, citing Matter of Darwin, A.B. 298,505, not reported). Subsequently the Appeal Board granted claimant's application to reopen and reconsider its decision, and the present decision resulted.

2. The thrust of the Appeal Board's decision is that: "letters of appointment for the school year", "salary notices for the school year", collective bargaining agreements, or methods of payment do not establish employment under an annual contract. "The employer's use of the word 'annual' in its notice of salary is insufficient to transform the specified 10 month period of employment into a contract of employment for a year." {A.B. 313,151; not reported)

In another case where claimant served as an assistant professor for the academic year comprising the fall and spring terms through June 1980, the, Appeal Board held: "The term 'academic year' did hot define the dates within which his contract was confined". (A.B. 315,784; not reported). Similarly, where the salary agreement prepared by the employer set forth that the term of employment was for the school year 1979-1980 and contained the salary options offered to claimant, which appeared below the signature of the school principal and referred to "annual salary", the Appeal Board held: "..., this fortuitous circumstance cannot convert the agreement of employment for the school year into an annual contract." (A.B. 314,423; not reported) (A.B.314,421; not reported)

3. The rule of this release is to be applied only to excessed teachers whose employment contract does not set forth the dates within which the contract is confined.

The established principle that a person employed for a specified period at a specified total salary for that period, is not totally unemployed through out such period continues.

 

A-750-1906

Index 1460F-8

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 9, 1981

Interpretation Service - Benefit Claims
TOTAL UNEMPLOYMENT
Employment Contracts

ANNUAL COMPENSATION - INSTITUTIONAL TEACHERS

Teachers, who are permanent state civil service employees and employed on an annual basis, are paid under an annual contract pursuant to Section 136.2 of the civil service law and are not totally unemployed during the summer recess. That they are not required to render services for the employer during the summer recess or that their total salary is paid during the ten-month school year is immaterial.

A.B. 318,409A

The Industrial Commissioner applies, pursuant to Section 534 of the Law, to reopen and reconsider four decisions of the Board.

The decision of the Board filed December 2, 1980 (Appeal Board 312,320) affirmed the decision of the administrative law judge filed August 27, 1980 (A.L.J. 80-31377) overruling the initial determination of the local office holding claimant D.D. ineligible to receive benefits effective July 7 through august 31, 1980 because he was not totally unemployed; and holding the claimant, a professional employee of an educational institution, ineligible to receive benefits effective June 23, 1980 between two successive academic years or terms, pursuant to Section 590.10 of the Law (Appeal Board 318,411A).

The decision of the Board filed December 3, 1980 (A.B. 312,147) affirmed the decision of the administrative law judge filed August 22, 1980 (A.L.J. 80-30300) overruling the initial determination of the local office holding claimant H.L., a professional employee of an educational institution, ineligible to receive benefits effective June 30, 1980 between two successive academic years or terms, pursuant to Section 590.10 of the Law (A.B. 318,412A).

The decision of the Board filed December 17, 1900 (Appeal Board 314,477) affirmed the decision of the administrative law judge filed October 2, 1980 (A.L.J 80-37094) sustaining the initial determination of the local office holding claimant H.L. ineligible to receive benefits effective June 30, 1900 because he was not totally unemployed (A.B. 318,411A).

The decision of the Board filed December 15, 1900 (A.B. 314,485) affirmed the decision of the administrative law judge filed October 1, 1980 (A.L.J. 80-31920) sustaining the initial determination of the local office holding claimant P.C., a professional employee of an educational institution, ineligible to receive benefits effective July 14, 1980 between two successive academic years or terms, pursuant to Section 590.10 of the Law (A.B. 318,409A).

Subsequent to that decision of the Board, the local office issued a new initial determination holding claimant R.C. ineligible to receive benefits effective July 1 through September 1, 1980 because he was not totally unemployed.

A combined hearing was held before the Board at which all parties were accorded a full opportunity to be heard and at which claimants R.C. and H.L., representatives of the employer and of the Industrial Commissioner appeared and testimony was taken. The Board considered the arguments contained in the written statement submitted on behalf of the Industrial Commissioner in connection width this application.

The parties present at the hearing before the Board consented and agreed that the initial determination of the local office holding the claimant R.C. ineligible to receive benefits effective July 1, through September 1, 1980 because he was not totally unemployed, would be considered at this hearing.

After due deliberation having been had thereon, the Board has determined to reopen and reconsider its said decisions.

Now, therefore, based on the entire records and testimony in these cases and on all of the proceedings heretofore had herein, the Board makes the following:

Findings of fact: Claimants, permanent civil service employees, have been employees, have been employed at a psychiatric center, operated by the Department of Hygiene for the State of New York, as teachers for at least four years. They were employed on an annual basis. They were paid their salaries over a 10-month period from September 1, through June 30 of the next year. They were not obligated to perform services during the summer months.

Claimant R.C. filed an original claim for benefits effective July 14, 180. Claimant D.D. filed an original claim effective July 8, 1980. Claimant H.L. filed an original claim for benefits on July 1, 1980.

Opinion: The evidence establishes that, during the periods in issue herein, the claimants were employed on an annual basis. They received the full annual salary of a member of the State civil service. It is not controlling that they were not required to perform services during the summer. Accordingly, we conclude that they were not totally unemployed (Matter of Darwin, 30 Ad 2d 996, aff'g A.B. 141,577).

In view of the above holding, it is not necessary to consider the initial determinations which relate to Section 590.10 of the law.

Decision: The decisions of the Board filed December 2, 1980 (A.B. 312,320), December 3, 1980 (A.B. 312,147), December 17, 1980 (A.VB. 314,477), and December 15, 1980 (A.B. 314,485) are hereby rescinded.

The initial determination of the local offices holding claimants D.D., H.L. ad R.C. ineligible to receive benefits, effective July 7 through August 31, 1980 for D.D., effective June 30, 1980 for H.L., and effective July 1 through September 1, 1980 for R.C. because they were not totally unemployed are sustained.

The decision of the administrative law judge filed October 2, 1980 (A.L.J. 80-37094) with respect to claimant H.L. is affirmed.

The decision of the administrative law judge filed august 27, 1980 (A.L.J. 80-31377) with respect to claimant D.D. is modified accordingly and, as so modified, is affirmed.

In view of the foregoing, it is not necessary to rule on the other decisions, with respect to Section 590.10 of the Law. (June 8, 1981)

COMMENTS

1. These decisions reaffirm the established principle that a person employed for a specified period at a specified total salary for that period is not totally unemployed throughout such period.
2. The claimants herein were employed as instructional teachers at a psychiatric center, operated by the New York State Department of Mental Hygiene. Prior to July 1, 1966, teachers employed by the Department of Mental Hygiene were paid their annual salaries over 26 payroll periods each year. Thereafter the method of payment was changed and annual salaries were paid over 20 payroll periods per year. Subsequently, the Appellate Division held that: "Section 136 of the Civil Service Law, as amended by chapter 454 of the Laws of 1965, which provided that the total salary due to institutional teachers for any year shall be paid over a period of 10 months, did not create a condition under which such teachers would be considered totally unemployed during the summer recess." (Matter of Darwin, 30 AD 2d 996; not reported).
3. The present rule applies to permanent, full time, civil service employees. A part-time teacher whose conditions of hire specify the dates of teaching sessions and the compensation thereof, is employed only on those days when he performs substantial services in connection therewith, but is totally unemployed on all other days. In determining what constitutes the performance of substantial services the Appeal Board has excluded the reading and research engaged in by teachers in order to maintain their expertise and broaden their professional knowledge (A.B. 217,480, A-750-1820. However, the preparation of, attendance at or the grading of examinations are substantial services and are considered employment when performed.

 

A-750-1908

Index No.1105 B-3

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 7, 1981

Interpretation Services -Benefit Claims
MISCONDUCT
Relation of Offense to Discharge

IDENTITY OF EMPLOYER - POLITICAL SUBDIVISIONS

The City of New York is one employer, so that a claimant who commits acts of misconduct while employed at one City agency is subject to disqualification when discharged for that reason by another City agency for which he had started work before the discovery of the misconduct.

A.B. 322,622

The claimant appeals from the decision of the administrative law judge filed April 30, 1981 sustaining the initial determination of the local office disqualifying him from receiving benefits effective January 22, 1981 because he lost his employment through misconduct in connection therewith.

A hearing was held before the administrative law judge at which all parties were accorded a full opportunity to be heard and at which the claimant, his attorney, a representative of, and witnesses for the employer and a representative of the Industrial Commissioner appeared and testimony was taken. The Board considered the arguments contained in the claimants written statement submitted on appeal.

Based on the record and testimony in this case, the Board makes the following

Findings of Fact: The claimant was employed as a traffic enforcement agent with the New York City Department of Transportation for approximately three years through August 26, 1980. He left this job to accept an appointment with the New York City Police Department beginning September 2, 1980. Following complaints by private individuals, the Department of Transportation instituted an investigation and found that, during 1980, the claimant issued "ghost summonses". These are summonses which use vehicle identification information from previously issued summonses but which are issued against vehicles without any actual violation and are used to enhance an agent's productivity record. The investigation was completed after claimant joined the Police Department. The information was forwarded to the Police Department and, following a departmental hearing, claimant was discharged on January 21, 1981, while in his probationary period.

Opinion: The evidence establishes that the claimant issued fraudulent summonses while working as an agent for the New York City Department of Transportation and was discharged therefor by the Police Department in which he had subsequently been appointed. His actions showed an intentional and substantial disregard of standards of behavior which the employer has a right to expect. As to the claimant's contention that the charges which resulted in his dismissal were not related to his employment with the Police Department, we note that, at all times herein, his employer was the City of New York. Accordingly, we conclude that he lost his employment through misconduct in connection therewith.

Decision: The initial determination of the local office is sustained.

The decision of the administrative law judge is affirmed.

COMMENTS

The principle that an employee of a political subdivision is employed by that entity rather than by a particular department is not new. The Appeal Board has held that the United States Government is a single employer (UCFE -1534) so that all Federal pensions, civilian or military, were to be used in computing a benefit rate reduction.

In the present case the Board has applied that principle to cases of misconduct. Despite claimant's resignation from the Department of Transportation, the City agency bringing the charges, the Board found, "at all times herein, his employer was the City of New York." This principle would apply to the State of New York and its agencies and departments as well as to other cities, towns, countries, etc.

 

A-750-1909

Index 815-7

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 15, 1981

Interpretation Service -Benefit Claims
REGISTRATION, REPORTING AND CERTIFICATION

REFUSAL TO SIGN AN OFFSET RECEIPT

Refusal to sign an offset receipt is not a failure to comply with reporting requirements when claimant reports as scheduled to the local office and is willing to sign a regular pay order.

A.B. No. 319,557

The claimant appeals from the decision of the administrative law judge filed February 23, 1981 insofar as it sustains the initial determination of the local office holding the claimant ineligible to receive benefits effective September 11, 1980 because he failed to comply with reporting requirements. No appeal was taken from the said decision insofar as it overrules the initial determination of the local office disqualifying the claimant from receiving benefits effective August 4, 1980 because he voluntarily left his employment without good cause.

Hearings were held before the administrative law judge at which all parties, were accorded a full opportunity to be heard and at which the claimant and a representative of the employer appeared and testimony was taken.

On April 23, 1981, while this appeal was pending, the local office issued new initial determinations (1) holding the claimant ineligible to receive benefits effective September 11, 1980 because he failed to comply with reporting requirements and procedures in that he "refused to comply with reporting procedures which would have required you to offset current benefit payments due you to offset current benefit payments due you against an outstanding overpayment and a forfeiture was imposed as a result of wilful misrepresentation"; and (2) holding that, effective September 11, 1980, benefits payable to claimant "on account of a valid original claim can be applied as offsets for the collection of a debt arising out of a prior overpayment of benefits. Section 594 of the Law requires a claimant to refund all monies received because of a wilful false statement of representation."

A further hearing was held before the Board at which all parties were accorded a full opportunity to be heard and at which the claimant, and a representative of and a witness for the Industrial Commissioner appeared and testimony was taken. The Board considered the arguments contained in the written statement submitted by the claimant on appeal.

Based on the record and testimony in this case, the Board makes the following

Findings of Fact: By decision of the Board filed June 24, 1980 (A.B. 304,704-A), the claimant was ruled to have been overpaid $1,667.50 in benefits, ruled to be recoverable; and because of claimant's wilful misrepresentations a forfeit penalty of 58 effective days was imposed as a penalty in reduction of his future benefit rights. The claimant appealed that decision to the Appellate Division of the Supreme Court, Third Department. Pursuant to Rule 800.12 of that Court, the claimant's appeal was deemed to have been abandoned one year after the date of the said Board decision. The claimant filed an original claim for benefits on August 6, 1980 after this separation from his employment as an insurance agent on August 4, 1980. Since it had been ruled that the claimant had been overpaid benefits and that the overpayment was recoverable, in keeping with local office procedures, the claimant was asked to sign a special pay order each week when he reported to claim benefits. That pay order contains the following: "I KNOW THAT THIS CERTIFICATION IS TO BE USED AS A CREDIT IN THE AMOUNT SHOWN ABOVE AGAINST THE BENEFITS I WAS OVERPAID." The "amount shown above" was the claimant's benefit rate. Claimant refused to sign these special pay orders. On August 15, 1980 and September 11, 1980, the claimant signed statements at the local office that he was refusing to sign these pay orders because of his then pending appeal to the Court from the decision of the Board filed June 24, 1980 (Appeal Board 304,704A).

Opinion: In the case now before the Board, no appeal was taken from the decision of the judge insofar as it overruled the initial determination of the local office disqualifying the claimant from receiving benefits effective August 4, 1980 because he voluntarily left his employment without good cause. Since the Board perceives no basis to reconsider that portion of the decision, it remains the law of the case that the claimant's separation from that employment occurred under non-disqualifying conditions.

The credible evidence now before the Board establishes that the claimant refused to comply with the directives of the local office that he sign special pay orders which contained a statement in which he would acknowledge that his current benefits were being applied as a credit against a prior recoverable overpayment. A claimant is required to file a claim for benefits within such time and "in such manner" as the Commissioner shall prescribe (Labor Law Section 596.1). In Matter of Soto. (35 AD 2d 395, aff'g A.B. 156,913) the Court recognized the right of the Industrial Commissioner to practice setoff when the claimant is entitled to current benefits which are less that the debt owed by that claimant to the Department of Labor. The primary issue in this case is whether the Industrial Commissioner may require a claimant to sign a special pay order in which he acknowledges that his current certification is to be used as a credit against prior benefits which the claimant had been overpaid. During the period in issue, the claimant's appeal to the Appellate Division was still pending. In effect, by reason of that pending appeal, he was denying that there was a prior recoverable overpayment. Had he signed the special pay order, he would have been acknowledging a prior recoverable overpayment. Although we do not question that the Industrial Commissioner may practice offset in appropriate situations, we find that the Industrial Commissioner's requirement in this case, that such a pay order be signed, is an abuse of discretion. Accordingly, we conclude that the claimant's refusal to sign that special pay order does not constitute a failure to comply with reporting requirements. Our decision in no way limits the power of the Industrial Commissioner to practice offset with regard to current benefits when there is a prior overpayment. Should a claimant refuse to sign the special pay order, the Industrial Commissioner could then require the claimant to sign the usual pay order which does not contain an acknowledgment of a prior recoverable overpayment. Once the claimant has signed that regular pay order the Industrial Commissioner may proceed to recover overpayments by whatever other means may be available. The Commissioner cannot use the special pay order in this case.

Decision: There having been no appeal therefrom, the decision of the administrative law judge filed February 23, 1981, insofar as it overruled the initial determination of the local office disqualifying the claimant from receiving benefits effective August 4, 1980 because he voluntarily left his employment without good cause, remains in effect.

The initial determination of the local office holding the claimant ineligible to receive benefits effective September 11, 1980 because he failed to comply with reporting requirements and procedures are overruled.

The initial determination of the local office holding that, effective September 11, 1980, benefits payable to the claimant on account of a valid original Claim can be applied as offsets for the collection of a debt arising out of a prior overpayment of benefits is sustained.

The decision of the administrative law judge is modified accordingly and, as so modified, is affirmed.

COMMENTS

1. In the present case claimant refused to sign the offset receipt because of a pending appeal to the courts from a decision in another case which resulted in the overpayment. In a similar case (A.B. 320,965) the Appeal Board held there is no failure to comply with reporting requirements even though the claimant agreed there was a recoverable overpayment and no appeal was pending. However, the Appeal Board reached a different conclusion in the case of a claimant who refused to sign any pay order because part of his benefits were being withheld for child support pursuant to a court order. The Board held that an order of the court is binding, and the claimant's proper recourse is with the courts (A.B 325,573).
2. The Appeal Board's holding in the present decision does not abridge the Industrial Commissioner's right to recover outstanding overpayments by withholding current benefits. This right has long been upheld by the Appeal Board and by the Appellate Division (Matter of Soto, 35 AD 2d 395). The only issue before the Board was whether a refusal by a claimant to sign a special pay order for offset purposes is a failure to comply with reporting requirements, when the claimant is willing to sign a regular pay order.
3. Claimants who contest the Commissioner's right to offset current benefits to repay a prior overpayment have a right to be heard on that issue (Matter of Malina, 52 AD 2d 229) Local Offices should process their requests on this issue.

 

A-750-1910

Index 1110-9

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 17, 1981

Interpretation Service - Benefit Claims
MISCONDUCT
Absence and lateness

FAILURE TO NOTIFY EMPLOYER

Failure to notify one's employer when absent is misconduct, notwithstanding reliance on a friend to inform the employer of the absence.

A.B. 323,434

The Industrial Commissioner appeals from the decision of the administrative law judge filed May 4, 1981, insofar as it overrules the initial determination of the local office disqualifying the claimant from receiving benefits effective March 31, 1981 because he lost his employment through misconduct in connection therewith.

A hearing was held before the administrative law judge at which all parties were accorded a full opportunity to be heard and which claimant appeared and testimony was taken. The Board considered the arguments contained in a written statement submitted on behalf of the Industrial Commissioner on appeal.

Based on the record and testimony in this case, the Board makes the following

Findings of Fact: The claimant worked intermittently for the employer herein for approximately seven months until March 19, 1981. He was absent from work from March 20 through March 30, 1981 in order to visit his father in Georgia, who was seriously ill. He asked his girlfriend to report his absence to the employer, but she forgot to do so. Claimant returned to work on March 31, 1981 and was discharged for being absent without notification. He could have notified the employer himself.

Opinion: The credible evidence establishes that because the claimant failed to inform his employer of his absence, he was discharged. We do not agree with the judge's conclusion that the claimant's failure to notify his employer should be excused because he had made a good faith effort to contact his employer by asking a friend to do so. The failure of his chosen agent to notify the employer is attributable to him and it constitutes misconduct on his part (Appeal Board 304,902; 314,255). Significantly, claimant could have notified the employer of his absence, but chose another means of doing so.

Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective March 31, 1981 because he lost his employment through misconduct in connection therewith is sustained.

The decision of the administrative law judge, insofar as appealed from, is reversed.

COMMENTS

1. It is a long-standing principle that an employee is obligated to contact the employer when absent, and that failure to do so constitutes misconduct. In the present case the Appeal Board held that a claimant does not discharge this obligation merely by asking someone else to call in for him, but that he must personally contact the employer.
2. In a similar case the Board upheld a misconduct disqualification when a claimant, too ill to return to work as scheduled after a temporary layoff, was absent two days without notifying the employer. Although the claimant had asked his mother to report the absence, she did not do so (A.B. 235,613).
3. The Board has consistently held that claimants are responsible for the actions of their agents (A.B. 314,255; A.B. 304,902). Accordingly, in the instance of a claimant unable personally to promptly notify the employer of an absence, the claimant must, nevertheless, make an effort to insure that his agent has done so, and must personally contact the employer as soon as possible thereafter.

 

A-750-1911

Index No.915 A-4

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 31, 1981

Interpretation Service -Benefit Claims
DETERMINATION OF BENEFITS
Reduction due to Pension

ESTIMATED PENSION AWARDS

When a claimant's right to a pension has been established, and an estimated amount of the pension determined, his benefit rate is subject to a reduction based on the estimated amount, even though issuance of the pension payments is held in abeyance pending final computation of the pension award. Should the final award differ from the estimated amount, a redetermination of the amount of reduction is to be made.

Appeal Board Decision 320,165

The Industrial Commissioner appeals from the decision of the administrative law judge filed March 5, 1981 insofar as it modifies the initial determination of the local office holding that effective January 5, 1981 claimant's benefit rate be reduced from $125 to $0 pursuant to Section 600 of the Law, as modified to exclude from the amount of the reduction the estimated pension benefits which the claimant will receive.

A hearing was held before the administrative law judge at which all parties were accorded a full opportunity to be heard and at which the claimant appeared and testimony was taken. The Board considered the arguments contained in the written statement submitted on behalf of the Industrial Commissioner on appeal.

Based on the record and testimony in this case, the Board makes the following

Findings of fact: The claimant was employed as a jailer by a municipality for over 30 years. He last worked on December 31, 1980 when his position was abolished. He filed an original claim for benefits on January 1, 1981.

Claimant is 63 years of age. He applied for and is receiving Social Security benefits amounting to $558.10 per month. Since no appeal was taken therefrom, it is the law of the case, that the claimant's benefit rate be reduced by one-half of the weekly amount of his social security pension and that reduction is $64.

The claimant was a member of the New York State Employees Retirement System. He has applied for his pension but has not yet received a payment from the retirement system. However, the claimant was notified that he is entitled to estimated payments of $741 a month from the retirement system. This reflects an approximate annual pension of $7,957 and an annual annuity of $946. The employer was the sole contributor to the pension portion of the payments which the claimant will receive. The pension portion of the estimated monthly payment would be $663.

Opinion: The issue before the Board is whether the claimant's benefit rate is to be reduced by the estimate amount of the pension which he will be receiving. Section 6OO.7(a) of the Law provides for a reduction of the pro-rated weekly amount of a pension which the claimant "is receiving." Subparagraph (b) of that subdivision provides that unemployment benefits shall be paid without a reduction if "it has not been established that the claimant will be receiving a pension." That subparagraph provides for a review of those unemployment insurance benefits as with a retroactive payment of remuneration.

It is the law of the case that the claimant's benefit rate be reduced by $64 by reason of receipts of his social security pension. The evidence establishes that the claimant is entitled to a pension from the State Employees Retirement System. At this time, the claimant is not "receiving" the pension but his rights to that pension have been "established" and an approximate monthly payment amount has 'been determined. Since the employer wholly contributed to the pension portion of the payment from the retirement system, the claimant's benefit rate would be reduced by the pro-rated weekly amount of that payment. It would be necessary for the monthly estimate to be over $120 in error before the claimant's benefit rate would be reduced to an amount in access (sic) of $0 when considering the pension alone. When the Social Security payments are also considered, the monthly estimate would have to be about $400 in error before the claimant would be entitled to receive any unemployment insurance benefits following such reduction. Since the claimant's rights have been "established" [subparagraph (b)], the six month period during which the local office may review the claimant's benefit rate and recover any overpayment has begun to run (See Appeal Board 309,925 where estimates of the retirement payment could be made but a final determination of the pension had not been made). Accordingly, we conclude that it was proper for the local office to reduce the claimant's benefit rate to $0 based on his Social Security benefits and the estimated amount of his retirement pension. Should the estimate eventually be found to be in error, the local office would have one year from the date of the initial determination herein (Labor Law Section 597.3) to revise the said initial determination and to pay any benefits which may be due to the claimant if the error is in excess of approximately $400 a month.

Decision: The initial determination of the local office is sustained.

The decision of the administrative law judge, insofar as appealed from, is reversed.

COMMENTS

1. Section 6OO.7(a) requires a benefit rate reduction when a claimant is receiving...a pension, retirement...pay, annuity or...similar periodic payment. .." In this case the Appeal Board held that a claimant "is receiving" from the time entitlement to the pension is established, although the first payment is delayed but will be issued at a later date.
2. Section 6OO.7(c) provides that "If...it has not been established that the claimant will be receiving such pension...benefits due shall be paid without a reduction, subject to review within the period and under the conditions" of Sections 597.3 and 597.4 with respect to retroactive payments of remuneration. In the present case it was established that claimant would receive a pension. Thus, the benefit rate was properly subject to a reduction which, itself, would be modified upon the establishment of the final pension, if different from the estimated amount.

Section 597.3 limits (in the absence of fraud or wilful misrepresentation) the Industrial Commissioner's right of review of a determination to six months if such review is based on a retroactive payment of remuneration. Thus, where a local office, informed by a claimant that he had applied for a pension, delayed taking any action for more than six months pending final computation of the pension, the Appeal Board held the resultant overpayment to be non-recoverable because the local office did not act within the time allowed by law (A.B. 309,925).

3. It is incumbent upon the local office to act without delay when informed by a claimant or some other source that there is pension entitlement. An estimated pension payment must be used as a basis for a benefit rate reduction with a redetermination to be made upon learning of the final pension. Prompt action by the local office is also needed when there is a retroactive determination of pension eligibility So that an appropriate employment insurance benefit rate reduction is made within the permissible six months period.

 

A-750-1913

Index No.1105 B-4
1605 F-7

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 30, 1982

Interpretation Service - Benefit Claims
Misconduct
Voluntary Leaving

Indefinite layoff - retention of recall rights

A layoff due to lack of work with no definite date of recall severs the employer/employee relationship, notwithstanding claimant's retention of union seniority and recall rights.

Appeal Board Decision 329,932

Findings of Fact: Claimant, a stock sorter, worked for the employer from September 5, 1978 until June 26, 1981, when he was laid off due to lack of work. Claimant filed an original claim for benefits effective June 29, 1981.

Claimant was sent a recall letter on October 12, 1981, requiring him to report for an interview on or before October 17, 1981, or be "terminated from the company." Claimant was out of town from October 12 until October 19, 1981, on a hunting trip. He received the recall letter upon his return and contacted the employer on the afternoon of October 19, 1981. The collective bargaining agreement between the employer and the union provides for the loss of seniority and termination of employment if an employee fails to respond to a recall letter within five days. The employer terminated claimant's seniority and rights to reemployment, in accordance with this contract, on October 20, 1981.

Opinion: The credible evidence establishes that claimant was laid off with no definite date of recall, due to lack of work, on June 26, 1981. The employment relationship was severed at that time. Claimant did not subsequently work for the employer. Although the collective bargaining agreement provides for termination of employment and seniority rights for failure to respond in a timely fashion to a recall letter, there was no employment relation ship to be terminated at any time after June 26, 1981, under the Unemployment Insurance Law. Accordingly, we conclude that claimant could not have been discharged for misconduct or for any other reason on October 20, 1981.

Decision: The initial determination of the local office is overruled.

The decision of the administrative law judge is affirmed.

COMMENTS

1. A temporary layoff with a definite recall date would not sever the employment relationship. Thus, a claimant who, without good cause, refuses to return to work or who commits acts of misconduct (e.g. vandalism of the employer's property) while temporarily laid off, is still subject to disqualification.
2. If a claimant on an indefinite layoff refuses recall while in benefits, the local office must resolve the issue of refusal.

 

A-750-1914

Index 1605 A-6
1615 - 6

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

April 2, 1982

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Anticipation of discharge or layoff

Voluntary Leaving Prior to Effective Date of Discharge

A claimant who has received a notice of discharge for reasons not constituting misconduct does not voluntarily leave employment by refusing to work the last two days before the effective date of discharge.

Appeal Board Decision 329,055

Findings of Fact: The claimant was employed as a secretary for an abstract corporation. On July 29, 1981, her employer informed her that she was being discharged two days later, at the end of the workweek, on July 31, 1981. The claimant left at 1:15 the same afternoon and did not return.

Opinion: In Matter of Grieco (41 A.D. 2d 799, rev'g Appeal Board 176,269), the Court held that where the employer agreed to advance the date of claimant's separation from the date the employer originally set for the claimant's discharge, his separation was involuntary, and took effect immediately. The Board has since held that where the employer notified claimant that she was to be discharged for unsatisfactory performance two days hence and claimant did not work the last two days it was not a voluntary leaving of employment without good cause, even if the employer did not agree to advance the date of discharge (Appeal Board 270,138; 325,698).

The evidence establishes that this claimant, when informed that she was to be discharged on the second day following, left her employment immediately. Accordingly, we conclude that the claimant's employment ended under non-disqualifying conditions.

Decision: The initial determination of the local office is overruled. The decision of the administrative law judge is reversed.

COMMENTS

1. The Appeal Board has held that a claimant who stops working two days before discharge does not voluntarily leave employment.

2. This principle should not be extended to situations where there has been a quit more than two days before the effective date of discharge.

3. A claimant who files a claim for benefits before the effective date of discharge should be questioned regarding his or her availability for work on the two days in question, since such claimant appears to be unwilling to work those days.

 

A-750-1916

Index No. 920 A-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 13, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Educational Institutions

A.B. No. 294,552

ACADEMIC YEAR – MULTIPLE TERMS

When an educational institution’s academic year is comprised of multiple terms, each period between successive terms is a period between regular academic terms within the meaning of Section 590.10.

FINDINGS OF FACT: The claimant was employed by the New York City Board of Education as a teacher in a special educational program having two parts: Adult Basic Education and Welfare Education Program (W.E.P). The entire program is unique and flexible and has been structured to meet the needs of the community. The Board of Education established a program calendar for each fiscal year which provides for a "201 Day Instructional Year," to conform to requirements of the State Education Department that 201 days of instruction be offered. The Board of Education adjusted the program calendar so as to meet that requirement. Other than days when school was closed for civic or religious observances, the calendar for the fiscal year beginning July 1, 1978 provided for breaks in instruction from July 1 through July 9, 1978, from August 12 through September 10, 1978, from December 16, 1978 through January 1, 1979, and from April 12 through April 22, 1979.

The claimant has been employed as a teacher by the program since 1967. She was paid an hourly wage and was assigned to teach 15 hours per week. In June 1978, claimant was notified by the program director that her reassignment to a teaching position for the 1979 fiscal year was confirmed and that classes for the year would begin on July 10,1978. The notice concluded with a statement that continuation of employment for the balance of the fiscal year was dependent upon funding and satisfactory student attendance. Claimant also received a calendar for the year.

OPINION: Section 590.10 of the Labor Law applies to instructional employees of an educational institution during a period between successive academic years or terms. The initial determination herein applies to the four extended interruptions in the 201 day calendar required for this program. The Board, therefore, will resolve whether each of these interruptions constitutes a period between an academic year or term within the meaning of the statute and, if so, whether the claimant has a reasonable assurance of employment in the next academic year or term.

Although its program is set up to meet the interests, availability and lifestyle of its adult learners, the Board of Education established a program calendar for the fiscal year. The calendar contains four extended interruptions in the instructions given by the claimant. In establishing this calendar, the Board of Education has defined the academic year and the four terms of the program. Accordingly, we conclude that each such extended interruption constitutes a period between academic terms within the meaning of the statute.

The evidence establishes that the claimant worked in an instructional capacity for an educational institution during the 1978 fiscal year. In June 1978, the claimant was notified that her reassignment to a teaching position for the 1979 fiscal year was confirmed. Notwithstanding that it did not guarantee re-employment because of factors such as budget, enrollment and registration, nevertheless, considering all of the facts, including the work history of the claimant since 1967, we conclude that she had a reasonable assurance of re-employment. Since claimant also received a calendar for the 1979 fiscal year, we conclude that she had a reasonable assurance of re-employment. Since claimant also received a calendar for the 1979 fiscal year, we conclude that she had a reasonable assurance of re-employment in the term following each of the extended interruptions. Accordingly, the weeks of employment and remuneration of the claimant with the educational institution are to be disregarded, as provided in Section 590.10. The claimant is ineligible to receive benefits during each of the four periods in issue.

DECISION: The revised initial determination of the local office, pursuant to Section 590.10 of the Labor Law, is sustained.

The decision of the administrative law judge is modified accordingly and, as so modified, is affirmed.

COMMENTS

1. Section 590.10 provides that weeks of employment and remuneration earned while employed by an educational institution must be disregarded "during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms…" provided "there is a reasonable assurance that the claimant will perform, services…for both of such academic years or such terms:…" Therefore:
1. When a claimant has worked in one regularly scheduled term and has reasonable assurance of working in another such term, Section 590.10 applies even if the term in which (s)he will work is not the term immediately following the one in which (s)he last worked.
2. Such a claimant’s weeks and wages should be disregarded only during the periods between academic terms. They are to be used to establish benefit rights during any regularly scheduled term, including the terms (s)he is not employed.

 

A-750-1917 (Revised)

Index No. 1605 D-8
1605 F-8

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 2, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Effective date and termination
Voluntary Leaving or Refusal

A.B. 329,642

FAILURE TO RETURN FOLLOWING LAYOFF

Failure to return to work following a temporary layoff of definite duration is a voluntary separation from employment. The disqualification, if warranted, is effective the pre-established recall date.

FINDINGS OF FACT: Claimant worked for a firm in Yonkers as a school bus driver from September 8, 1980 through June 23, 1981 when the school year ended. She was then told to return to work on September 8, 1981, when the new school year was to start. Claimant did not return to the job on September 8, 1981.

After she was laid off she moved from Riverdale (Bronx County) to Suffolk County, where she filed an original claim for benefits on July 2, 1981. In her claim she stated that she was not working for her last employer because the job ended when school was over.

OPINION: The credible evidence establishes that claimant’s job as a school bus driver ended by layoff on June 23, 1981, at the end of the school year, and that there was no work for her between the date of her layoff or until school started again on September 8, 1981. Thus, she did not voluntarily leave her employment on June 23, 1981 and cannot be disqualified effective June 24, 1981 for voluntarily leaving her employment without good cause.

The initial determination herein was based on the fact that claimant had informed her employer that she was moving and would not be able to return to work in the fall. We have re-examined various Board decisions dealing with the issue herein and have found decisions which are contradictory. Accordingly, we have decided that we will no longer follow decisions such as A.B. 142,178 (1968) wherein the Board ruled that claimant’s disqualification for voluntary leaving of employment without good cause is effective the date on which she filed a claim in Puerto Rico, while on a temporary layoff from her job to which she was to return on a certain day. Our reconsideration of this subject is prompted by the decision of the Court in Matter of Wilner (78 AD 2d 563, rev’g A.B. 299,589-A) wherein the Court ruled that the filing of a claim while on leave of absence is not a voluntary leaving of employment without good cause.

Even prior to Wilner the Board had ruled that where a claimant was laid off indefinitely there was no reason for her disqualification for voluntary leaving of employment on any basis as of the day following the layoff and that her overt act in notifying the employer at the time of the layoff that she would not return cannot convert the layoff into a voluntary leaving of her employment as of that date (Appeal Board 208,326; 209,623-A).

While there is no basis for her disqualification at the time of layoff, claimant had a definite date to return to her employment and did not return to work on September 8, 1981, as directed. Her relocation from the Bronx to Suffolk County was a matter of personal preference and not for any compelling reason. Accordingly, we conclude that she voluntarily left her employment without good cause effective September 8, 1981. Claimant was entitled to all of the benefits she received until that date. While she was overpaid $75 in benefits thereafter, such overpayment is non-recoverable. Claimant made no false statement in connection with her claim for benefits. Her statement on July 2, 1981 as to the loss of her last job was true and correct. (See Matter of Valvo, appellate Division, Third Department decided December 4, 1981).

DECISION: The initial determination of the local office disqualifying the claimant from receiving benefits effective June 24, 1981 because she voluntarily left her employment without good cause is modified to be effective September 8, 1981 and, as so modified, is sustained.

The decision of the administrative law judge is modified accordingly.

COMMENTS

1. A temporary layoff with a definite date of recall does not sever the employer-employee relationship. Claimants not working due to a temporary layoff caused by lack of work, seasonal shutdown, mandatory job rotation, etc., are unemployed through no fault of their own for the duration of the layoff. By deliberately failing to return to work on the pre-established recall date, they voluntarily sever the employment relationship.
2. See A-750-2049
3. Claimants who request a leave of absence for non-compelling reasons stop working of their own volition, and are subject to disqualification effective the date the leave begins. The only exception to this principle occurs when a claimant who returns to work on the agreed upon date, and before filing for unemployment insurance benefits, is informed by the employer that the position is no longer available. In that case, the claimant’s lack of employment is not due to taking the leave of absence, but to the employer’s inability to continue the employment as agreed.
4. Claimants who fail to return to work following a disciplinary suspension are subject to two disqualifications: Misconduct (if warranted) effective the day after the last day of work, and voluntary leaving effective the pre-established return date.

 

A-750-1918

Index No. 920 C-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 30, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Educational Institution

A.B. 325, 166

REASONABLE ASSURANCE – PATTERN OF REHIRING

A history of regular rehiring by an educational institution does not, in itself, provide reasonable assurance of future employment when the claimant has been given no affirmative indication of rehire.

FINDINGS OF FACT: Claimant, an adjunct instructor, worked for the employer, a community college, from September 1972, until May 8,1981. Her employment came to an end when the Spring semester for 1981 was completed. Claimant has taught courses for the employer every semester since Fall of 1972, including summer sessions. She was not rehired to teach a summer class in 1981 because another instructor taught the course. Although the course that claimant taught since 1972 was offered in the prospective course schedule for the Fall of 1981, claimant was not notified verbally or in writing that she would be rehired in the Fall until the first day of classes for the Fall semester.

OPINION: The evidence now before the Board establishes that claimant did not receive reasonable assurance of employment in an instructional capacity until she was actually hired on the first day of classes for the Fall semester. Claimant’s history or re-employment since 1972, does not constitute reasonable assurance of continuing employment absent some affirmative act by the employer. The employer gave claimant no notification that she would be rehired until the first day of classes. Accordingly, we conclude that claimant did not receive reasonable assurance of re-employment pursuant to Section 590.10. Therefore, her wages and earnings for the base period should not be disregarded.

DECISION: The initial determination of the local office is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. An affirmative indication of rehire may be written or oral. It is not uncommon for an employee with a history of rehire to be given oral notification and thereafter a written notice.
2. See A-750-1919 for the exception to the rule in this case.

 

A-750-1919

Index 920 C-3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 30, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Education Institutions

A.B. 326,077

REASONABLE ASSURANCE – NOTIFICATION OF NON RE-APPOINTMENT

Where it is the employer’s established practice that employees return unless notified that their employment is not to be continued for the next academic year or term, reasonable assurance exists although no affirmative notification to return is given.

FINDINGS OF FACT: The claimant worked as a regularly appointed high school teacher in the New York City Public School system from February 2 until June 26, 1981, the end of the school year. He had previously worked in the New York City public school system as a regularly appointed teacher from 1969 until 1974 when he had resigned his position. His application to withdraw that resignation was approved and he was reinstated, effective February 2, 1981. At the end of the 1980-81 school year, the claimant did not receive any communication that he would not have a position in September at the beginning of the 1981-82 school year. It is the practice of the employer that appointed teachers return to teach in the next school year if they did not receive a layoff letter at the end of the previous school year. On June 29, 1981, the claimant filed an original claim for benefits. He indicated on his claim form that he expected to return to work for his last employer in August.

OPINION: The credible evidence establishes that there was a reasonable assurance that the claimant would have the opportunity to return to teach in the New York City school system during the 1981-82 school year. The employer’s practice is that, unless an appointed teacher receives a layoff letter at the end of a school year, he is to return to teach in the following school year. Since the claimant did not receive such a letter, there was reasonable assurance of his re-employment in the next school year. Accordingly, we conclude that claimant was not eligible to receive benefits pursuant to Section 590.10 of the Law. Since the school year ended June 26, 1981, the initial determination is effective on the following Monday, June 29, 1981.

DECISION: The initial determination of the local office is modified, to be effective June 29, 1981 and, as so modified is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. This rule also applies to teachers (tenured) whose employment is guaranteed, or where a collective bargaining agreement or individual contract requires notification of non-reappointment.
2. When there is no tenure, established practice or written contract, the rule in A-750-1918 prevails.

 

A-750-1920

Index No. 920 A-5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 5, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Educational Institutions

A.B. 331,545A

SECTION 590.10 EFFECTIVE DATE

The provisions of Section 590.10 are effective the first Monday after the end of the academic year or term or the first Monday after the giving of reasonable assurance, whichever comes later. Section 590.10 no longer applies as of the first day of the next academic year or term.

FINDINGS OF FACT: The claimant was employed as a full-time temporary teacher by a school district during the 1980-81 school year. The claimant had not worked for the school district prior to that time. On June 1, 1981, the school district informed the claimant that it could not offer her a position for the next year. The claimant last worked on June 19, 1981 when the school year ended. She filed an original claim for benefits on June 22, 1981 wherein she indicated that she was no longer working because the faculty member whom she had replaced was returning.

On June 20, 1981, the school district sent a letter to the claimant, advising that it would place her name on a preferred list of substitute teachers for the 1981-82 school year. The claimant was requested to indicate whether she would be available to accept substitute work beginning September 10, 1981 and whether she wished to be retained on the active substitute teaching list. By letter dated July 7, 1981, the claimant informed the school district that she was looking for full-time employment for the next school year but, in case she was not successful, she was returning a completed substitute teacher data sheet so that she could be considered for such employment.

OPINION: The credible evidence establishes that the claimant had worked in an instructional capacity for the employer school district and was notified that her name was being placed on the preferred substitute teaching list for the next school year. The letter suggests that the district uses such a list in hiring substitute school teachers, when a need occurs. We have previously held that the inclusion of a teacher’s name on the list from which substitutes are called to teach constitutes a reasonable assurance of employment in an instructional capacity. Accordingly, we conclude that the claimant had such reasonable assurance and was ineligible to receive benefits, pursuant to the provisions of Section 590.10 of the Law.

In the application submitted on behalf of the Industrial Commissioner, the Board was requested to write a definitive decision as to the determination of the effective date of an initial determination issued pursuant to Section 590.10 of the Law. The Industrial Commissioner proposes that the correct effective date of claimant’s ineligibility in this case is Monday, June 29, 1981, rather than July 1, 1981, which was stated in the initial determination of the local office, or July 6, 1981, the date adopted by the administrative law judge and by the Board in its prior decision.

Section 590.10 of the Law provides, in part:

"If a claimant was employed in an instructional, research, or principal administrative capacity by an institution of education, the following shall apply to any week commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms when the contract provides therefore instead, provided the claimant has a contract to perform, or there is a reasonable assurance that the claimant will perform, services in such capacity for any such institution or institutions for both of such academic years or such terms…" (emphasis supplied)

We read the statute to impose two pre-conditions to its application. The first pre-condition is that the claimant have a contract or that there be a reasonable assurance of claimant’s employment as a teacher during the next year or term. The second pre-condition is that the period of any ineligibility occur "during the period between" two academic years or terms. The statute provides that such ineligibility is applicable "to any week commencing" during the period between terms. In this state, "week" is statutorily defined as the seven consecutive days beginning with Monday (Labor Law, Section 519). Thus, in our view, Section 590.10 of the Law should be made effective as of the Monday which follows the date on which both pre-conditions have been satisfied. In the event that the pre-conditions are met on a Monday, that will be the effective date. In this case, the school year ended on June 19, 1981. The reasonable assurance was created by the notice dated Tuesday, June 30, 1981. The first Monday after both of those dates is July 6, 1981. Accordingly, that is the effective date of the claimant’s ineligibility which continues between the academic years or terms. When the school reopens in the Fall, the claimant becomes eligible for unemployment insurance benefits, provided she has complied with the other provisions of the Law (see, for example, Appeal Board 317,196).

The Industrial Commissioner’s application suggests that our interpretation may not be in conformity with the Federal Unemployment Tax Act. Our reading of the Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976 (P.L. 94-566) leads us to believe that our view is in conformity with federal requirements. In the question and answer supplements to that publication, the Federal Department of Labor acknowledges that state definitions of "week" may vary. In Supplement 5, Question 1, when dealing with the application of these provisions during vacation periods, the U.S. Department of Labor acknowledges that for some vacations, claimants may be eligible for benefits at the beginning of the vacation, while being found subject to the provisions of the statute during the latter part of the period, simply because of the definition of "week commencing". Furthermore, in Supplement 1, Question 6, the federal interpretations seems to coincide with our interpretation of pre-conditions that the period be "between terms" and that the reasonable assurance have arisen before the claimant be ruled ineligible to receive benefits. Since we find no basis in the federal commentaries or elsewhere to support the current position of the Industrial Commissioner that the claimant must be ruled ineligible effective the Monday prior to the occurrence of the two pre-conditions, we reject this contention.

DECISION: The decision of the Board filed November 27, 1981 (A.B. 326,402) is hereby rescinded.

The initial determination of the local office is modified to be effective July 6, 1981 and, as so modified, is sustained.

The decision of the administrative law judge is affirmed.

COMMENTS

1. A claimant who receives reasonable assurance before the end of the academic year or term is ineligible effective the first Monday after the term ends.
2. A claimant who receives reasonable assurance on a Monday after the end of the academic year or term is ineligible effective the date such assurance is received.
3. A claimant who receives reasonable assurance after the end of the academic year or term on any day other than Monday is ineligible effective the Monday after such assurance is received.
4. The principles establishing the effective dates of ineligibility under Section 590.10 also apply to claimants subject to the provisions of Section 590.11 between successive academic years or terms and during an established and customary vacation period or holiday recess.
5. Claimants subject to the provisions of Section 590.10 or Section 590.11 are only ineligible for benefits based on employment with educational institutions. They may be able to establish entitlement based on other base year employment.

 

A-750-1921

Index No. 920 B-4

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 6, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Education Institutions

A.B. No. 326,031

NON-PROFESSIONAL EMPLOYMENT – CHANGE IN JOBS

A change in job title or duties from one school year to the next does not exempt a claimant from the provisions of Section 590.11 if both jobs meet the criteria set forth in that section of the Law.

FINDINGS OF FACT: Claimant was employed by a school district for over 10 years as a bus driver-mechanic. She is a member of a union in contractual relations with the employer. While school was in session claimant usually worked five hours a day as a driver and three hours a day as a mechanic. When school was not in session, including the summer, she worked as a full-time mechanic.

By letter dated April 15, 1981, the employer notified her that effective at the end of the school term her position as a driver mechanic was terminated, but that she was still being employed as a driver for the 1981-82 school year. The change in jobs will result in a decrease in salary from over $12,000 a year to about $7,000. Claimant has subsequently expressed her intention to return to work as a driver.

OPINION: The credible evidence establishes that claimant worked in a non-instructional capacity for a school district during the 1980-81 school year and was given a non-instructional assignment for the 1981-82 school year, which she accepted. Thus claimant has a contract to perform non-instructional services during the next academic year. In such circumstances, the Court of Appeals has stated: "…what is required is to establish that an employee of one academic year will be continued in employment by the educational institution in the following academic year." (Matter of LaMountain, 51 NY 2d 318, at 331).

Although claimant’s specific job title was changed and her salary was lowered appreciably, this does not affect the result because her past and future employment was an will be non-instructional. The Board has previously held that under Section 590.10 of the Law, which has similar language with respect continuing services in such capacity as the previous academic year or term, there is no requirement that the employment in the next year be equivalent to that in the prior year, so long as it is instructional in both years. (Appeal Board 281,740 and 298,564). We conclude that the same result is required under Section 590.11 with respect to non-instructional employment and that claimant is ineligible to receive benefits during the summer recess.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. The provision of Section 590.11 becomes operative when a claimant has worked "in other than an instructional, research or principal administrative capacity for an educational institution which is not an institution of higher education" and will do so in the following academic year or term
2. Thus, a claimant who worked as an office clerk in an elementary school and who has a contract of continuing employment in a high school as a cafeteria aide is subject to the provisions of Section 590.11.
3. This rule, and the decision on which it is based, is consistent with that reported at Index 920 B-3 (A-750-1879; A.B. 279,214) regarding claimants subject to Section 590.10.

 

A-750-1924

Index No. 1460 A-12

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 14, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Payments Without Work

A.B. 331,000

VACATION PERIOD: ADVANCE PAYMENT

A claimant is ineligible for benefits during a properly designated vacation period even though complete payment for such period is made in advance and no additional compensation will be received at the time of the vacation period.

FINDINGS OF FACT: Claimant, a factory worker, has been employed by the employer herein for approximately five years. In January of 1981, claimant was advised by his employer that he would be laid off for two weeks commencing the week of January 5, 1981, and that he would be on call during the period of the layoff. Claimant was entitled to two weeks vacation. He then requested and received an advance payment of his entire vacation pay for the year. Claimant subsequently was recalled and worked for three days during the week of January 5, and four days during the week of January 12,1981. He was paid for this seven days of work, apart from the advanced vacation pay. Claimant then resumed work regularly until November 22, 1981 when the employer had a general shutdown of the plant. Prior to the said shutdown, claimant did not request any particular vacation time from his employer. On November 19, 1981 the employer posted a notice that the entire plan would shutdown on November 22, and would reopen on November 30, 1981; that those employees who have vacation remaining will take the shutdown week as one week’s vacation.

The claimant filed his additional claim for benefits effective November 23, 1981.

OPINION: Section 591.3(b) provides:

The term vacation "period", as used in this sub-division, means the time designated for vacation purposes in accordance with the collective bargaining agreement or the employment contract or by the employer and the claimant, his union or his representative.

Sub-section (c) provides: "A paid vacation period or a paid holiday is a vacation period or a holiday for which a claimant is given a payment or allowance not later than 30 days thereafter, directly by his employer…even if such payment or allowance be deemed to be remuneration for prior services rendered as an accrued contractual right, and irrespective of whether the employment has or has not been terminated."

The credible evidence establishes that claimant received an advance of his entire vacation pay in January 1981, long prior to the designation of a vacation period by the employer.

We reject claimant’s contention that he had exhausted his vacation time before November 23, 1981, since he did not request any particular vacation period. He merely took his vacation money before the vacation occurred. These facts mandate that no unemployment insurance benefits shall be payable during the vacation period which was designated, in advance thereof, on November 19, 1981.

DECISION: The initial determination of the local office is sustained. The decision of the administrative law judge is reversed.

COMMENTS

1. In the present case, the payment of vacation pay was made eleven months before the designated vacation period at the claimant’s request. However, the result would be the same even if the advance payment was initiated by the employer.
2. For a more complete discussion of the effect of paid vacation periods upon eligibility for benefits, refer to Special Bulletin A-710-10 (Revised).

 

A-750-1925

Index No. 915 A-5

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 1, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Reduction Due to Pension

A.B. 332,798A

LUMP SUM PAYMENT

A claimant who, upon separation from employment for reasons other than retirement, has the option of accepting a lump sum payment representing accrued pension contributions or a periodic payment effective at a much later date, is not subject to the provisions of Section 600.7.

FINDINGS OF FACT: Claimant was employed as a director and general manager of a public utility from April 19, 1971 until January 30, 1981, when his job was eliminated and he was discharged. He was then 50 years of age. He filed an original claim effective February 2, 1981 and was found eligible for benefits, at the rate of $125. He received $1874 in benefits through May 24, 1981.

On February 13,1981 claimant filed a benefits statement pursuant to the employer’s Pension and Benefits Plan as a terminating vested employee. Since his age plus service equaled less than 75 at termination, he was eligible for a pension on attaining age 65 (in 1996); a reduced pension as of July 1, 1995; or a "cash-out" in an immediate lump sum payment. He elected to take a "cash-out" of his vested accrued benefit and was paid $27,015.49 on March 10, 1981. The employer was the sole contributor to the plan.

OPINION: We have reopened and reconsidered our decision of February 16, 1982 to eliminate any confusion that it may cause.

The evidence establishes that the claimant received a lump sum payment of the benefits that had accrued to him under the employer’s pension and benefit plan. He was eligible for such benefits upon separation from his employment, when the employer abolished his job. He was not then eligible for a pension or a retirement payment. Since this claimant received neither a pension or a retirement payment, we find no basis for the reduction of his benefits under Section 600.7 of the Law. He was not overpaid.

DECISION: The initial determinations of the local office are overruled.

The decision of the administrative law judge is affirmed.

COMMENTS

1. The lump sum payment is not a pension unless the claimant has the option to receive a periodic payment effective the same date as the lump sum.
2. In the present case the claimant’s option was a lump sum upon separation or a periodic payment to start at a later date. Thus, he is not receiving a pension, but has exercised an option to receive a lump sum payment from the pension fund in return for waiving all pension rights.
3. The phrase "cash-out" is a frequent designation for such lump sum payment.
4. In all situations involving lump sum payments, an evaluation of the plan’s provisions is necessary to determine what options were available to the claimant. If the local office requires assistance in interpreting a plan’s provisions or determining whether a reduction is to be made, all pertinent documents should be forwarded to the Adjudication Services Office, Room 3209, 345 Hudson Street, New York, N.Y. 10014, with a request for advice and determination.

 

A-750-1926

Index No. 1460 A-13

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 8, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Payment Without Work

A.B. 328,242

VACATION PERIOD: INTERVENING EMPLOYMENT

When an employer’s regulations or by-laws contain a formula for denoting the period to which accumulated vacation time is to be allocated, such period constitutes a designated vacation period. A claimant is ineligible for benefits during such a period although it occurs after the employment relationship has ended, even if the claimant had worked for another employer in the interim.

FINDINGS OF FACT: The claimant was employed in various capacities by a school district for approximately seven years. She worked during the 1980-81 school year. She resigned her employment effective April 15, 1981. The collective bargaining agreement in effect between the claimant’s union and her employer sets forth a formula to determine vacation pay during the summer. Since the claimant did not work a full school year, the employer utilized (sic) another formula, set forth in its by-laws to determine claimant’s vacation. The collective bargaining agreement provides that the employer’s by-laws shall continue in full force and effect. On June 19, 1981, the claimant received $2,939.98 as her total accrued vacation pay for the period beginning the day after the close of school, June 27, 1981, and continuing for 43 days through August 9, 1981.

Following her work for the school, claimant had other employment which ended under non-disqualifying conditions. She filed an original claim for benefits on June 18, 1981.

OPINION: The credible evidence establishes that the formula, used by the employer to determine the claimant’s vacation period as June 27 through August 9, 1981, was in the by-laws and was incorporated, by references into the collective bargaining agreement. Under these circumstances, we find that period constitutes a designated paid vacation period. Since the claimant received this vacation pay prior to the end of the vacation period we conclude that no benefits shall be payable to the claimant for any day during this paid vacation period from June 27 through August 9, 1981. (Labor Law Section 591.3).

DECISION: The revised initial determination of the local office is sustained. The decision of the administrative law judge, insofar as appealed from, is reversed.

COMMENTS

1. The effect of the law as it relates to a designated paid vacation period or holiday is the same "irrespective of whether the employment has or has not been terminated". [591.3(c)].
2. In the present case the claimant’s vacation was designated pursuant to the employer’s by-laws. Between her termination date and the designated vacation period, she had employment elsewhere. Notwithstanding such subsequent employment, the designated vacation period results in claimant’s ineligibility for the period.
3. For a vacation period to be considered designated within the meaning of Section 591.3(b) of the Law, the following is required:
1. The period is designated for vacation purposes in the collective bargaining agreement or employment contract, or
2. The vacation period is designated by the employer and the claimant or his union or other representative, or
3. If there is no union agreement of employment contract, or if such agreement or contract does not fix the vacation period, the employer has designated the time in writing and announced it to the employees in advance.
4. In the present case the employer’s by-laws contained a formula for allocation of accumulated vacation credits. In essence the Appeal Board’s holding is that such allocation is a designation in advance and in writing [3(c) above].
5. For a complete discussion of the effect of paid vacation periods upon eligibility for benefits, refer to Special Bulletin A-710-10 (Revised).

 

A-750-1927

Index No. 1190-4

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 2, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Other Offenses

A.B. 334,205

DISCHARGE WITHOUT WARNING

A claimant who deliberately engages in conduct known to be detrimental to the employer’s interests is subject to disqualification for misconduct even though discharged without prior warning.

FINDINGS OF FACT: The claimant was employed as a vinyl molder by a manufacturer of such products for about five months until February 26, 1982. His job duties consisted of producing molded vinyl sheets for two to three pieces of luggage a day. The claimant did not have any problems in maintaining this rate of production. During the course of his employment, he asked for a raise but did not receive it. During the last several weeks of his employment, he deliberately produced less than one piece of vinyl per day, because he did not receive a raise. As a result of his deliberate slowdown of his production rate, he was discharged.

OPINION: The claimant was discharged for his deliberate slowing down of his production because of dissatisfaction with his wage rate. He was not promised any wage increase. His actions were deliberate and detrimental (sic) to the employer’s interest. Thus they constitute misconduct. In view of the aforesaid, we do not agree with the judge’s conclusion that any warning as to this type of conduct was necessary.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. In the present case the claimant knew that slowing down production was injurious to the employer’s interest, but did so as a protest against being denied a raise. Thus, no warning was necessary. The claimant’s actions were deliberate, warranting disqualification from benefits for misconduct.
2. Local office must distinguish those claimants who deliberately or knowingly act against the employer’s interest from those who inadvertently violate a rule or inadvertently fail to meet the employer’s requirements. Actions resulting from poor judgment, incompetence or carelessness do not constitute misconduct.

 

A-750-1928

Index No. 1180-6

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 29, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Union Relations

A.B. 32,827 – 332,831

PARTICIPATION IN A STRIKE

When a strike is not prohibited by law, the failure of a claimants’ union to comply with a statutory requirement to give advance notice before calling a strike does not subject the claimant to disqualification for misconduct.

FINDINGS OF FACT: The claimants were employed as dental assistants or receptionists for various periods until August 26, 1981 by a private corporation organized to operate for profit, dental centers at various locations. The claimants were members of a union, which sought recognition as their collective bargaining agent after the employer refused this union recognition, it called a strike effective August 27, 1981. All of the employees who went on strike were replaced. On September 2, 1981, the striking employees were notified that they were discharged for engaging in an unlawful strike, because ten days’ written notice of the intention to strike was not given to the employer and the Federal Mediation and Conciliation Services. The employer filed a complaint with the National Labor Relations Board (NLRB) contending that it is a health care institution within the meaning of Federal statute and that said statute required that it receive notice of the intention to strike. The union entered into a stipulation before the NLRB to give ten days’ notice before engaging in strike activities and then gave such notice.

The claimants filed for unemployment insurance benefits after the expiration of the seven week strike suspension period and were ruled eligible for benefits.

OPINION: We do not agree with the statement of the hearing officer that claimants’ participation in an industrial controversy, regardless of its merits or legality, does not constitute misconduct in connection with employment. The Courts have ruled that a wildcat strike, in violation of a no-strike provision in the collective bargaining agreement is not misconduct (Matter of Heitzenrater, 19 NY 2d 1), and that a strike in violation of a State statute prohibiting employees of a non-profit hospital from striking constitutes misconduct (Matter of Felix Rodriguez, 32 NY 2d 577).

The issue herein is whether the failure to give ten days’ notice of the intention to strike renders the strike "illegal" within the meaning of the Rodriguez doctrine. We do not believe that it does. Assuming that the employer is an institution which must receive such notice under the Federal statute, it is clear that said statute does not prohibit a strike against the institution. Accordingly, we conclude that the claimants’ striking without given the notice is not misconduct in connection with their employment.

DECISION: The initial determinations of the local offices are sustained.

The employer’s objection is overruled.

The decision of the administrative law judge is affirmed.

COMMENTS

1. In a series of cases the Court of appeals held that "mere participation in a strike, which may be in breach of a no-strike clause, or otherwise impermissible or proscribed does not constitute ‘misconduct’" within the meaning of Section 593.3 of the Labor Law (Matter of Heitzenrater, 19 NY 2d 1), but subsequently held that participation in a strike "expressly and absolutely prohibited" by law is misconduct, (Matter of Rodriguez, 32 NY 2d 577).
2. In the present case the claimants were not proscribed from striking, although the law imposed a condition to be met before they could engage in strike activities. Failure to comply with this requirement does not render the strike itself unlawful; therefore, no misconduct disqualification may be imposed.

 

A-750-1929

Index No. 1520-4

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 30, 1982

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION AND RECOVERY OF
OVERPAYMENTS
Employment and Earnings

Matter of Valvo et. al. 57 NY 2^nd 116

RECOVERABILITY: False statements

An overpayment resulting from a false statement of fact, even if made unintentionally, is recoverable, but one resulting solely from an erroneous conclusion of law is not. Thus, if a claimant’s activities in "employment" are so minimal that a claimant would not reasonably be expected to realize they constitute work, a certification that "I did not work in employment or self-employment" is not a factually false statement; rather, it is a false legal conclusion and alone is insufficient to establish recoverability.

DECISION

In these three cases recipients of unemployment insurance failed to report that they had performed occasional services of a business nature for friends or family members during periods of claimed unemployment. The Agency found that these services constituted employment, that claimants had therefore made false statements of unemployment and that the statements were wilfully made. In each case a penalty was imposed and the claimants were also directed to repay the benefits received.

On three separate appeals the Appellate Division, Third Department, modified by annulling the penalty and repayment provisions after concluding that proof of the element of wilfullness was lacking. The Appellate Division also rejected the agency’s contention that a portion of the benefits are recoverable pursuant to Labor Law §597(4) on the theory that a claimant had made a false statement unintentionally. The agency appeals on the basis of the modification. 1/

1/ Disposition of these appeals has been expedited pursuant to 22 NYCRR 500.2(b).

VALVO CASE

Claimant, Grace Valvo, is employed by Tambe Oil, which delivers heating oil to homes and a few businesses during the winter months. From Late Spring to early Fall it is dormant. The corporation is owned and operated by Anthony Tambe, the father-in-law of one of the claimant’s close friends. Mr. Tambe was formerly employed as a truck driver. He went into business for himself in September 1976. The business presently consists of a truck and a garage with a small office in the garage. The owner personally delivers the oil, and in the beginning also attended to the clerical matters. However, he had so much difficulty balancing his checking account that his credit rating was soon impaired and he was on the verge of going out of business. When he mentioned this to his daughter in claimant’s presence, claimant volunteered to help. From October 1976 to November 1977 claimant wrote his checks and balanced the checkbook as a favor, without compensation. During this period she was receiving unemployment benefits.

In November 1977 Mr. Tambe hired claimant as a secretary to write checks, send out the bills, record all financial transactions and answer the phone at the office. During the summer months in 1978 and 1979 she was officially laid off and collected unemployment benefits. However, if a bill had to be paid for monthly utilities or outstanding loans Mr. Tambe would call claimant and ask her to write a check. He would then pick it up at her home, sign it and mail it. Claimant received no compensation for these services.

In June 1980 the agency informed claimant that her uncompensated check writing activities constituted employment under the Labor Law, 2/ that she had therefore made false statements when she claimed to be unemployed during the off-season, and also during the period she wrote the company’s checks on a volunteer basis before she was hired in November 1977. It further concluded that the statement had been wilfully made and that claimant should therefore be penalized by forfeiting 664 days of future eligibility and must also repay all benefits received in the amount of $6,019.

2/ Labor Law § 522 states: "’Total unemployment’ means the total lack of any employment on any day. The term employment as used in this section means any employment including that not defined in this title."

Claimant requested a hearing which was held in July 1980. After the hearing the administrative law judge concluded that the initial determination assessing a penalty and requiring repayment of benefits should be set aside primarily because there was no evidence of fraud or wilful misrepresentation on claimant’s part. He stated:

"While claimant did perform check writing functions for this employer during the period prior to the time she went on the payroll in November of 1977 and also during the off season in 1978, claimant could reasonably have believed that there was no employer/employee relationship since she was not reporting to the employer’s establishment during the periods when she was writing such checks and she was performing no other services. This is especially the case in the period prior to her going on the payroll in November of 1977. With respect to the off season of 1978, claimant’s activities were so substantially different from her regular work assignments that even here she could reasonably have believed that she was not performing as an employee…. In addition, she was clearly not self-employed and since the amount of time required to write the checks was minimal the activity or writing the checks as such did not establish a lack of total unemployment."

The Appeal Board reversed the decision of the administrative law judge and reinstated the initial determination. The Board summarily concluded that claimant’s weekly certifications of unemployment "were false and were known by her to be false when made" and therefore constituted wilful misrepresentations. The Board also found that claimant’s statements were false in fact because "claimant performed substantial services for her employer of a similar nature to those she performed when concededly in employment".

Claimant appealed to the Appellate Division to have the Board’s determination set aside. In support of its determination the agency claimed that there was substantial evidence of wilfullness and that it was therefore authorized to impose the penalty and require repayment pursuant to Labor Law §574. 3/ In the alternative the agency urged that pursuant to Labor Law §597, subd 3 and 4, it could recover a portion of the benefits (i.e. those paid during the year preceding discovery of the overpayment) whenever the claimant has made a false statement of unemployment even unintentionally. 4/

3/ The relevant portion of Labor Law §594 states: "A claimant who has wilfully made a false statement or representation to obtain any benefit…shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense…. A claimant shall refund all money received because of such false statement or representation made by him.

4/ The relevant portions of Labor Law §597 state:

"(3) Limitation on review of determinations. Any determination regarding a benefit claim may in the absence of fraud or wilful misrepresentation, be reviewed only within one year from the date it is issued because of new or corrected information…

"(4) Effect of review. Whenever a new determination in accordance with the preceding subdivision or a decision by a referee, the appeal board or a court results in a decrease or denial of benefits previously allowed, such new determination or decision…shall not affect the right to any benefits already paid…provided they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits."

The Appellate Division unanimously modified by reversing that portion of the determination which imposed the penalty and ordered repayment of benefits. The court accepted the Board’s determination that claimant’s check writing activities constituted employment but found nothing in the record to support the Board’s determination of wilfulness. With respect to the Board’s right to recover a portion of the benefits pursuant to Labor Law §597 subd. 3 and 4, on the theory that she made a false statement the court held that "the term ‘false statement’ in the statute refers to a false factual statement" and not to an erroneous conclusion of law. In this case the court found that "the requirement that claimant weekly ‘report and certify as to his employment’ [12 NYCRR 473.2(a)] obligated claimant to draw a legal conclusion – whether her uncompensated check writing activities constituted employment within the meaning of the labor Law – rather than provide factual data". The court distinguished our recent decision in Matter of Maguire (Ross) (54 NY 2d 965) on the ground that the petitioner’s activities in that case obviously constituted employment.

LOLL CASE

In March 1978, claimant Debra Loll, was laid off from her job as a clerk cashier at Stop & Go in Elmira. She was rehired in September of that year. In the interim she collected unemployment benefits. At an unemployment interview on July 7, 1978 she had stated that she occasionally helped out at her father’s drug store, but received no compensation for these services. Toward the end of the month the agency sent her a letter warning her that any services performed for her father at his store would constitute employment even if she did not receive any compensation. On August 8, the manager of the unemployment office who was a regular customer at the drug store saw the claimant behind the counter.

In October the agency made an initial determination that petitioner was ineligible to receive benefits for two days out of each week during the period of claimed unemployment, representing the days she helped her family at the drug store. Her weekly certifications of unemployment were characterized as false and wilful misrepresentations. As a result claimant was penalized 96 effective days and was directed to repay $564 representing the benefits she received on the days she was employed as her father’s drug store.

Claimant demanded a hearing which was held in February of 1979. At the hearing she testified that she went to her father’s store nearly every days during the period she claimed unemployment, so that she could borrow his car or have a family member baby sit for her three year old son while she looked for a job. On occasion she would take care of a customer or deliver a prescription if her father or brother were busy or wanted to take a break. She usually only helped out a for a few minutes one or two days a week during the evening or on a Saturday and on rare occasions worked for a few hours. These activities ceased after being warned of the consequences in July. However, she continued her daytime visits and during one of them might have assisted her family at the store for a few minutes because she had done so automatically throughout her life. She received no compensation for the help she provided at the store.

At the conclusion of the hearing the administrative law judge held that claimant’s activities at her father’s store constituted employment. He also stated that "the record is clear that the claimant was not candid with the local office and did not advise them of her activities". Thus, he sustained the initial determinations. The Appeal Board affirmed adopting both the findings of fact and opinion of the administrative law judge.

The case was heard by the Appellate Division in November 1980, a year before its decision in the Valvo case. In a brief memorandum the court held that the record supported the Board’s finding that claimant had made false statements but not its finding of wilfulness. The court modified by reversing so much of the agency’s determination as assessed a penalty of 96 effective days.

At the time of its decision in Valvo the Appellate Division granted re-argument in this case. In another brief memorandum, relying upon Valvo, the Court further modified by reversing so much of the agency’s determination as directed claimant to repay benefits received.

POLVINO CASE

From 1974 to 1977 claimant Josephine Polvino was intermittently employed by a small construction company owned and operated by her two sons, one of whom resides at home with his parents. The company does general construction work but specializes in paving driveways in the summer and removing snow in the winter. The company’s office is located in a trailer on property where the equipment is stored. However, company business is frequently conducted at claimant’s residence.

Claimant performed clerical duties at the office of a general and unskilled nature including answering phones, writing checks and keeping some company records. She was laid off and collected unemployment benefits on several occasions: March 4 to July 14, 1974; December 23, 1974 to June 13, 1976 and August 8, 1977 to May 14, 1978. According to claimant and her sons this was due to a lack of work. However during these periods she continued on occasion to answer phone calls from customers, write checks and keep some records at her residence without compensation.

In March of 1979 the agency sent claimant a notice of initial determination stating that she had been found to be ineligible for unemployment benefits during the periods of claimed unemployment listed above because she had continued to perform "services for Polvino Construction Corporation". She was directed to make repayment in the amount of $8,834. The agency also imposed a penalty of 208 effective days for wilful misrepresentation "because you failed to divulge your association and activities for Polvino Construction Company".

Claimant demanded a hearing at the conclusion of which the administrative law judge sustained the initial determination. He noted that claimant had been employed by her sons’ company where the services she performed were somewhat vague. He stated:

"In a situation where a claimant is employed by a closely held corporation whose principal officers and shareholders are related to her, the closest scrutiny must be given to a claim for benefits. In the instant case the pattern of her claims over several years makes it appear obvious that the employer controlled her periods of employment. Because of the control exercised over the periods of her employment, the undersigned cannot accept claimant’s eligibility for benefits during these several periods when, by her own admission, claimant performed some services for the corporation."

That decision was in turn affirmed by the Appeal Board which adopted the findings of fact and opinion of the administrative law judge.

The Appellate Division modified the agency’s determination by reversing the penalty and repayment provisions. In its memorandum the court held that there was substantial evidence to support the Board’s determination that petitioner was unavailable for employment. The court also found no "reason for disturbing the Board’s determination that claimant was totally unemployed". The court then stated:

"We are of the opinion, however, that there is insufficient evidence to support the Board’s determination on the issue of wilful misrepresentation. Claimant’s activities did not obviously constitute employment as the situation was found to be in Matter of Maguire (Ross) [___NY 2^nd___(Oct. 27, 1981]). Although claimant may be found to have been employed in the technical sense of the Labor Law there is no evidence of wilfullness in her certifications to total unemployment on her weekly reports. Consequently, the imposition of a forfeiture of effective days and the recovery of overpayments pursuant to section 594 of the Labor Law are not warranted in the present case [see, Matter of Valvo (Ross), supra; Matter of Smalt (Ross) ___AD2d___ (June 11, 1981)]. In addition, under the circumstances presented herein, there may be no recovery of a portion of the benefits pursuant to Section 597 (subd. 4) of the Labor Law [see Matter of Valvo (Ross), supra]."

The order of the Appellate Division should be affirmed in the first case (Valvo) and reversed in the other two (Loll and Polvino).

Initially, we note that at this stage no one challenges the agency’s determination that the petitioners’ activities technically constitute employment within the meaning of the statute. The appeals are limited to the following issues: (1) did the petitioners make false statements when they stated that they were unemployed and (2) did they act wilfully. In addition the agency concedes that in order to sustain a finding of wilfulness the evidence must show that the petitioners knew that their actions constituted employment.

The problem is that the agency’s interpretation of the statute defining employment (Labor Law 522) although rational, does not reflect the common understanding of employment. As a result laymen, particularly unskilled laymen who undoubtedly represent the majority of claimants for unemployment benefits, may not realize that occasionally helping a friend or relative may constitute employment even though they are not paid for it. The agency claims that its information booklet provides a kind of constructive notice when it states: "You are considered employed on any day when you work – even an hour or less – in self-employment, or a freelance basis, or for someone else. It makes no difference whether…you get paid for that day". The agency, however, has omitted the next sentence, which states: "For example, work on a straight commission basis is employment even though you may not receive the commission until sometime later or make no sale at all". This gloss leaves the impression that the term employment includes activities that are generally perceived as employment regardless of the technicalities.

The agency is on firmer ground when it relies on the facts of the particular case. In the Polvino case, for instance, where the claimant worked for her sons, the evidence shows that she performed essentially the same limited services while allegedly unemployed as she did while allegedly employed. The only significant difference is that she received unemployment benefits instead of wages. In addition, as the agency notes, her periods of unemployment were never satisfactorily explained. It was appropriate for the agency to closely scrutinize this situation as it did, because of the possibility that the periods of employment and unemployment were manipulated in order to claim unemployment benefits. Under the circumstances the agency could conclude that if she understood that the services she performed for her sons constituted employment when she was on their payroll, she also realized that they constituted employment when she was technically laid off.

The Loll case presents a more sympathetic situation but nevertheless there is substantial evidence to sustain the agency’s finding that she acted wilfully. The evidence shows that she was warned that her services at her father’s drug store constituted employment. When, despite this warning, she was later observed behind the counter, the agency could reasonably infer that her activities throughout the period were not the result of ignorance of the law. Notably in this case she was not required to repay all benefits received but only those relating to the days on which she was actually working at the store.

In the Valvo case, on the other hand, there is nothing in the record from which it can be reasonably inferred that she realized that her writing of a few monthly checks during a long period of seasonal unemployment would constitute employment disqualifying her from all benefits throughout the entire period. Although she worked for the father-in-law of a close friend, there is no suggestion that her employment was not legitimate and the obvious seasonal nature of the business and genuine lack of work during the period of claimed unemployment is undisputed. Thus, the agency’s finding of wilfullness was arbitrary.

With respect to the agency’s alternative argument that claimant Valvo should be required to repay a portion of the benefits for making a false statement within the meaning of Labor Law §597 subd. 4, the Appellate Division correctly held that the statute only applies to false statements of fact and that petitioner’s certification of unemployment represented an error of law. This does not mean, as the agency suggests, that wilful misrepresentation is now required under this section and section 594 thus rendering one of the sections meaningless. It should be clear from the Appellate Division’s decision that section 597 permits recovery of benefits received within the past year when the claimant has made a false statement of fact even though unintended. However, when claimant has in good faith received benefits to which he or she was not entitled because of a mistake of law on the part of the claimant or the agency, none of the benefits may be recovered. This interpretation is required by the wording of the statute, and supported by its legislative history, which shows that it was designed to provide relief to claimants when an overpayment or erroneous payment of benefits resulted from an honest mistake, and to preclude all recovery when the claimant was not in any way responsible for the error (see e.g., Industrial Comm. Memorandum of April 9, 1942 on Assembly Int. No. 1804, Print No. 2455).

Accordingly, the order of the Appellate Division should be affirmed in Matter of Valvo, and reversed in Matter of Loll and Matter of Polvino. In the latter two cases the determination of the Appeal Board should be reinstated.

COMMENTS

1. Section 597.4 of the Unemployment Insurance Law provides that overpayments of benefits are not recoverable "provided they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits."

In its decision the court reiterated the principle that a factually false statement need not be wilful to establish recoverability. The court held, however, that a statement based on the general understanding of a word, although technically incorrect, is not a false statement of fact, but an erroneous conclusion of law. Such a statement may not serve as the basis for recoverability.

2. In determining whether a certification that "I did not work in employment or self-employment…"is factually false or merely a mistake of law, claims personnel must examine the circumstances under which it was made. Factors to consider include the nature of the claimant’s services and their relationship to the claimant’s prior employment, the claimant’s motive in performing the services, the claimant’s financial interest in performing the services, the expectation of future gain and the claimant’s awareness that the services may constitute employment, because of previous determinations of ineligibility, advice from local office personnel, etc.

In the present cases the court found that when a claimant performs essentially the same services while "unemployed" as while "employed" in a family business (Matter of Polvino) or has been advised that the services constitute employment (Matter of Loll), the certification to total unemployment is false in fact. However, when the claimant, while "unemployed," performs minimal services which differ significantly from those performed while "employed", and the claimant reasonably believes (s)he is unemployed, the certification is not factually false; rather it is an incorrect legal conclusion of the claimant’s employment status.

3. If a determination of recoverable overpayment based on a factually false statement is issued, the reason on the notice of determination must not only state what the false statement is but also must explain why it is false in fact.
4. To avoid overpayments or future disputes regarding factually false statements, claims examiners must prepare detailed and specific summaries of interview when interviewing claimants about their business activities. General statements (e.g. "I do no work", or "I am not employed") are insufficient because they may be erroneous conclusions of a legal status. Statements should reflect the claimant’s answers to the specific questions asked, (e.g. "I do not pick up, read or answer mail. I do not prepare or pay bills, sign checks, prepare tax returns or other business papers, or make any entries on business records…").
5. All advice given to a claimant, on any issue, should be recorded in the body of the statement, above the claimant’s signature.

 

A-750-1930

Index No. 865 B-3

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 16, 1983

INTERPRETATION SERVICE – BENEFIT CLAIMS
REGISTRATION REPORTING AND CERTIFICATION
Misinformation

MISINFORMATION FROM THE EMPLOYER

A claimant’s reliance on an employer’s representations that (s)he has not been "laid off" despite a cessation of work and, therefore is not eligible to file a claim for benefits, is an excusable reason for an inexperienced claimant’s failure to register.

MATTER OF MANIACE 88 A.D. 2d 1025

Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board, filed March 27, 1981, which determined that claimant was eligible to receive unemployment insurance benefits effective December 11, 1980. Claimant, a carpenter for a construction company, last worked on December 10, 1980, following which date, at his employer’s instructions, he telephoned every day to inquire whether his employer, whose business in the month preceding had become increasingly sluggish, had work for him. Each time he was informed that no work was available. On December 29, 1980, after claimant told his employer he was experiencing severe financial problems, the employer informed claimant that he was laid off, that he should apply for unemployment insurance benefits and state he had been laid off on December 10, the last day he actually worked. Claimant did so immediately, but because he had not filed his claim until December 29, the Industrial Commissioner declared him ineligible to receive benefits for the period from December 11 through December 28, 1980 [see 12 NYCRR 473.1(a), (h)]. The administrative law judge’s decision overruling the commissioner and concluding that claimant’s neglect to file was due to misinformation given him by his employer and, therefore, his failure to timely register for benefits was excusable, was concurred in by the Unemployment Insurance Appeal Board. "Whether or not good cause exists for a claimant'’ failure to comply with registration and reporting requirements is an issue of fact within the province of the board" [Matter of Condon (Levine), 51 A.D. 2d 1070, 1071]. Mistaken reliance on an employer’s misrepresentations may constitute good cause excusing failure to register for benefits in accordance with the commissioner’s regulations [Matter of Beck (Ross), 72 A.D. 2d 867]. Here, there was uncontradicted testimony that claimant, who had no prior experience with the unemployment insurance system was not simply relying upon his own impressions during the period in question, but instead was misled by his employer into believing he could not file before he was officially laid off and that until then he was ineligible for benefits. As there is substantial evidence to support the Board’s determination, an affirmance is required. Decision affirmed, without costs. Main, J.P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.

COMMENTS

1. The present decision is an exception to the longstanding rule that a claimant who fails to file a claim for benefits because of reliance on misinformation from sources other than the Department of Labor may not receive credit for the weeks (s)he failed to register.
2. The rule of this release is to be applied narrowly, and should not be extended to situations beyond that considered by the court.
3. If a claimant contends (s)he failed to register because of misinformation from the employer it is important to ascertain exactly what the claimant was told, and by whom, and to confront that individual with the claimant’s allegations.
4. In determining whether to excuse the failure to register, the local office should also inquire into such factors as the claimant’s awareness (s)he was unemployed, previous experience with unemployment insurance, attempts to verify the information with the local office, and reason for eventually filing the claim.

 

A-750-1931

Index No. 865 B-4

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 16, 1983

INTERPRETATION SERVICE – BENEFIT CLAIMS
REGISTRATION, REPORTING AND CERTIFICATION
Misinformation

A.B. 335,915

MISINFORMATION FROM EMPLOYER

A claimant who delays filing a claim for benefits following discharge because the employer indicated (s)he may not be eligible while receiving vacation and severance pay is not entitled to predated credit. It is incumbent upon the claimant to verify eligibility status with the local office.

FINDINGS OF FACT: The claimant, an engineer, lost his employment on April 2, 1982 under non-disqualifying conditions. He filed an original claim immediately following the loss of his employment because he was seeking new employment, and because his employer indicated that due to the payment of two weeks vacation pay and one weeks severance pay, he might not be immediately eligible for benefits. The claimant made no inquiry of the local office to ascertain whether he might be eligible for benefits.

OPINION: Claimant’s failure to timely register his claim cannot be excused. His testimony before the administrative law judge indicates that through his conversation with his employer, he was aware of his possible eligibility for benefits. It was incumbent upon him to verify his eligibility status with the local office. Accordingly, we conclude that claimant failed to comply with registration requirements.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. The decision in the present case is an affirmation of the principle that a claimant who, relying on misinformation from sources outside the Department of Labor, chooses not to register for benefits and allow the local office to determine eligibility may not receive credit for the weeks in which (s)he failed to register.
2. An exception to this principle is reported in A-750-1930 (Matter of Maniace 88 AD 2d 1025). The rule is not applicable in the present case because:
1. the claimant knew the employment relationship had ended, and
2. the claimant was aware of possible eligibility for benefits.

 

A-750-1932

Index No. 1605 A-8
1615-7
1705-3
1745-1

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 16, 1983

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING

DEFINITE DATE OF RETURN TO WORK

A claimant who waives job retention rights and accepts separation from employment pursuant to a collective bargaining agreement or written employer plan with no definite date to return to work voluntarily leaves employment without good cause. Separation for a "temporary period" requires an agreement between the employer and the claimant at time of separation as to the duration of the layoff.

Matter of Violanti, 89 A.D. 2d 727

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 1, 1982, which disqualified claimant from receiving benefits because she voluntarily left her employment without good cause. Claimant has been a tax service representative for the Internal Revenue Service for four years, working on a seasonal basis primarily during the peak January through April periods. On July 8, 1981, she volunteered to be furloughed under the terms of a union contract, and when she left, she was given no specific date of return. A recent amendment to section 593 [subd.1, par. (a)] of the Labor Law (L 1981, ch. 234, §1, eff. June 15, 1981), provides an exception to the disqualification for voluntary leaving of employment without good cause "if the claimant, pursuant to an option provided under a collective bargaining agreement or written employer plan which permits waiver of his right to retain the employment when there is a temporary layoff because of lack of work, has elected to be separated for a temporary period and the employer has consented thereto". The appeal board, in interpreting this statute in the instant case, required an agreement between employer and employee as to the duration of the temporary layoff. Claimant contests this interpretation. It is well settled that appellate courts must accept the board’s construction and application of terms in the Unemployment Insurance Law if that construction has a rational basis [Matter of Marsh (Catherwood), 23 NY 2d 235, 239; Matter of Newman (Catherwood), 24 AD 2d 1042]. The Board’s interpretation of section 593 [subd.1, par. (a)] of the Labor Law does have a rational basis. Although claimant argues that the requirement that a layoff be "for a temporary period and the employer has consented thereto" should be construed to mean either any non-permanent employee termination or any termination which, due to the employer’s past practices, impliedly is temporary, it is at least an equally reasonable construction of the statutory language to require an explicit agreement between the employer and the employee at the time of the layoff as to the length of the temporary separation. Both the Governor’s memorandum of approval and the Deputy Industrial Commissioner for Legal Affairs’ letter to the Governor’s counsel prior to approval stated that the amendment would be limited to situations where "the duration of the layoff is fixed by agreement". Additionally, in establishing guidelines to carry out this statute, the Industrial Commissioner, in Field Memorandum No. 4-81, interpreted the amendment to have six essential elements for applicability, the last being that "(t)he separation is for a temporary period whose length is agreed to by the employer and the claimant". Thus, the appeal board’s construction is supported by the language of the statute, documents reflecting its legislative history, and the interpretation given the statute by the agency responsible for its administration. Its construction is not irrational or unreasonable and should be upheld [Matter of Marsh (Catherwood), 13 NY 2d 235, 239, supra; see also, Matter of Howard v. Wyman, 28 NY 2d 434, 438]. Furthermore, substantial evidence in the record supports the Board’s determination that no agreement existed between claimant and her employer regarding the length of her furlough. True, claimant and the employer did testify at the hearing as to an unspoken understanding based on the employer’s past practice, that claimant would return in the fall or, at the least, by the beginning of January. However, at the time claimant stopped working, she clearly was not given any specific date for recall, and when the employer filled out an unemployment insurance form for claimant, he stated that no length of layoff was agreed to and that the length of her layoff was "indefinite". Decision affirmed, without costs. Main, J.P., Mikoll, Yesawich,Jr., Weiss and Levine, JJ., concur.

COMMENTS

1. Section 593.1(a) of the Labor Law as amended effective June 15, 1981 provides that…"voluntary separation from employment shall not in itself disqualify a claimant…if the claimant, pursuant to an option provided under a collective bargaining agreement or written employer plan which permits waiver of his right to retain the employment when there is a temporary layoff because of lack of work, has elected to be separated for a temporary period and the employer has consented thereto." (underscoring supplied)
2. In the present case the court upheld the Appeal Board’s finding that for a separation to be for a "temporary period" there must be an agreement between the claimant and the employer as to the duration of the separation. Without a definite date of recall, a separation is not for a "temporary period."
3. The present case dealt with only one of the conditions required for benefit eligibility under the "waiver of retention rights" amendment. All six conditions must be met before a voluntary leaving disqualification may be avoided. Those conditions, interpreted and set forth in Field Memorandum No. 4-81, are as follows:
1. There is a temporary layoff because of lack of work; and
2. Claimant has the right to continue working during the layoff; and
3. Claimant elects a separation from employment; and
4. The employer agrees to claimant’s election; and
5. The election is provided for in a collective bargaining agreement or written employer plan; and
6. The separation is for a temporary period whose length is agreed to by the employer and the claimant.
4. A claimant who elects a layoff pursuant to those conditions, should be interviewed regarding all reasons for choosing layoff. Failing to meet the conditions set forth in 3 above, a claimant may, nevertheless, demonstrate compelling reasons for leaving the job, thus resulting in a voluntary leaving with good cause.
5. Absent the necessary "waiver of retention rights" conditions, or compelling reasons for voluntary leaving, the general rule applies than an employee volunteering layoff in place of a co-worker quits without good cause. (Matter of Rivera, 29 AD 2d 582; Interpretation Service Index 1705 #1)
6. Questions regarding the applicability of this amendment are to be directed to the Adjudication Services Office.

 

A-750-1933

Index No. 1605 A-7

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 17, 1983

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
General

A.B. 332,322

ADVANCING DATE OF RESIGNATION

Advancing the effective date of a claimant’s resignation by four days with the claimant’s consent does not alter the voluntary nature of the separation.

FINDINGS OF FACT: The claimant worked as a housekeeper at a nursing home for about 12 weeks through November 20, 1981. On November 10, 1981, claimant submitted her resignation for personal reasons to her supervisor and gave two weeks notice. The supervisor suggested that the effective date of claimant’s resignation should be November 20 in order that claimant’s employment ended at the conclusion of a workweek. Claimant agreed with the suggestion and worked until November 20, 1981, when she left her employment.

OPINION: The credible evidence establishes that claimant, resigned her employment for personal reasons which were not compelling under the law. Claimant submitted her resignation on November 10, 1981, effective two weeks from that date. The fact that, at the employer’s suggestion, it was agreed that claimant’s last day of work be advanced by four days does not alter the voluntary aspect of claimant’s separation from employment. The four days was but a reasonable accommodation to the employer with claimant’s agreement. We conclude that claimant quit for personal, non-compelling reasons, and without good cause under the Law.

DECISION: The initial determination of the local office is overruled.

The employer’s objection is sustained.

The claimant is disqualified from receiving benefits effective November 21, 1981, because she voluntarily left her employment without good cause, until she has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and earnings from self-employment will not count.

The decision of the administrative law judge is reversed.

COMMENTS

1. The rule that a claimant who gives notice of leaving at a future date but is discharged for that reason at an earlier date does not voluntarily leave employment (Matter of Senator, 76 AD 2d 652; A-750-1897) does not apply in the present case. Here, the claimant was not discharged, but agreed to the suggestion that the effective date of resignation be fixed to coincide with the end of a workweek.
2. When the original date of resignation has been advanced at the employer’s request, it is necessary to determine whether the claimant’s separation at the earlier date was voluntary or involuntary. If the claimant was not required to accede to the employer’s request but had the option to remain through the original date of resignation, the leaving is voluntary.

 

A-750-1934

Index No. 920 A-6

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 25, 1983

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Education Institutions

SUMMER TERM EMPLOYMENT

The provisions of Section 590.10 apply to the period between two successive academic years of terms. Thus, a teach who has reasonable assurance of employment during the next academic year is subject to the provisions of Section 590.10 although employed during a term between the academic years.

Matter of Lintz, 89 AD 2d 1038

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 29, 1981, which reversed the decision of the administrative law judge and overruled an initial determination of the Commissioner of Labor which ruled claimant ineligible for benefits effective June 16, 1980. Claimant was employed as an adjunct assistant professor for the entire 1979-1980 academic year at New York University where she had been employed since 1968. During the same academic year, claimant had also taught a course or two at Touro and Staten Island Colleges on a limited part-time basis. In March of 1980, through a memorandum of employment, claimant was advised by New York University that her employment was available to her for the 1980-1981 academic year and would commence on September 22, 1980. Claimant concedes receipt of the memorandum and she responded by ordering the textbooks she intended to use through the university library. Claimant also applied for and was granted a position as a part time teacher in the abbreviated summer school session running from June 9 through July 23. Contending that she was not between two successive academic years but rather was in "the middle of an academic term" during which she had only partial employment, claimant filed for benefits by certifying as to partial unemployment from June 16 through July 27. The Board found that claimant was "not between academic terms" while teaching par-time two days a week during the five-week summer session and was, therefore, eligible for partial benefits. We disagree. While great weight is to be accorded to the construction given statutes by the agencies responsible for their administration and, if not irrational or unreasonable, that construction should be upheld (Matter of Howard v Wyman, 28 NY 2d 434), the issue presented, involving the interpretation of statutory language, is a question more appropriate for judicial rather than administrative resolution [Matter of Van Teslar (Levine), 35 NY 2d 311; Matter of Theurer (Trustees of Columbia Univ. in City of N.Y. – Ross), 59 AD 2d 196]. Subdivision 10 of Section 590 of the Labor Law provides in substance that as to one employed in an instructional capacity, his or her weeks of employment and remuneration therefor shall be disregarded in determining his or her eligibility for benefits during the period between academic years or terms provided the claimant has a contract to complete or has reasonable assurance or continued employment. Claimant concededly has that assurance and we have held on numerous occasions that one so situated is not entitled to benefits [see Matter of Gaeta (Ross), 78 AD 2d 742, motion for leave to appeal denied 52 NY 2d 703]. The Board’s holding that because claimant chose to teach two days a week during a five-week summer session she was "not between academic terms" and, therefore, eligible, is both irrational and unreasonable and thwarts the clear legislative intent. The law was enacted for the benefit of teachers whose employment had terminated at the conclusion of the academic year and whose employment prospects for the ensuing academic year were doubtful. It surely was not enacted to supplement the income of a regularly employed teacher who chose to each a few days during her regular summer vacation while awaiting the commencement of the next academic year for which she had unquestioned assurance of employment. Since the question is purely one of statutory reading and analysis, dependent only upon an accurate apprehension of legislative intent, and since the Board’s decision frustrates that clear intent and is irrational and unreasonable, it must be reversed (cf. Matter of Kurcsics v Merchants Mut. Ins. Co., 49 NY 2d 451). Decision reversed, without costs, and initial determination of Commissioner of Labor reinstated. Sweeney, J.P., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.

COMMENTS

1. The provisions of Section 590.10 apply to "any week commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms when the contract provides therefore instead…" In the present case the claimant was working during an academic term, but was, nevertheless, between academic years.
2. The traditional academic year is comprised of two semesters, with a summer vacation period. Academic calendars may vary. Accordingly, it is important to ascertain the beginning and ending dates of the academic years for the particular educational institutions involved.

 

A-750-1935

Index No. 1460 D-7

NEW YORK STATE DEPARTMENT OF LABOAR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 30, 1983

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
MISREPRESENTATION AND RECOVERY OF
OVERPAYMENTS

A.B. 339,118

RETURN OF BENEFITS AS PART OF RETROACTIVE PAY AWARD

A claimant is not totally unemployed for the period covered by a back pay award (retroactive payment of remuneration) despite an agreement between the claimant and the employer to have the employer use part or all of the award to repay unemployment benefits received for the period covered by the award. If the amount used to repay the unemployment benefits is insufficient to repay fully the overpayment resulting from the back pay award, the claimant is obligated to complete repayment of the balance.

FINDINGS OF FACT: Claimant was employed as a mental hygiene therapy aide until he was suspended from work as of the close of business on Friday, September 28, 1979 pending disciplinary action. Effective October 1, 1979, he filed an original claim for benefits and a benefit rate of $120 per week was established. Claimant did not receive unemployment insurance benefits for the statutory week October 1, 1979 through October 7, 1979, as this was his waiting week. Thereafter, he received a full benefit check for each statutory week from the statutory week ending October 14 through the statutory week ending November 18, 1979, totaling $720.

On November 16, 1979, the claimant and the employer reached an agreement which provided for a three week suspension beginning September 29, 1979, without pay, and then full reinstatement with no loss of pay beginning October 20, 1979. Claimant reported back to work on the following Monday.

On February 25,1980, the employer, anticipating a recoverable overpayment determination being issued against the claimant, forwarded $480 to the local office as repayment of the possible overpayment. The balance of the back pay was forwarded to the claimant. On March 5, 1980, the local office issued an initial determination holding that he was not totally unemployed and charging him with a recoverable overpayment of $540 based upon claimant’s back pay award. The total office accepted the employer’s partial payment.

OPINION: The credible evidence establishes that the claimant and the employer entered into an agreement providing for the claimant to receive his back pay as of October 20, 1979. The decision of the Appellate Division (Matter of Minnie Cohen, 44 AD 2d 286, affirming appeal Board 178,824) is not applicable in this case. In Matter of Cohen, the arbitrator determined that the claimant was entitled to damages for wrongful discharge. He determined the amount of damages by reducing the amount of the lost income by the amount of income from collateral sources, including unemployment insurance benefits and income from another job. It was this amount that the employer paid to that claimant. In the instant case, the claimant was entitled to his full back pay for the specified period and it was not damages for wrongful discharge. The agreement did not provide for any reduction for unemployment insurance benefits received, but rather required the employer to pay, out of the proceeds of the salary an obligation of the claimant. The employer was thereby acting as an agent for the claimant. Accordingly, we find that the claimant was not totally unemployed during the period in issue because he received his back pay. Since the award covers two days in the statutory week ending October 21, 1979, one half of the benefits which claimant received for that week constitute an overpayment. The claimant was also overpaid for the four weeks of full benefits received thereafter. This totals $540 in benefits. We conclude that the claimant is obligated to repay the entire amount of the overpayment since it is a retroactive payment of remuneration. Since $480 was paid by the employer, acting as an agent for the claimant, there remains an outstanding balance of $60 due from the claimant.

DECISION: The initial determinations of the local office are sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. The rule of this release is to be distinguished from a prior court decision (Matter of Cohen, 44 AD 2d 286; A-750-1772) holding that a retroactive wage settlement reduced by an amount equal to the claimant’s unemployment insurance benefits for the period covered by the award is not a retroactive payment of remuneration but an award for damages. The claimant was held to be totally unemployed and no overpayment of benefits resulted.

In the present case the claimant, as part of the back pay award authorized the employer to withhold an amount equal to the unemployment benefits for the purpose of repaying the benefits to the local office. The employer was the claimant’s agent and the claimant was deemed to have received his full back wages.

2. Also distinguishable are rules relating to partial back pay awards (A-750-1125 and A-750-1888). The present case deals with a payment of full retroactive wages, notwithstanding that some of the award did not go directly to the claimant but was used to repay an overpayment of benefits. The Appeal Board’s decision applies with equal force to cases of partial back pay awards.
3. An overpayment resulting from a retroactive payment of remuneration is recoverable within six months from the date of the payment, even though the claimant made no false statements and accepted the benefits in good faith (Labor Law, §597.3 & 597.4).
4. Retroactive wage payments may arise in various ways: for example from employer-employee agreement, resolution of grievances, private or governmental arbitration, or court judgments or settlements. For purpose of the present rule or any related rules regarding back pay awards, it is irrelevant which lawful means was employed by the respective parties to arrive at the settlement or award.

 

A-750-1936

Index 1137-4

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

April 25, 1983

Interpretation Service - Benefit Claims
MISCONDUCT
Civil Rights

Refusal to Answer Employer's Questions

A public employee discharged for refusing to answer the employer's questions during a disciplinary investigation has violated a condition of employment and is subject to a misconduct disqualification, provided the responses may not be used against the employee in subsequent criminal proceedings.

MATTER OF ALTIERI, ___AD 2D ___ (March 10, 1983)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 9, 1982.

Claimant, a corrections officer at the Dutchess County Jail, was discharged for refusing to answer questions during a disciplinary inquiry respecting an alleged assault upon an inmate. The board, reversing the determination of the Administrative Law Judge, found that claimant's silence amounted to misconduct, thereby rendering him ineligible for employment benefits.

It is established that:

the State may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence (Gardner v. Broderick. 392 U.S. 273). But testimony compelled in this matter, under threat of loss of public employment, may not be used as a basis for subsequent prosecution (citation omitted).

(People v. Avant, 33 N.Y. 2d 265, 271; see, also, Dolan v. Kelly, 76 Misc. 2d 151,153). Accordingly, in a case such as this, the employee's right to immunity as a result of his compelled testimony is not at stake (see Sanitation Men v. Sanitation Comr., 392 U.S. 280). This being so, we agree with the board that claimant's dismissal was not related to the exercise of his constitutional rights but, rather, was a result of his refusal to perform a duty of his public employment. In fact, it is uncontroverted that in refusing to cooperate, claimant disregarded the advice of his union and violated the terms of his collective bargaining agreement. Under these circumstances, the board could properly conclude that claimant's refusal to cooperate rose to the level of misconduct in connection with his employment (cf. Dolan v. Kelly. supra, p.153).

The present case is distinguishable from Matter of Kubus (Ross) (62 AD 2d 534), a holding which was expressly limited to the factual situation presented therein. In Matter of Kubus, this court concluded that claimant had elected to avail herself of the protection of the Fifth Amendment of the U.S. Constitution as her testimony "may ultimately be used in a criminal proceeding" against her (id. at 535). As any testimony given in the instant disciplinary inquiry by claimant could not be used against him in a subsequent criminal proceeding (People v. Avant, supra), the present situation differs materially from Matter of Kubus. The board's decision should, therefore, be affirmed.

Decision affirmed, without costs.

KANE, J.P., MIKOLL, YESAWICH, JR., WEISS and LEVINE, JJ., concur.

COMMENTS

1. Matter or Kubus (67 AD 2d 534; A-750-1858) cited in the court's opinion established the principle that refusal to answer questions during an employer's formal interrogation regarding improprieties is not misconduct if the testimony may be used in a criminal proceeding against the employee. In the present case, the court held there was no issue of self-incrimination because the claimant enjoyed the right to immunity as a result of the compelled testimony. Furthermore, the collective bargaining agreement authorized such testimony.
2. In resolving issues arising from a claimant's refusal to cooperate with an employer's investigation into wrongdoing, local offices must determine whether the answers could be used in criminal proceedings against the claimant. Complex cases may be referred to the Adjudication Services Office for opinion.

 

A-750-1937

Index 920 C-8

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 16, 1983

Interpretation Service -Benefit Claim
DETERMINATION OF BENEFITS
Employees of Educational Institutions

SUBSTITUTE TEACHER/PRO FORMA LETTER

A pro forma letter sent by a school district informing a claimant of placement on its substitute teacher's list does not establish reasonable assurance of employment when the district does not intend to employ the claimant during the next school year.

A.B.339,163

FINDINGS OF FACT: Claimant was employed as a substitute teacher by a school district until November 13, 1981. He was not called for work by that employer after that date because he had relocated to a residence almost two hours' drive from the school district where he had been employed. On or about June 28, 1982, claimant received a letter from the school district at his new address which advised claimant of continuing employment as a substitute teacher in the Fall, 1982 term. The school district knew that claimant had moved and that his residence was almost two hours away.

OPINION: The credible evidence now before the Board establishes that after November 13, 1981 claimant was not offered any substitute teaching assignments by the school district which was aware of the change in claimant's living arrangements and his relocation to an area that was two hours drive to the schools where he had formerly worked. We disagree with the judge's conclusion that claimant received reasonable assurance of reemployment by the school district in the next academic term. The letter from the employer to the claimant in June, 1982, was merely pro forma and was not sent to the claimant with the intent to actually employ him in the next school year.

DECISION: The initial determination of the local office is overruled. The decision of the administrative law judge is reversed.

COMMENTS

1. An offer of inclusion on the list from which substitute teachers are to be called constitutes reasonable assurance of employment provided it represents a bona fide intention to employ the claimant during the next school year.
2. In the present case the school district knew of the claimant's move beyond a reasonable commuting distance, discontinued calling the claimant and no longer intended to use the claimant's services. Thus, the letter did not represent a bona fide intention to call the claimant.

 

A-750-1938

Index 920 C-9

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 16, 1993

Interpretation Service - Benefit Claims
DETERMINATION OF BENEFITS
Employees of Educational Institutions

SUBSTITUTE TEACHERS LIST

A letter from a school district informing claimant of inclusion on its list of substitute teachers does not constitute reasonable assurance of employment when that list is not used by its schools as a source for employing substitute teachers.

A.B. 328,152 et. al.

FINDINGS OF FACT: The employer school district operates three elementary schools, a middle school and a high school. Claimants J.L., L.J. and M.D. were full time elementary school teachers. Claimant H.H. was a full time driver education teacher at the high school. All were laid off as of June 19, 1981, the close of the 1980-8l school year, due to a reduction in force.

In early June, 1981, all of the school district's principals submitted their 1980-81 substitute teacher lists to the central office. The central business office then compiled a list of all substitutes who had been available to teach in the 1990-81 school year. To that master list it added the names of the laid off teachers, including the claimants herein. On June 19, 1981, the central business office sent to each person on that list, including the claimants, a letter which stated, in part: "...we are placing you on our active substitute list for the 1981-82 school year." Each claimant received a copy of this letter.

The central office does not maintain a system wide active substitute list. The principal of the elementary and middle schools each maintain their own substitute lists, from which they call teachers. These substitute lists for the 1981-82 school year were compiled by each principal shortly before or after the beginning of the 1981-82 school year on September 3, 1981. At a meeting of all the principals and the district superintendent on August 24, 1981, the principals were requested to add the names of the laid off teachers to their substitute lists. The central office, however, did not provide the principals with copies of its master list of substitutes, nor did it thereafter attempt to verify that the names of the laid off teachers had been added to the individual lists of the respective schools.

The principal of the H.P. Elementary School compiled his list of substitute teachers on August 27, 1982 and the names of J.L. and L.J. were included on it. The principal inadvertently omitted M.D.'s name. M.D.'s name was also inadvertently omitted from the list of the B. Elementary School, which was compiled a few days later by that principal. The list for the W.F. Elementary School was not compiled until the second week of the 1981-82 term and, for the first time, M.D.'s name was included on that list by that school's principal. The name of no claimant herein appeared on the list of the middle school until J.L. requested that her name be included on it in September, 1981. H.H. did the same in January, 1982.

High school substitutes are called by the Employment Service from the Teachers Registry which it compiles. In order to be included on the Employment Service list, a teacher must request that his name be added to it. The high school can request that the Employment Service add particular names to its list, but the Employment Service will not do so until it notifies the teachers in question and receives their consent to their inclusion on the list. Because H.H. had received the letter from the central office stating that he was being placed on its active substitute list, he was unaware that he had to notify the Employment Service to be included on the high school substitute list. He first became aware of this requirement when he heard the testimony of an employee of the Employment Service which was taken at the hearing before the administrative law judge on September 14, 1981. H.H. then took immediate steps to have his name placed on the list. The high school did not request his inclusion on the list until early October, 1981.

OPINION: The Board has previously held that a claimant has a reasonable assurance of employment in an instructional capacity during the next academic term when he is informed by the employer that his name is being placed on the list from which substitutes are called to teach. The reasonable assurance is established by the presence of the claimant's name on said list (Appeal Board 275,301; 313,883; and 320,200). The credible evidence now before the Board establishes that the employer's letter of June 19, 1982, which purportedly advised claimants of their inclusion on the employer's active substitute list, did not provide them with a reasonable assurance of employment in the 1981-82 term. To the contrary, the master list compiled by the central office and referred to in its letter had no relation to the actual substitute lists from which substitute teachers were called by the principals or by the Employment Service. Its lack of relationship of the actual active substitute lists is evidenced by the fact that the central office neither provided the principals nor the Employment Service with its master list of available substitutes nor did it verify that the names of the teachers to whom it had sent the letter were ever placed on any school's list resulting in the failure to include M.D's name on two and L.J's on one of the three lists from which they were most likely to be called. The letter, far from providing a reasonable assurance of employment, misled the claimants to the manner in which substitutes were called. This is especially true in the case of H.H. because he was not advised that he must himself take the initiative to have his name placed on a high school list maintained by the employment Service.

The present cases are similar to Matter of Maass (77 Ad 2d 765, rev'g A.B. 298,259). In Maass, the Court held that where the list on which the claimant's name was placed was not a source of employment, the employer's letter advising her of such placement on the list did not constitute a reasonable assurance of employment. While the nature of the teaching employment in Maass was different from that present here, the circumstances of the notification to claimants that they were being placed on a list which was not, in fact, the source of employment was the same. Accordingly, we conclude that the employer's letter of June 19, 1981 did not provide claimants with a reasonable assurance of employment during the 1981-82 term.

We further conclude that there was no reasonable assurance of employment until such time as the names of each claimant were actually placed on at least one of the substitute lists which would eventually be used. Inasmuch as the employer refused to produce the middle school list or have its principal testify, we must infer that none of the claimants were included on it. Thus J.L. and L.J. had a reasonable assurance as of August 27, 1981, the date that the principal of H.P. Elementary School compiled his list and included their names. Accordingly, they were ineligible to receive benefits effective August 31, 1981, the Monday following the day upon which there was a reasonable assurance of employment. Claimant M.D. did not appear on any list until after the 1981-82 school year had began. She was thus eligible to receive benefits during the entire summer recess. H.H. was also entitled to have his weeks and earnings as a teacher considered during the entire summer recess. His name did not appear on any list until after the hearing before the administrative law judge on September 14, 1981.

We reject the employer's contention that the Board and the administrative law judge exceeded their discretion by directing the employer to produce certain witnesses and documents. Any reliance on the State Administrative Procedure Act is inappropriate since this Board is specifically excluded from its provisions. The conduct of our hearings is to be governed by rules and regulations established by the Board (Labor Law, Section 622.1). We also note that there is no "burden of proof" in our proceedings, as that phrase is traditionally understood.

All of the evidence and testimony requested by the Board in our Order of Remand was for the purpose of determining the manner in which substitute lists were compiled and substitutes called, and the relationship between the employer's June 19, 1981 letter and claimants' subsequent placement on a substitute list. All of this and the items considered at the Board hearing are information which is relevant to the matter in issue and we think that it was properly requested (Labor Law, Section 621.3). Since the employer and the Commissioner of Labor had contended that Section 590.10 applied by reason of the June 19, 1981 letter, we determined it was proper to consolidate these four cases (12 N.Y.C. R.R. 463.2 d). All of these actions were necessary so that we could ascertain the substantial rights of the parties (Labor Law, Section 622.2).

DECISION: The initial determinations of the local office holding claimants J.L. and L.J. ineligible to receive benefits effective July 6, and July It 1981 respectively, pursuant to Section 590.10 of the Law, are modified to be effective August 31, 1981 and, as so modified, are sustained.

The initial determinations of the local office holding claimants M.D. and H.H. ineligible to receive benefits effective July 1, 1981, pursuant to Section 590.10 of the Law, are overruled.

The decision of the administrative law judge filed September 23, 1981 (ALJ No.581-02322) in the case of J.L. is modified accordingly and, as so modified, is affirmed. (Appeal Board 328,152).

The decision of the administrative law judge filed September 18, 1981 (ALJ No.581-02292) in the case of L.J. is modified accordingly and, as so modified, is affirmed.

The decision of the administrative law judge filed September 18, 1981 (ALJ No.581-02293) in the case of M.D. is reversed.

The decision of the administrative law judge filed September 18, 1981 (ALJ No.581-02301) in the case of H.H. is affirmed.

COMMENTS

1. In determining whether a letter offering a claimant inclusion on a substitute teacher's list constitutes reasonable assurance of employment, local offices must establish that the list on which the claimant appears is not merely a compilation of names, but is actually used for the employment of substitute teachers.

2. Form LO 11.2 (Report of Employment) has been revised to include questions to obtain this information.

 

A-750-1940

Index 920 C-10

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 30, 1983

Interpretation Service - Benefit Claims
DETERMINATION OF BENEFITS
Employees of Educational Institutions

CONCURRENT POSITIONS

A claimant who held a teaching position concurrently with a position subject to §590.11 who has a contract of continuing employment in the non-instructional capacity, but no reasonable assurance of employment as a teacher, may use the weeks of employment and wages earned as a teacher to establish a benefit claim.

A.B.339,140

FINDINGS OF FACT: During the 1981-82 school year, claimant was employed by a public school district as a teaching assistant and regular substitute teacher. Originally, he was given an appointment as a probationary teaching assistant and, after three years, he would receive tenure in that position. The original appointment was for that three-year period. He spent approximately equal time at each position during the 1981-82 school year. As a teaching assistant, he took attendance, maintained order in the classroom, made photocopies for the teacher, watered the plants, and erased the blackboard. He was not permitted to teach or give instruction to the students in the class. As a substitute teacher, he had full responsibility for instructing students in the study of English, as a second language.

By letter dated June 3, 1982, claimant was informed that the school district had no need for his services in his current joint assignments for the following school year. The letter also stated that, if he was interested in continuing as a teaching assistant, he should contact the Associate For Personnel and Instruction. The letter indicated that such a position would not prevent claimant from obtaining a teaching job in the district or elsewhere. The letter concluded with the observation that, in view of the claimant's quality teaching, the district would be delighted to offer him teaching employment if a position became available. In a memorandum dated June 23, 1982, the employer reminded the claimant that he did, in fact, "have a probationary appointment as a teaching assistant and the district plans to continue your services in that title unless you indicate that you are not interested in continuing." The memo further stated that the district was planning on claimant's availability as a teaching assistant. Subsequent memoranda advised the claimant that the district still did not know if claimant intended to return to work. They requested that he submit a resignation if he did not intend to return. They also, indicated that formal action would be taken to remove claimant if he did not report for duty on September 7,1982 and had not resigned. Claimant neither resigned nor reported.

OPINION: The credible evidence now before the Board establishes that half of the claimant's employment with the school district was in a non-professional capacity. The duties which he performed as a teaching assistant were not instructional in nature. The record fails to establish that the duties of the offered full-time position as a teaching assistant would be substantially different from those performed by the claimant during the prior school year. Although the joint position had been abolished, the memorandum of June 23, 1982 establishes that the school district was continuing claimant's employment as a teaching assistant under the probationary appointment. There were no substantial preconditions to this continued employment. Under these circumstances, we find that the claimant had an individual contract, within the meaning of Section 590.1 to perform non-instructional services for the following school year. Claimant's silence does not change our result. A contract, may exist without a commitment on the part of the employee (Matter of La Mountain, 51 NY 2d 318, at 331, aff'g 70 AD 2d 374, aff'g Appeal Board 276,250). Accordingly, the wages which he received as a teaching assistant (one half of his total wages) cannot be used by the claimant to establish a benefit rate during the summer.

The credible evidence further establishes that the claimant's instructional position as a teacher of English as a second language was excessed. He had no reasonable assurance of continued employment in any instructional capacity. Accordingly we conclude that the weeks worked and wages received as a teacher (one half of his total wages) can be used by the claimant to establish his benefit rate during the summer.

DECISION: The initial determination of the local office pursuant to Section 590.11 of the Law is sustained.

The initial determination of the local office pursuant to Section 590.10 of the Law is overruled.

The matter of the claimant's benefit rate during the summer is referred to the local office for computation in accord with our decision.

The decision of the administrative law judge is modified accordingly, and, as so, modified, is affirmed.

COMMENTS

1. Section 590.11 of the Unemployment Insurance Law pertains to claimants employed "in other than an instructional, research or principal administrative capacity by an educational institution which is not an institution of higher education..." If its provisions are met, the claimant's entitlement is to be established "by disregarding the weeks of employment and the remuneration earned in such employment."
2. All other employment, including employment in "an instructional, research or principal administrative capacity" may be used to establish benefit rights.
3. The principle of comment 2 also applies to claimants subject to §590.10.
4. The rule of this release has no effect on claimants whose job title or duties change from one school year to the next when both jobs fall within the same category of employment (§590 §590.11). Such claimants are subject to the provisions of applicable section A750-1879; A750-1921)

 

A-750-1941

Index 1650 A-9

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 30, 1983

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Grievances and Objections

SUPERVISOR'S USE OF PROFANITY

A supervisor's continuing use of abusive profanity when reprimanding the claimant, despite complaints to the employer, provides good cause for voluntary leaving of employment.

A.B. 337,447

FINDINGS OF FACT: Claimant, a general laborer, was employed by a frozen foods company for approximately eight months until April 24, 1982. During the course of his employment, claimant's supervisor developed a pattern of reprimanding the claimant and using profanities and foul language. The final incident occurred when the claimant did maintenance work on some of the employer's equipment, a job which the supervisor believed to be his own responsibility. In reprimanding the claimant, his supervisor engaged in the same pattern of profanity which he had previously used toward claimant during his employment. On at least two occasions, claimant complained to the employer and requested to be moved to another job. No action was taken by the employer. Claimant subsequently resigned his employment because he was unable to tolerate the supervisor's abusive language.

OPINION: The credible evidence now before the Board establishes that the claimant resigned his employment because he could not tolerate the abusive language directed towards him by his supervisor. The fact that claimant remained in this employment situation despite a developing pattern of abusive profanity, and requested a transfer to another job indicates a valid effort to retain his employment. However, the claimant was not obliged to continue to subject himself to his supervisor's profanity and abuse in order to safeguard his employment. Even if the employer's contentions were true, that claimant's supervisor addresses all of his subordinates in a like manner, this does not operate to deprive claimant of a valid basis for resigning his employment. Accordingly, we conclude that claimant's separation from his employment occurred under non-disqualifying conditions because he did have good cause to resign his employment.

DECISION: The initial determination of the local office is overruled. The decision of the administrative law judge is reversed.

COMMENTS

1. It is an employer's prerogative to criticize or reprimand an employee, and resentment of a reprimand usually is not good cause to voluntarily leave employment.
2. However, good cause may exist when the reprimand:
1. bears no relation to the claimant's work or to reasonable work rules, but is directed instead at the claimant's personal characteristics or private life; or
2. exceeds the bounds of propriety by casting aspersions upon the claimant's integrity, making insulting personal references, including name calling, or employing profanity when such language is not customarily used by most workers in the industry or workplace; or
3. adversely affects the claimant's health, even if the criticism is otherwise proper, if there is medical substantiation that the claimant's physical or mental well being is threatened;

provided the claimant in each of these situations has informed the employer but obtained no relief.

 

A-750-1943

Index 1250 F-8
1275 A-12
1290 B-l0

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 7, 1983

Interpretation Service - Benefit Claims
REFUSAL OF EMPLOYMENT

Regular Teacher: Per Diem Substitute Work

The job skills required of a regular teacher are different from those required of a per diem substitute teacher. Therefore:

1. A claimant whose primary base period employment has been as a regular teacher is not reasonably fitted by training and experience to be a per diem substitute teacher.
2. To determine whether the wages offered for a per diem substitute position are "substantially less favorable than those prevailing for similar work in the locality" the rate to be considered is that prevailing for per diem teachers.

A.B. 346,709A

Findings of Fact: The claimant, a tenured elementary school teacher, was first employed by a public school district for four or five years on a full-time basis. Then, at her own request, she was assigned to part-time work. Her salary for part-time work in the 1980-81 school year was $7,393. In June, 1981, she was advised by the school district that her position was eliminated because of a reduction in force.

The claimant filed an original claim for benefits effective September 7, 1981. A weekly benefit rate of $97 was established for her. During the first few weeks of the 1981-82 school year, the claimant worked for several days as a per diem substitute school teacher. Her rate of pay as a per diem school teacher was $36 per day. On September 24, 1981, the claimant was telephoned by the Teacher's Registry of the Employment Service and was offered employment as a substitute teacher for that day. The claimant refused the offer because the per diem salary of $36 was less than the daily rate for her half-day of teaching during the previous school year. Later that same day, for the same reason, the claimant refused an offer of employment from the Registry to be a substitute teacher on the following day.

On September 28, 1981, the claimant was called by the Registry about working as a per diem substitute, but she advised the Registry that she was not available for work on that day. 0n September 29, and 30, 1981, the claimant was again called by the Registry and she refused offers of substitute teaching work because of the salary.

According to a survey by the Board of Cooperative Educational Services (B.O.C.E.S.) for the area, the per diem rates paid to substitute teachers by this school district are comparable to, if not higher than, the rates paid by other school districts in the area.

Opinion: It is well established that the Board has continuing jurisdiction to reopen a case upon its own motion; or upon application duly made to it (Labor Law, Section 534; Matter of Capital Hill Reporting (Ross), 64 AD 2d 778, mot for lv. to app den 45 NY 2d 713, and Matter of Mauskoff (Ross), 79 AD 2d 790). Pursuant to that authority, we have determined to reopen this case on our own motion.

The credible evidence establishes that claimant's employment history is primarily that of a permanent teacher. As a permanent teacher, working only half time during the 1980-81 school year, she earned $7,393. When claimant worked as a per diem substitute teacher for several days during the first few weeks of the 1981-82 school year, she was paid $36 per day. On September 24, 1981, the claimant was called by the Teacher's Registry of the Employment Service and was offered employment as a substitute teacher for that day. The claimant refused the offer because the per diem salary was less than the daily rate for her half-day work during the previous year. On September 28, 1981, and again on September 29, and 30, 1981, the claimant was again called by the Registry and again she refused offers of substitute teaching work because of the salary.

We must first consider whether or not the pay for such work was substantially less favorable to claimant than the wage prevailing for similar work in the locality. The B.O.C.E.S. survey lends support to the conclusion that the salary offered for the per diem assignments was not substantially less favorable to claimant than the wage prevailing in the locality for similar work. Moreover, $36 exceeded claimant's benefit rate for one effective day ($24.2) (Matter of Scranton, 12 NY 2d 983, aff'g Appeal Board 79,057). Accordingly, we conclude that the offered position did not pay substantially less than the prevailing wage.

However, the question remains as to whether or not the claimant is fitted by training and experience for per diem work as a substitute teacher. In our prior decision in this case, we disagreed with the initial determination of the local office which ruled that the claimant had primarily worked as a permanent teacher in the last year and, therefore, was not reasonably fitted by training and experience for per diem work. The initial determination followed Field Memorandum 4-80 wherein the Commissioner of Labor adopted the view that if, during the year preceding the filing of an original claim, the claimant worked primarily as a permanent teacher, such claimant is not fitted by training and experience for per diem work as a substitute teacher.

This Board has previously held the view that the determining factor is not whether an individual is physically able to perform a particular type of work. Many people can do entry-level jobs or menial tasks. That does not require us to conclude that all of these people are reasonably fitted by training and experience for such work. Work offered to a claimant for unemployment insurance benefits must be reasonably suited to an individual's skills and talents. The skills which this claimant has acquired through years of study and actual experience as a regular teacher are very different from the requirements for assignment to per diem work. She had been required to make lesson plans and to chart the scholastic and psychological developments of her students. A per diem substitute has no such responsibilities. The higher standards required for a regular teacher are often reflected in the higher salary, full benefit coverage and union representation which a per diem substitute does not enjoy. While a full use of skills is not required, there must be an attempt to match an individual's qualifications, in an equitable manner, to the specifications of an available position.

We must also look to some of the peculiar skills required in the offered position in a determination of its suitability for this claimant. A per diem substitute is required to enter the classroom, to maintain order conducive to the learning experience, and, Without advance preparation, to follow the lesson plan established by the regular teacher, all with children With whom he or she has had and probably Will have little other contact. This points to two important definable characteristics required of a per diem substitute teacher.

The first is the ability to maintain order in the classroom. The probability of little future contact with the pupils requires that the teacher possess skills and a presence which are conducive to discipline. There can be little follow-up or enforcement of decisions beyond the end of that particular day. The pupils are often unknown to the per diem teacher when he or she enters the room. Assessments of the emotional, psychological and social development of the individual child must be on the spur of the moment and are deprived of the overview held by the regular teacher who is required to engage in long range planning for the child's development and growth in those areas. Having been a regular teacher, this claimant would not have been required to develop such skills or presence. At most, they might only have been helpful on the first, few days of a new school term.

The second distinguishing quality required of a per diem substitute is the ability, without advance preparation, to follow the lesson plan established by the regular teacher. Ideally, the lesson plan has been developed to coordinate the skills and personality of the regular teacher with the abilities and potentials of the students so as to achieve a model learning situation. The per diem substitute has no opportunity to review the plan before he or she is expected to implement it to the best of his or her abilities. The plan is geared toward the educational techniques used by the regular teacher, not necessarily by the substitute. The per diem teacher may be unfamiliar with the topic being covered even if it is within the area of his or her certification. On the other hand, this spontaneity is obviously not required of the regular teacher and would not be compatible with the job requirement that he or she plans lessons.

While it may be easy to say that a teacher is a teacher and that anyone can do the job of a per diem substitute, a closer analysis of the roles of a regular teacher and of a per diem teacher prevents such hasty conclusions. Upon review of the entire record and all of the evidence, we are now disposed to conclude that the view set forth in the aforementioned Field Memorandum 4-80 expresses a more equitable application of the statute upon all of the circumstances. Accordingly, we determine that this claimant who had been a regular teacher for several years, is not reasonably fitted by training and experience to be a per diem substitute teacher. The fact that she may have given the occupation of per diem teacher a reasonable trial period for a few days at the start of the school year does not change the conclusion. Accordingly, we conclude that claimant had good cause to refuse the offered positions.

Decision: The decision of the Board filed April 8, 1982 (Appeal Board 329,177) is hereby rescinded.

The initial determination of the local office is sustained.

The employer's objection is overruled.

The decision of the administrative law judge is affirmed.

COMMENTS

1. In the present case the Appeal Board held that the difference in salary between per diem substitute teachers and regular teachers is not based on the duration of employment, but on the different skills required for the two jobs.
2. In this decision the Appeal Board has specifically endorsed the policy set forth in Field Memorandum 4-80. The portion dealing with the suitability of offers of substitute teaching jobs to regular teachers follows.
3. In determining the suitability of a job offer in the instructional field, where there are such varying skill levels consideration is to be given to the claimant's work history. If during the one year preceding the filing of an initial claim, the claimant worked primarily as a permanent teacher, a refusal of per diem substitute work would be with good cause and the claimant should not be held unavailable for failing to seek per diem substitute work.

On the other hand, a claimant with a recent history of per diem work who refuses to seek or accept such work is subject to being held unavailable or a disqualification for refusal in the absence of other reasons which may provide good cause.

Many teachers have worked both as permanent and substitute teachers. Within the class of substitute teachers are those who work on call (per diem) and those hired for longer periods to replace permanent teachers on leave. A teacher who has had a substantial amount of work as both a permanent and substitute in the one year period preceding the initial claim is fitted by training and experience for both kinds of teaching employment and may be subject to a denial of benefits for refusing to accept or seek substitute work.

When a question of wages is raised by a claimant, local offices may not overlook the relationship between benefit rate and net pay from offered employment. The principle that there is good cause to refuse a job when the net pay plus partial benefits is less than the benefit rate is applicable to teachers as well as any other occupation (Matter of Scranton; A-750-1557). For example, a teacher, with a benefit rate of $125, who refuses a one-day job paying a net (take home) wage of $30, does so with good cause.

If during a benefit year, a permanent teacher works as a substitute for a substantial period, such individual becomes fitted by training and experience for substitute work.

 

A-750-1944

Index 1610-7

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 20, 1983

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Actions Leaving the Employer No Choice

FAILURE TO TAKE CIVIL SERVICE TEST

A provisional Civil Service employee who was aware of the requirement to take a Civil Service examination to retain employment but chose not to do so for personal reasons is subject to disqualification for voluntary separation when the employer is required to permanently fill all its positions with candidates who passed the test.

A.B.339,362

FINDINGS OF FACT: Claimant worked as a provisional office aide in the office of the comptroller of a major municipality for approximately four and one-half years. Claimant was aware that, as a condition of her continued employment, she was required to pass a Civil Service examination to be given on Saturday, August 8, 1981. She filed her application in time to take the examination. However, on the date the examination was given, claimant attended the funeral of her husband's grandfather in Florida and did not take the test. Consequently, claimant's name was not on the civil service list that was promulgated. All the other provisional employees at claimant's level in the department where she worked took the August 8, 1981 examination, and passed it. Each of these individuals was appointed to a permanent position. The employer was obliged, because claimant's name was not on that list, to discharge her, effective March 5,1982.

OPINION: The credible evidence now before the Board establishes that claimant failed to take the civil service examination due to her attendance at the out of town funeral of her husband's grandfather. This was personal and non-compelling reason to be away. Claimant's choice not to take the examination left her employer no alternative, once the list was promulgated, but to discharge her. Accordingly, we conclude that claimant's actions provoked her discharge, and that the disqualification for voluntarily leaving her employment without good cause was properly imposed. In view of this ruling, claimant was overpaid $1,356 in benefits, which has been ruled non-recoverable.

DECISION: The initial determinations of the local office are sustained. The decision of the administrative law judge is affirmed.

COMMENTS

1. The rule of this release should be contrasted with that reported in A-750-1945. In the present case the employer had no option to retain the claimant, but was obligated to discharge her and fill the position with a candidate from the permanent list.
2. The rule of this release does not apply to claimants who:

a) did not know they had to take an examination;

b) were given no notice an examination was being offered;

c) were hired after the deadline for filing;

d) had a compelling reason for missing the examination; or

e) took the examination but failed it.

 

A-750-1945

Index 1610-8

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 20, 1983

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Actions Leaving the Employer No Choice

FAILURE TO TAKE CIVIL SERVICE TEST

A provisional Civil Service employee who does not take the test necessary for permanent appointment and is subsequently terminated is not subject to disqualification for voluntary separation when the list established from the test is exhausted before all items are filled and some provisional employees are retained by the employer.

A.B. 335,863-A

FINDINGS OF FACT: The claimant, a mechanic, worked for the sanitation department of a municipality as a provisional civil servant, from October 29, 1979 through September 24, 1981. During his employment, he was among a group of approximately 125 other mechanics who held their appointments provisionally. Several months prior to September, 1981, the municipality administered a civil service examination to permanently fill those positions. The claimant did not apply to take the test. In September, 1981, a civil service list was certified as a result of the examination and permanent appointments were made to fill the positions. Approximately 105 of the provisional appointees either did not take or pass the examination. There was a total of about 200 candidates who did pass the test. However, the list of passing candidates was exhausted before the end of September, 1981, and many provisional appointees were retained. The department had a choice as to which provisionals to retain. The claimant was not retained because, although his performance evaluations were satisfactory, they were not as good as the evaluations of the mechanics retained. The claimant's failure to take the civil service examination did not influence the department's decision to terminate him. At all times, the claimant was ready, willing, and able to continue his employment.

OPINION: The credible evidence now before the Board establishes that the claimant was discharged by the employer because his performance evaluations were not as good as those of other provisional employees who were retained after the exhaustion of the civil service list for the position he held. The employer was not compelled to discharge him as a result of his not taking or passing the examination. Accordingly, the claimant did not provoke his discharge by failing to take the examination, and he may not be disqualified from receiving benefits.

DECISION: The claimant's application to reopen and reconsider the decision of the Board filed January 25, 1982 (Appeal Board 330,476) is granted and the said decision is hereby rescinded.

The initial determination of the local office is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. The rule of this release should be contrasted with that reported in A-750-1944. In that case, the claimant's, unemployment was directly attributable to the failure to take the Civil Service test as the claimant had to be replaced by a candidate from the permanent list. In the present case, although the employer had to discharge a number of provisional employees, staffing requirements permitted it to retain some. It was not obligated to discharge all or any particular provisional employees. The selection of the claimant for dismissal was not predicated on any act of the claimant; rather it was the employer's choice.

2. These cases demonstrate the critical importance of thorough fact finding to determine the ultimate cause of a claimant's separation.

 

A-750-1946

Index 1130-13
1195-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 21, 1983

Interpretation Service - Benefit Claims
MISCONDUCT
Behavior off job
Criminal acts

OFF DUTY ACT: "IN CONNECTION WITH" EMPLOYMENT

A claimant's off duty act, in disregard of standards of behavior which an employer has a right to expect of its employees, is "in connection with" employment within the meaning of §593.3 (misconduct) and §593.4 (criminal acts) of the Labor Law. (Claimant, a fiscal analyst for a municipality, was convicted of engaging in felonious corruption of a public official, reflecting unfavorably on the integrity of the employer.)

Matter of Markowitz, 94 A.D. 2d 155

Claimant had worked for approximately 15 years as a budget and fiscal analyst for the Human Resources Administration of the City of New York when he was discharged effective April 29, 1981. The duties that his position entailed included reviewing and developing budget proposals, formulating policies and procedures for funding of community programs and monitoring grants and expenditures by his agency. His termination was a consequence of certain incidents which led to his being indicted, pursuant to l8 U.S.C.201 (subd. [b]), on 10 felony counts of bribing a public official in connection with immigration matters while representing aliens. Following a jury trial, he was ultimately convicted of 10 counts of the lesser felony of knowingly giving gratuities to a public official in violation of l8 U.S.C. 201 (subd. [f]) and sentenced to nine months' imprisonment and three years' probation. After he served 11 weeks in prison on these convictions between August and November of 198O, he returned to work for the municipal agency, which instituted administrative hearings, pursuant to section 75 of the Civil Service Law, seeking his removal for misconduct. At the conclusion of these hearings, the commissioner of the agency decided that claimant should be dismissed from his position because he had been convicted of a Federal crime involving moral turpitude, and claimant was informed of this decision by letter dated April 29, 19S1. He subsequently filed an applicat1on for unemployment insurance benefits, and it is the board's approval thereof which the employer and the Commissioner of Labor now challenge on this appeal.

We hold that the board's decision should be reversed, and in so ruling we recognize that generally a claimant is disqualified from receiving benefits as a result of misconduct only if his misconduct was "in connection with" his employment (see Labor Law, §593, subds. 3,4; Matter of Hunt [General Elec. Co - Ross], 84 A.D. 2d 622; Matter of Gill [New York Tel. Co. - Ross], 78 A.D. 2d 749). Upon this question it should likewise be emphasized, however, that an employee also has an obligation, even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and that he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation (see Matter of Zazycki v. City of Albany, ___A.D. 2d ___ [May 26, 1983]; Ann., 89 ALR 2d 1090).

Here, it seems apparent from an examination of the record that claimant's actions which resulted in his felony convictions did not directly relate to his employment in the manner commonly found in most unemployment insurance claims. Nonetheless, he was concededly employed as a civil servant with a public trust by a government agency which, being directly accountable to the taxpaying citizenry for its support, must necessarily maintain the highest standard of integrity and incorruptibility. Moreover, claimant stands convicted of engaging in the felonious corrupting of a public official during the period when he was employed in a sensitive position wherein it was his responsibility to exercise discretionary over financing and budgetary matters for the agency. Given these circumstances, the continued presence in a responsible position at the agency of a convicted felon, such as claimant, would constitute a genuine threat to the integrity of the agency and also reflect unfavorably upon the agency in the eyes of the general public. Accordingly, in our judgment, claimant's conduct, which evinced a conscious and intentional disregard of standards of behavior which his employer had a right to expect of him, mandates a determination that he was guilty of misconduct in connection with his employment, as a matter of law, so as to disqualify him from receiving unemployment insurance benefits.

The decision should be reversed, without costs, and the employer's objection to claimant's entitlement to benefits should be sustained.

COMMENTS

1. In the present case the nature of claimant's employment required a public image of "integrity and incorruptibility." The claimant's continued employment would constitute a threat to the integrity of the agency.
2. Prior decisions have established additional guidelines as to the type of off duty conduct which violates standards of behavior an employer may reasonably require of employees. Disqualification for misconduct may be appropriate under the following conditions:
1. The claimant, entrusted with the collection, distribution, use or care of the employer's money or other property, commits an off duty act of larceny (e.g., shoplifting A.B. 267,998).
2. The claimant may present a risk to the health or safety of customers or co-workers, such as a deliveryman convicted of an off duty crime against the person of another (e.g., assault, rape, A.B. 214,704; A-750-1807).
3. The claimant is under a special duty of care to the employer's customers --- for example, to patients in a hospital or nursing home, school children, travellers on a common carrier, or hotel guests and commits an off duty act of moral turpitude which shows an indifference to the health or safety of others {e.g., arson - A.B.236,230).
1. Acts committed off the job need not result in criminal conviction to constitute misconduct. In another recent case, the court found a claimant guilty of misconduct when during an off-hours cocktail party given by the employer, claimant became obscene and abusive and physically threatened his supervisor. (Matter of Caryl,___ A.D. 2d___, 8/4/83)
2. If claimant's off duty act is or may be a felony, Procedure III 6226 regarding criminal act disqualification should be followed.

 

A-750-1947

Index 1175-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 12, 1983

Interpretation Service - Benefit Claims
MISCONDUCT
Relations with Fellow Employees

FIGHTING ON THE JOB

Fighting on the job in violation of an employer rule is misconduct regardless of who initiates the fight, if the claimant has an opportunity to withdraw from the dispute but does not do so.

A.B. 339,308; A.B. 334,700

FINDINGS OF FACT: Claimant R.R., was employed as a security guard for approximately two years. Claimant J.M., was employed as a security guard for approximately three and one-half years. The claimants were scheduled to be on duty the evening of March 19, 1983 in the employer's museum. Prior to going on duty, R.R. spoke with his sergeant and conveyed misgivings about working with J.M. that night. As a result of this, the sergeant spoke to the claimants and informed them of the employer's rule against fighting. He told them that any violation of the rule would result in their discharge. Shortly thereafter, while in the dining room, the claimants became involved in a verbal discussion which resulted in yelling and harsh words being exchanged. The argument continued as they proceeded to the computer room. During the yelling and screaming in the computer room, each claimant spat at one another. This led to a physical altercation with both combatants throwing punches. As a result of this incident, the claimants were discharged effective May 19, 1982.

OPINION: The credible evidence now before the Board establishes that both claimants violated the employer's rule forbidding fighting on the premises, of which they were aware. Each significantly participated in the verbal argument and escalation thereof. It is significant that the altercation began in the dining room and continued down the hallway into the computer room. At any time, either claimant had the opportunity to discontinue the argument but chose not to do so. Under these circumstances, we reject each claimant's contention that he acted solely out of self-defense and we find that their actions constitute misconduct under the Law.

DECISION: The initial determination of the local office holding claimant R.R., eligible to receive benefits effective March 22, 1982 without any disqualifying conditions is overruled. The employer's objection is sustained. Claimant R.R. is disqualified from receiving benefits effective March 19, 1982 because he lost his employment through misconduct in connection therewith. No unemployment insurance benefits can be paid to claimant R.R. until he has subsequently worked for an employer not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and earnings therefrom will not count.

The decision of the administrative law judge filed August 12, 1962 (A.L.J. 82-90739) is reversed.

The initial determination of the local office disqualifying claimant J.M. from receiving benefits effective March 20" 1982, because he lost his employment through misconduct in connection therewith, is modified to be effective March 19, 1982, and as so modified, is sustained.

The decision of the administrative law judge filed April 27, 1982, (A.L.J. 82-10589) is reversed.

COMMENTS

1. It is well established that a claimant who initiates a physical altercation with a co-worker, a supervisor or a customer in violation of an employer rule forbidding fighting, commits misconduct.
2. On occasion a claimant may be drawn into a fight involuntarily. Under such circumstances, the claimant has an obligation to withdraw from the fight at the first opportunity. The Appeal Board has previously held that it is immaterial who strikes the first blow if, once the fight commences, neither employee is willing to abandon it. (A.B. 319,018)
3. Escalating an argument is inappropriate behavior for the workplace. When a verbal dispute threatens to become physical" one means of avoiding physical confrontation is to seek assistance from a supervisor. Failure to do so, thus allowing a fight to ensue, is misconduct. (A.B. 345,987)
4. Not all physical fights allow a person to retreat. A claimant will not be subject to disqualification if (s)he fights solely out of self-defense. (A.B. 320,635) The claimant acts in self defense when (s)he
1. neither initiates nor provokes the physical altercation,
2. has no available retreat once it begins,
3. reasonably believes returning blows is necessary to avoid suffering additional, serious harm, and
4. responds to the attack with no more than the minimal degree of force necessary to disengage from the fight.

 

A-750-1948

Index 1130-12
1190-5
1610-9

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 12, 1983

Interpretation Service - Benefit Claims
MISCONDUCT
Behavior off job, Other offenses
VOLUNTARY SEPARATION
Actions leaving employer no choice

LOSS OF DRIVER'S LICENSE

A claimant discharged for failing to maintain a valid driver's license, a necessary condition of employment, is not subject to disqualification when the loss of the license is not caused by the claimant's act. There is no misconduct or voluntary separation ("provoked discharge") unless the loss of employment results from the claimant's volitional act or omission.

A.B. 343,898

FINDINGS OF FACT: Claimant worked as a garbage collector for a municipality for approximately 21 months beginning in December, 1980. A condition of his hire and of continued employment was that he have and maintain a valid driver's license. In September, 1982, it came to the employer's attention that the claimant had lost his driver's license in May, 1982, after he was convicted of driving an uninsured vehicle. He was thereupon discharged effective September 17, 1982. Claimant had already appealed the motor vehicle conviction. In October, 1982, claimant conclusively established that he had, in fact, paid an insurance premium to a broker who was later convicted of misappropriating auto insurance premiums. Claimant's conviction was reversed and his license was restored. During the period May, 1982, through his last day at work, claimant was not required to drive any of the employer's vehicles.

OPINION: The credible evidence now before the Board establishes that claimant was discharged for his failure to maintain a valid driver's license. The evidence also establishes, however, that claimant's loss of license was due ultimately to his victimization by an unscrupulous insurance broker, and not to any failing on his part. Significantly, the claimant did not drive any of the employer's vehicles during the period that he was without a license. There has been no showing that claimant did not make a diligent effort to protect his license; on the contrary, it appears that claimant was able to establish that he had timely made the required insurance payment, and, therefore, prevailed in his motor vehicle department proceedings, although after his discharge. Accordingly, we conclude that the claimant's loss of employment was not due to misconduct on his part.

DECISION: The initial determination of the local office is sustained. The employer's objection is overruled. The decision of the administrative law judge is reversed.

COMMENTS

1. It is a longstanding principle that if a claimant's conduct prohibits the employer from continuing the employment and leaves the employer with no choice but to dismiss the claimant, there is a voluntary leaving of employment without good cause. (Matter of Donahue, 33 A.D. 2d 848; A-750-l720, cab driver loss of license; Matter of Keenan, 51 A.D. 2d 596; A-750-1804, residency requirement; Matter of Malaspina, 309 N.Y. 413, aff'g 285 App. Div. 564; A-750-l286, contract violation; Matter of Dounn, 71 A.D. 2d 746; A-750-1887 (Rev.), violation of Securities and Exchange Commission regulations)
2. That principle does not apply in the present case because the claimant's loss of license did not result from the claimant's actions but from the insurance broker's malfeasance.
3. In another case, the Appeal Board found there was no voluntary leaving of employment (provoked discharge) by a claimant discharged due to loss of union membership for failure to pay dues arrears. The National Labor Relations Board found the claimant had been wrongfully discharged because the union did not inform the claimant of the period of arrears and the amount owed, a violation of federal law. (A.B. 341,860)
4. These cases demonstrate the importance of careful and detailed fact finding to support a determination of voluntary leaving of employment by provoked discharge. Three conditions must be established: 1) The claimant must have failed to comply with a condition of employment, 2) the reason for non-compliance must have been within the claimant's control, and 3) the employer must have had no option but to terminate the claimant's employment.

 

A-750-1949

Index 1105 D-5
1205 D-5
1480 C-3
1605 D-7

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

January 6, 1984

Interpretation Service - Benefit claims
MISCONDUCT
REFUSAL OF EMPLOYMENT
TOTAL OR PARTIAL UNEMPLOYMENT
VOLUNTARY LEAVING OF EMPLOYMENT

MILITARY RESERVE - WEEKLY DRILLS

Members of the Reserve Component of the Armed Forces of the United States are totally unemployed while engaging in weekly drill sessions. Participation in and pay received for such drills are neither employment nor remuneration, and may not be used to terminate a disqualification.

A.B. 344,489 - 344,490

FINDINGS OF FACT: Claimants are members of the United States Army Reserve and are required to attend weekly reserve meetings, for which they are paid. Claimant H.F. rendered such services on December 12 and December 15, 1982, for which he was paid more than $125. Claimant J.H., rendered such services on January 9, 1983, for which he was paid $80. He also earned $54 in other employment on January 3, 1983.

OPINION: The Board has previously held that members of a military reserve are not totally unemployed when they perform services at drills required as part of their reserve service, but that members of the National Guard are totally unemployed, despite rendering similar services for their units (A.B. 315, 271, 327,499, 337,928). Those decisions were predicated on Section 565.2 (c) of the Unemployment Insurance Law which excludes National Guard service from the definition of "employment." We have upon reconsideration of these matters, decided that National Guard members and reservists should be treated alike with respect to performing services at weekly drills. Although the Unemployment Insurance Law has no similar provision relating to service performed by members of the military reserves, it is clear that both reservists and National Guard members are members of the reserve components of the Armed Forces of the United States. (10 U.S.C. Sections 269,270). In addition, under federal law, both reservists and National Guard members are required to attend 48 annual paid drills. (10 U.S.C. Section 270; 31 U.S.C. Section 502). Under these circumstances, it is clear that while attending the 48 weekly drills mandated by federal law, both reservists and National Guard members perform similar activities. Accordingly, we conclude that they should be treated in the same manner for the purpose of determining whether they are totally unemployed and whether such services can be used to terminate a prior disqualification. We conclude that claimants were totally unemployed while performing their mandatory weekly drills and that the pay they received should not be considered for purposes of determining whether they earned more than the statutory weekly maximum under the Unemployment Insurance Law during any week. Any prior Board decisions that may be inconsistent with our decision herein will no longer be followed.

DECISION: The initial determinations of the local office are overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. In the past, members of the reserve components were considered to have rendered services in employment while engaging in weekly drill sessions, although members of the National Guard were not. The distinction may no longer be drawn. The Appeal Board has now held that reserve and National Guard members "should be treated in the same manner for the purpose of determining whether they are totally unemployed and whether such services can be used to terminate a prior disqualification."

2. This decision deals only with weekly drill sessions. Participation in annual field training usually of two weeks duration or longer, is "active duty" which renders a claimant not totally unemployed and unavailable for work. That period of employment and the compensation received therefor may be used to terminate a disqualification. (A-750-l907)

3. See Special Bulletin A-7l0-36 (Revised December 3, 1999).

4. Interpretation Service Index rule A-750-66 is obsolete and shoud be so marked.

 

A-750-1950

Index 1120 #2
1152-4

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

April 10, 1984

Interpretation Service - Benefit Claims
MISCONDUCT
Acknowledgement and Agreements
Alcohol and Drugs

FAILURE TO COMPLY WITH A CONDITION OF PROBATION

Failure to attend a drug abuse treatment and counselling program, in violation of a condition of probation imposed after a formal disciplinary hearing for drug related absenteeism, is misconduct.

Matter of Restifo, 88 A.D. 2d 1045

Appeal from that part of a decision of the Unemployment Insurance Appeal Board filed October 7, 1981, which overruled the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits because he lost his employment due to misconduct.

The following facts are undisputed: Claimant worked as a garage helper for the New York State Office of General Services for approximately three and one-half years, ending in March, 1981. On October 1, 1980, the employer notified claimant of its intention to discharge him because he had submitted five falsified physician's statements covering eight days of absence from work. Claimant filed a grievance, which was resolved by a disciplinary settlement agreement with the employer, under the terms of which he admitted the falsifications, was reinstated in his job, but was placed on probation for one year. One of the conditions of his probation was that during the entire year he would participate in a specified drug abuse treatment and counselling program. Claimant only attended the treatment program for one month. Upon learning of this violation of the terms of the settlement agreement, his employer discharged him. Claimant then applied for unemployment insurance benefits but was initially ruled disqualified on the alternate grounds that he lost his employment due to misconduct and voluntarily left his employment without good cause. The Administrative Law Judge overruled the Commissioner's disqualification on the basis of misconduct but sustained disqualification on the alternate ground of voluntarily leaving without good cause. The Appeal Board determined that claimant was not rendered ineligible from receiving benefits either because he voluntarily left employment or was guilty of misconduct, holding that claimant's leaving the counselling program was a matter of poor judgment rather than misconduct. Only the Board's determination concerning misconduct has been appealed.

Misconduct exists if a claimant's conduct is "detrimental to the employer's interest or in violation of a reasonable work condition" (Matter of DeGrego [Levine], 39 NY 2d 180, 184). Clearly the disciplinary settlement agreement was a work condition - one, in fact, specifically created for claimant in order to give him a chance to be reinstated in his job. Claimant was fully aware of the agreement, and it was approved by his union. Participation in the drug abuse treatment and counselling program for a full year was an essential and mandatory provision of the disciplinary settlement agreement. Clearly, this work condition was reasonable - indeed, more than reasonable - in that it was designed to help claimant overcome a substantial medical problem that was seriously affecting his ability to hold a job. Claimant admitted that he stopped going to the drug abuse treatment and counselling program after a month and that he did so without discussing this decision with either his employer or his drug counsellor. The Board's determination, that claimant's admitted, unilateral decision to discontinue the treatment program was merely poor judgment, is erroneous and is not supported by substantial evidence. Claimant's violation of his employer's directive which was embodied in the condition of probation in the disciplinary settlement, with full knowledge of the consequences thereof, was far less justifiable as a mere mistake in judgment than the violation held by us to constitute misconduct in Matter of Mclntee (National Ambulance and Oxygen Serv. - Ross) (64 AD 2d 1003). Therefore, he is not eligible for benefits (Labor Law, §593).

Decision reversed, without costs, and alternate initial determination of Industrial Commissioner disqualifying claimant from receiving benefits due to misconduct reinstated.

COMMENTS

1. In the present case the claimant's continued employment was contingent upon his participation in a drug abuse treatment and counselling program. The court found this was a reasonable condition of employment "in that it was designed to help claimant overcome a substantial medical problem that was seriously affecting his ability to hold a job." The claimant's failure to participate was misconduct.
2. Alcoholism is a form of drug addiction. Thus, an alcoholic who refuses assistance offered by the employer as a condition of continued employment as part of a formal disciplinary settlement is also subject to disqualification.
3. The rule of this release and the comments above apply only to legitimate treatment programs. A claimant is not required to participate in experimental programs, nor to accept treatment potentially hazardous to his/her physical or mental health.
4. Although this case dealt with drug abuse, it involves the integrity of disciplinary settlements. Its principle applies to any reasonable condition imposed as part of a formal settlement.

 

A-750-1951

Index 1460 A-14

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

May 18, 1984

Interpretation Service - Benefit Claims
Total or Partial Unemployment
Payments Without Work

DESIGNATION OF VACATION PERIOD

A provision in an employer's manual providing for the lump sum payment of accrued vacation upon an employee's termination and the allocation of the payment to the period following the last day of employment is not a designation of a paid vacation period within the meaning of §591.3 of the Unemployment Insurance Law.

A.B. 352,269A

FINDINGS OF FACT: We are in agreement with the facts as found in our prior decision in this mater (Appeal Board 347,879). Those facts were as follows:

The claimant was employed as a controller from May 28, 1974 through March 11, 1983, when he was discharged. The claimant had accumulated a three-week vacation period at the time his employment ended. He received a lump sum payment from the employer to cover the period March 21, 1983 through April 8, 1983. Thereafter, the claimant received severance pay at his full salary from the week ending April 15, 1983 through the week ending June 3, 1983.

The employer's operating procedure manual provides the following in regard to its vacation plan policy:

"Upon termination, any unused vacation time will be paid to the employee. If an employee should leave SWS employment for any reason, or is released by the company, the vacation period agreed upon will follow the last day of employment irrespective of any prior election by the employee or designation by the company."

OPINION: Section 591.3 of the Unemployment Insurance Law provides:

3. Vacation period or holiday, (a) no benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under Section five hundred twenty two of this article.

(b) the term "vacation", 1/ as used in this subdivision means the time designated for vacation purposes in accordance with the collective bargaining agreement or the employment contract or by the employer and the claimant, his union, or his representative. If either the collective bargaining agreement or the employment contract is silent as to such time, or if there be no collective bargaining agreement or employment contract, then the time so designated in writing and announced to the employees in advance by the employer is to be considered such vacation period.

1/ Appeal Board decision is reported as issued. Section 591.3(b) correctly reads:
'The term "vacation period" ...'

Upon review of the applicable case law, we have determined that our prior decision in this matter was erroneous. In Matter of Walker, 28 AD 2nd 256, the Appellate Division has occasion to rule upon the issue of what constitutes a paid vacation within the meaning of Section 591.3 of the Law. In that case, the employer's manual provided: "If you should leave the. . .employment for any reason, or you are released by the company, the vacation period agreed upon will follow the last day of employment irrespective of any prior election by you or designation by the company." The similarity between that clause and the operating procedure manual clause at issue herein is apparent. The Court in Walker, in concluding that the subject clause was not legally sufficient to create a vacation period within the meaning of Section 591.3 of the Law stated that stated that". . .the payments bear no relation whatsoever to normal vacations and vacation payments, which accrue on an annual basis. Neither do they bear any relationship to the near universal concept of a vacation as a respite from work, proposed for rest, relaxation and personal pursuits, with the almost invariable correlary of a return to work at the end of the period . . The contention that all the benefits of the employment relationship continued during the so-called vacation period overlooks one important and unusual concomitant - the reasonably to be anticipated right to return to the job after the respite from work."

We are of the opinion that the Walker decision is dispositive of the issue now before us. To the extent that prior Appeal Board decisions have reached contrary results, we will no longer follow them.

DECISION: The decision of the Board filed December 21, 1983 (Appeal Board 347,879) is hereby rescinded.

The initial determination of the local office is overruled. The decision of the administrative law judge is affirmed.

COMMENTS:

1. This decision reverses the longstanding holding that an employer's policy designating the period following the last day of employment as a "vacation period" satisfies the requirements of §591.3. Such policy does not in and of itself establish "a paid vacation period;" the employer's payment for unused vacation time does not make the claimant ineligible for benefits.

2. This case should be distinguished from those in which a collective bargaining agreement or employer policy establishes a specific period (e.g. the first week of July) as the vacation period for all employees. Such agreement or policy does establish a "vacation period," and claimants who receive payment for such period are ineligible for benefits.

 

A-750-1952

Index 1610-10
1625-6

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 13, 1984

Interpretation Service - Benefit Claims
VOLUNTARY SEPARATION
Actions leaving employer no choice
Corporate officer or stockholder

Loss of Professional License

A corporate officer whose license is revoked due to professional misconduct, and who cannot continue to operate the corporation without the license, loses employment through voluntary leaving without good cause.

A.B. 344,588

FINDINGS OF FACT: Claimant was employed as a physician and microbiologist for a professional corporation of which he was the sole officer and owner. The corporation which claimant formed in 1979 was engaged in the practice of medicine and in the operation of a microbiology lab. Claimant's duties were divided equally between practicing as a physician and working as a microbiologist in the lab. He employed a few technicians, but was the only licensed physician. Claimant's license as a physician was revoked on April 19, 1982 by order of the Commissioner of Education of the New York State Department of Education after claimant was found guilty of professional misconduct in that he inappropriately prescribed drugs and provided improper treatment to patients. Claimant could not continue operation of the corporation after his license was revoked because the law requires that a licensed physician supervise the microbiology work in the lab. Claimant contacted several licensed physicians in an attempt to have them come into the corporation so that the corporation could continue. Claimant was unsuccessful in his endeavor because the physicians did not want the notoriety of being associated with someone whose license was revoked. Claimant therefore ceased working for the corporation on June 30, 1982 and commenced steps to dissolve the corporation, which was completed on November 4, 1982. From July 1 through November 4, 1982, claimant performed no services for the corporation except for consultations with his accountant concerning the dissolution.

Claimant filed an original claim for benefits effective July 5, 1982, and was required to report to the local office every Monday. He duly received the initial determination mailed July 22, 1982 disqualifying him from receiving benefits and notifying him that if he requests a hearing he must continue to report on his assigned day. Claimant did not report to the local office from July 26, 1982 until August 19, 1982, when he requested a hearing, because he had not decided whether he wanted to appeal. He did not inquire of the local office whether he must report during this period.

OPINION: The credible evidence establishes that claimant's employment ended on June 30, 1982 because his license to practice medicine was revoked. The corporation was unable to find a licensed physician to supervise the microbiology work as was required by law. Claimant was not discharged and, therefore, did not lose his employment due to misconduct. His loss of employment came about due to a voluntary leaving of employment without good cause by provoking his discharge in that his license was revoked (See Matter of Malaspina, 309 NY 413 and Matter of James, 34 NY 2d 491). Claimant could not have continued operating the corporation because his license was revoked and it is because of this that his job ended. Accordingly, we find that claimant's loss of employment constitutes a voluntary leaving of employment without good cause.

Claimant failed to report to the local office from July 26 until August 19, 1982 because he had not yet made a decision as to whether he wanted to request a hearing. He did not inquire at the local office as to whether he must report during this period. Claimant was instructed that he must report to the local office if he requests a hearing on the determination that was mailed to him on July 22. Accordingly, we find that effective July 26 through August 1, 1982, claimant failed to comply with reporting requirements and effective August 2, through August 15, 1982 he failed to comply with registration requirements.

DECISION: The initial determination of the local office disqualifying the claimant from receiving benefits effective July 1, 1982 because he lost his employment through misconduct in connection therewith is overruled.

The initial determination disqualifying him effective the same date because he voluntarily left his employment without good cause is sustained.

The initial determinations of the local office holding claimant ineligible effective July 26, through August 1, 1982 because he failed to comply with reporting requirements and effective August 2 through August 15, 1982 because he failed to comply with registration requirements are sustained.

The decision of the administrative law judge is modified accordingly, and, as so modified, is affirmed.

COMMENTS

1. This decision reaffirms the principle established by the courts that a claimant discharged for volitional acts making continued employment impossible pursuant to law, governmental regulation or collective bargaining agreement voluntarily leaves employment without good cause, (Matter of Malaspina, 309 NY 413; A-750 1286; Matter of Dounn, 71 Ad 2^nd 746; A-750 1887) and applies it to corporate principals.
2. In the present case, the claimant, the sole officer and owner of a professional corporation operating a microbiology lab and private medical practice, could not lawfully continue in business following revocation of his license to practice medicine. The loss of license, and consequent loss of employment, resulted from actions within the claimant's control. Therefore, a disqualification for voluntary separation applies, notwithstanding the claimant's unsuccessful attempt to hire another licensed physician to oversee the lab work.
3. An alternative determination of misconduct may be appropriate depending upon the nature of the act causing the revocation of the claimant's license. Also, investigation for a possible determinat1on under Section 593.4 (Criminal Acts) may be appropriate, if the act constitutes a crime. See Procedure III 6226

 

A-750-1953

Index 755E.4
765.13
790.7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

SEPTEMBER, 1984

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restrictions of Employment
Union Considerations

TRANSFER OF UNION LOCAL

A claimant's refusal to transfer membership from the union local serving the labor market in which (s)he last worked to one serving the area in which (s)he resides does not make the claimant unavailable for employment unless it can be shown that job prospects are better with the new local.

A.B. 343,247

Findings of Fact: The claimant, a laborer, lost his employment under non-disqualifying conditions. He filed an original claim for benefits effective February 1, 1982, and an additional claim for benefits effective November 15, 1982. He was not a member of the union local in the city in which he reported to the local office, but belonged to the local in another area near his last job site. Transferring his membership from the union local near his job to the local nearer his home would have destroyed his chance of being recalled to work at his last job. He had reason to expect that his recall was imminent. There were no suitable job openings or prospects in the other city. If he were to transfer his membership, he would be at the bottom of the seniority list with the local nearer his home.

Opinion: The credible evidence establishes that claimant, whose prospects for obtaining employment in the city near where he lived were not good, sought employment through his union local in the area of his last employment. There is no evidence that his chances of employment in his nearby city were superior to those in the area of his last job, to which he expected to be recalled shortly. His testimony to the contrary has not been rebutted. The initial determination in this case held that the claimant was not available for employment because he refused to transfer his union membership to another local. Such a transfer would jeopardize his chances of recall through his current local and place him at the bottom of seniority with the new local where there are no job prospects. Since there is no showing that the transfer would do anything other than decrease his chances of employment, we find his refusal to be reasonable and it is no indication that he is not attached to the labor market. Under these conditions, we conclude that claimant was available for employment during the period in issue.

Decision: The initial determination of the local office is overruled. The decision of the administrative law judge is reversed.

 

 

COMMENTS

1. Whether a claimant should be expected to transfer membership from one union local to another to retain eligibility is dependent upon a variety of factors. The Appeal Board noted three in its decision: likelihood of job recall, union seniority rules and a comparison of job opportunities in the geographical areas.

 

2. This rules is consistent with §596 of the Unemployment Insurance Law which provides that "a claimant shall file a claim for benefits at the local state employment office serving the area in which he was last employed or in which he resides . . ." Had the claimant in the present case chosen to file in the area of his last employment no question of union affiliation would have arisen. A claimant may not be penalized for choosing to register for benefits at the local office serving the claimant's home.

 

3. In the present case, the claimant had commuted from home to the more distant labor market and was prepared to continue to do so. A claimant who relocates must be willing and able to work in the area served by the former local, or to transfer affiliation to a nearby local which has reasonable job prospects.

 

A-750-1954

Index 1605 A-9

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

November 9, 1984

Interpretation Service -Benefit Claims
VOLUNTARY SEPARATION
Voluntary or involuntary

CHOICE OF TEMPORARY ASSIGNMENTS

A claimant who, given the option of accepting employment for a three week or six-week period chose a three-week assignment, is not subject to disqualification for voluntarily leaving employment when at the expiration of three weeks there was no further work available.

A.B. 353,397

FINDINGS OF FACT: The claimant worked as a food service worker in a public school system for approximately eight and one-half year, until July 22, 1983. She filed an original claim for benefits on July 25, 1983. In March, 1983, the employer had notified the claimant and certain co-workers that work would be available during the 1983 summer program, which commenced at the end of the 1982-1983 school year, when the current term of employment ended. Each worker had the option of signing up for three weeks or six weeks of work. Because of her seniority, claimant was in a preferential position and could have obtained six weeks of employment. She chose to work three weeks ending July 22, 1983, although she could have worked into August, 1983.

OPINION: The credible evidence establishes that claimant accepted an assignment to run through July 22, 1983. That was the date on which her employment ended, according to her contract with the employer. As of that time, no further work was available to her. Accordingly, we conclude the claimant did not voluntarily leave her employment on July 22, 1983.

DECISION: The initial determination of the local office disqualifying claimant from receiving benefits effective July 23, 1983, is overruled. The decision of the administrative law judge, insofar as appealed from, is reversed.

Comments

1. It is a long established principle that a claimant, given a choice of dates for terminating employment, does not voluntarily leave employment by choosing the earlier date (A.B. 141,874; A-750-l687). In the present case the choice was made before the employment began.

2. A claimant who chooses the shorter of two proffered assignments should be questioned regarding the reason for doing so, as the reason may bear upon the claimant's availability for employment.

 

A-750-1956

Index No. 1615-8
1705-4

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 6, 1984

INTERPRETATION SERVICE – BENEFITS CLAIM
VOLUNTARY SEPARATION
Anticipation of discharge or layoff
Reduction in force situations

REDUCTIONS IN FORCE

When an employee has been informed by the employer that unless there is an immediate reduction in force the employer will discharge its entire staff and permanently discontinue business, the employee’s acceptance of a financial incentive to accept voluntary layoff is a voluntary separation with good cause.

A.B. 351,883

FINDINGS OF FACT: The claimant was employed as a paper handler by a large metropolitan newspaper from May 1953 until September 30, 1982. He was a member of a union having contractual relations with the employer and the contract had a no lay-off clause.

By November 1981, the employer’s annual operating losses exceeded $13 million. It projected a loss of at least $30 million in 1982 and again in 1983 and 1984. The projected loss for 1985 was in excess of $40 million. The employer was moved by these projections to draft a plan for restructuring its entire operation, which included substantial concessions from eleven unions with whom it had collective bargaining agreements. The employer determined that, in order to remain in operation, an effort must be made to bring about a saving in labor costs of at least $50 million per year. Failing that, the employer would be compelled to go out of business. With this goal in mind, the employer met extensively with the representatives of the various unions from May through August 1982, in an effort to achieve the threshold requirement for survival. To open the way for negotiations, the employer made all of its books, records, and forecasts available to the accounting firm chosen and retained by the unions. After examination, the unions’ accounting firm verified that the employer’s figures and projections were accurate. On July 16, 1982, while discussions were going on with the respective union representatives, the employer sent a letter to all of its almost 5,000 employees expressing concern for the survival of its newspaper and mentioning, in passing, that negotiations were underway to eliminate almost 1500 jobs at the paper. Near the end of July 1982, the employer and seven unions reached accords, but agreements had yet to be concluded between the employer and the four remaining unions. In a second letter to all of the employees dated July 30, 1983 (sic), the employer again detailed the significance of the negotiations to the survival of the paper. By the end of August 1982, the employer achieved agreements with the remaining unions. The immediate result of the accords with all eleven unions was that 1500 positions would be eliminated.

The process for staff reduction was recited in the renegotiated collective bargaining agreements, called for a compensation payment, or a "buy-out" as it came to be called under a complex formulation predicated upon seniority, age, and years of service.

All employees were invited to participate in the buy-out if eligible. An eligible employee was someone described in the new agreements as a full-time employee who was actively employed and who did not have to be replaced and who worked a specified percent of his/her workdays during the period commencing May 16, 1982, and ending June 15, 1982. The employer reserved the right to set the number of buy-outs in each title, or job description.

The claimant applied to participate in the reduction program and was accepted. He received the sum of $20,000. In exchange for participating in the buy-out, the claimant gave up, irrevocably, all rights to his job.

The claimant’s weekly benefit rate is $125. Effective October 18, 1982, he received a monthly pension of $153 per month from the employer. All contributions to the pension fund were made by the employer.

OPINION: The primary issues before the board are whether or not the claimant voluntarily left his employment and, if so, whether such leaving was for good cause under the Law. To properly review the case, we must examine the entire context in which the claimant’s separation from his employment arose. From the competent and credible evidence before us, we conclude that a mandatory reduction in force had to occur so that the employer could continue its business operation. Without an almost immediate reduction of nearly 1500 staff members, the employer’s business would have quickly ceased to exist. The employer and all of the various unions, including the claimant’s agreed to the legitimacy of the needed layoffs. What remained to be developed were agreements between the employer and the respective unions as to how the layoffs were to be allocated. There were a number of possible agreements, which could have been made. The unions and the employer could agree that the most junior employees must be laid off first. They could agree to let the employer have absolute discretion to choose who would be laid off. They could agree on a formula for random selection. They could also, as they did herein, allow each and every otherwise eligible employee to elect to participate in the layoff with the absolute right resting with the employer to either accept or reject any employee’s application to enter the reduction plan. The Commissioner of Labor has no apparent objection to any of the arrangements listed, except the last one, which allows the employee to participate in the employer’s discretionary allocation of the layoffs. Because there are elements of employee voluntariness here, it remains within the discretion of the Board to determine whether or not the voluntary leaving of employment by offering to personally participate was with good cause. If the unions had not agreed to participate in a reduction plan, almost 5,000 employees, including the claimant herein, would have quickly become unemployed with an accompanying acute industrial destabilization within part of the State of New York. The Legislature of the State of New York has expressed its policy and concern with the maintenance of existing business (Commerce Law Sec 100). The renegotiated labor agreements herein are in furtherance of that policy. It is not the Board’s position or intention to pass judgment on the provisions of the renegotiated collective bargaining agreements. In this context, we disagree with the judge’s conclusion that the claimant, by participating in the negotiated reduction plan, voluntarily left his employment for personal, non-compelling reasons and without good cause, thereby subjecting himself to a disqualification. We cannot ignore the fact that under all of the possible reduction plans described above, the instigating cause for the claimant’s separation was the employer’s legitimate and mandatory lay off requirement (Stanford v. California Unemployment Insurance Appeals Board, 147 Cal App. 3d 98).

Throughout all of the proceedings and all of the cases arising from this employer’s reduction plan, the Commissioner of Labor has contended that the claimant’s giving up the right to do his job by signing a buy-out agreement for which he received a monetary incentive when he could have continued working, was voluntary leaving of employment without good cause. In so doing, she relies on Matter of Fisher, 36 NY 2d 146, rev’g 43 AD 2d 753, rev’g Appeal Board 181, 289 and the Board decisions following Fisher (Appeal Board 339,997; 292,885; and 340,624). We find the instant case distinguishable from Fisher (supra). In that case, the employer was the United States Postal Service and was not facing imminent extinction. It was merely making a concerted effort to reduce its operating costs by cutting the size of its labor force. Moreover, unlike in the instant case, the claimant in Fisher did not receive letters from the employer predicting the demise of the United States Postal Service if a substantial reduction in force did not occur. We conclude that claimant herein was brought into the decision making process upon finding himself amidst historical circumstances and economic pressures which caused him to voluntarily leave his employment. Mandatory layoff was imminent and it is not within the province of the Board to determine how the layoffs are to be allocated (Stanford (supra)). Accordingly, under all of the circumstances herein and in keeping with the Board’s authority regarding interpretation of the provisions of the Unemployment Insurance Law (as reaffirmed by the Court in Fisher (supra)), we held that the claimant’s employment herein ended under non-disqualifying conditions because he voluntarily left his employment for personal but compelling reasons.

The provisions of Section 600.7 of the Unemployment Insurance Law require that a claimant’s benefit rate be reduced by the proportional amount of the employer’s contribution to the claimant’s weekly pension payment. It is established that the claimant received $153 per month as a pension and all contributions to the pension fund were made by the employer. Accordingly, we find that the claimant’s benefit rate must be reduced to $90 per week.

DECISION: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 1, 1982 because he voluntarily left his employment without good cause is overruled.

The initial determination of the local office holding that effective October 18, 1982, claimant’s benefit rate be reduced from $125 to $90 pursuant to Section 600.7 of the Law is sustained.

The decision of the administrative law judge is modified accordingly, and, as so modified, is affirmed.

COMMENTS

1. It is a well-established rule that a claimant who volunteers for indefinite layoff voluntarily leaves employment without good cause (Matter of Rivera, 29 AD 2d 582; Matter of Fisher, 36 NY 2d 146, A-750-1784; Matter of Violanti, 89 AD 2d 727, A-750-1932). The present case is distinguishable, however, in that the employer was committed to closing down all operations unless it achieved a significant reduction in force. If too few employees had accepted the immediate layoff, all employees, including the claimant, would have been involuntarily discharged shortly thereafter.
2. The rule of this release should be narrowly interpreted. It applies only to situations in which the employer has officially notified its workforce of its intention to cease operations unless it achieves a substantial reduction in force. Reliance on rumors, "the grapevine," speculation, even if by a supervisor, etc., does not afford good cause for accepting a voluntary layoff.

 

A-750-1958

Index No. 1460 A-15

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 13, 1985

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Payments without work

DESIGNATION OF VACATION PERIOD: EMPLOYER-EMPLOYEE AGREEMENT

Where a collective bargaining agreement provides that each employee may elect as a vacation period either the annual plant shutdown or another period of the individual’s own choosing, and a claimant on layoff status is not offered the opportunity to make such choice, the claimant’s receipt of vacation pay for the period of the plan shutdown is not a designation of paid vacation period within the meaning of §591.3 of the Unemployment Insurance Law.

A.B. 354,517A

FINDINGS OF FACT: The claimant was employed as a radial drill operator for a manufacturer for about six years to December 17, 1982, when he was laid off. He filed an original claim for benefits effective December 20, 1982 and was found eligible to receive benefits.

The claimant was a member of a union in contractual relations with the employer. Under the collective bargaining agreement, the employer was authorized to close the plant for a two-week period during the summer, provided it notified the union in advance. Pursuant to this provision, the employer designated the period from July 4, 1983 through July 17, 1983, as the shutdown period. The employees were permitted to designate vacation periods other than the period when the plant was closed. On or about February 1, 1983, vacation request forms were distributed to the current employees. The employees were to return the form by March 1, 1983, and the employer would either approve or disapprove each vacation request. Since the claimant was on a lay off status, he did not receive the vacation request form and could not inform the employer of his choice for a vacation period. The claimant was entitled to vacation pay equal to two weeks and two days wages. The employer paid the claimant his accrued vacation pay on July 1,1983.

OPINION: We have determined to reopen this case for the purpose of the consistency of decision, since we have considered the issue of whether the employer’s shutdown of the plant from July 4, 1983 through July 17, 1983 constituted a paid vacation in a number of other cases. The credible evidence establishes that the employees were given the option to select the times when they wished to be on vacation. An employee could have a vacation period other than the period when the plant shutdown. The two-week shutdown of the plant provided for in the collective bargaining agreement was not a designation of a vacation period as required by the Labor Law. If the claimant had not been on a layoff status, he could have chosen a vacation period other than the period of the plant shutdown. The fact that the claimant was paid vacation pay on July 1, 1983 is not controlling. Accordingly, we conclude that the period July 4, 1983 through July 17, 1983 was not a paid vacation period under the Law, and that a claimant was eligible for benefits (see Appeal Board 349,654).

DECISION: The claimant’s application to reopen and reconsider the decision of the Board filed February 27, 1984 (Appeal Board 349,783) is hereby granted and the said decision is rescinded.

The initial determination of the local office is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

One of the ways in which a vacation period may be designated in advance is by agreement between the employer and employee. (§591.3[b]) In the present decision, the collective bargaining agreement’s reference to the plant shutdown did not create a designated vacation period because each employee had the option of choosing another vacation period entirely apart from the shutdown.

 

A-750-1962

Index No. 1665-4

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 10, 1985

INTERPRETATION SERVICE – BENEFIT CLAIMS
Voluntary Leaving
Part-time Employment

A claimant who leaves part-time employment after layoff from concurrent full-time employment does so with good cause when compelling reasons exist and such action is not based solely on the desire to collect unemployment insurance benefits.

A.B. 355,494

FINDINGS OF FACT: The claimant worked full-time as an announcer for a radio station and part-time as a medical assistance in a clinic. On March 9, 1984, after completing her day’s work at the clinic, she reported to a meeting at the radio station. Claimant learned at the meeting that she was being discharged because the station had decided to change its sound. On March 12, 1984, claimant called the clinic and reported that she would not be in to work because her son was sick. The claimant did not call or report to work at the clinic as next scheduled on March 16, 1984. She called the clinic and resigned from her position on March 19, 1984.

The child care center that the claimant used while working charged $25 a week and was available for full-time workers only. Other childcare facilities which she investigated were more expensive. The claimant took home about $45 a week from her part-time job at the clinic. She left her part-time job at the clinic because she could not afford her childcare and travel expenses.

OPINION: In this case, we are concerned with claimant’s separation from her part-time employment. The credible evidence establishes that the claimant had no intention of leaving her part-time job at the clinic until after she learned that she had lost her full-time job on March 9, 1984. Even though she called in her absence on March 12,she did not call or report to work at the clinic as next scheduled on March 16, 1984. This absence on March 16, 1984 was an affirmative indication that she had decided to abandon her employment at the clinic. We, therefore, conclude that she left her employment at the clinic effective March 16, 1984. We must now look to the circumstances of this separation to determine her eligibility for benefits.

The credible evidence establishes that the claimant left her part-time employment because she was no longer able to afford her childcare and travel expenses. She was required to stay home and care for her child. This case is distinguishable from Matter of Grandy (64 AD 2d 796) because claimant’s reason for leaving in this case was not solely to qualify for benefits. Accordingly, we conclude that she had good cause to leave her employment.

DECISION: The initial determination of the local office is overruled.

The decision of the administrative law judge is affirmed.

The issue of claimant’s availability for employment in view of her possible lack of suitable childcare arrangements is referred back to the local office for investigation and determination.

COMMENTS

1. This case is distinguishable from Matter of Grandy, 64 AD 2d 796, in that claimant quit her part-time employment because she could no longer obtain affordable childcare arrangements and not solely because of a desire to collect unemployment insurance benefits.
2. For a discussion of Grandy, see A-750-1862.

 

A-750-1963

Index No. 1605 E-2
1615-9
1145-2

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 11, 1985

INTERPRETATION SERVICE – BENEFIT CLAIMS
Voluntary Separation or Misconduct
Anticipation of Discharge or Layoff
Disciplinary Suspension

FAILURE TO FILE DISCIPLINARY GRIEVANCE

Failure to file a grievance, in response to proposed disciplinary action, is not tantamount to voluntary leaving of employment without good cause unless there is some accompanying affirmative act by the claimant signifying voluntary separation.

A.B. 359,061

FINDINGS OF FACT: The claimant worked as a maintenance man for a New York State facility from October 21, 1976 until May 16, 1984. On March 16, 1984, the claimant signed out on the attendance book of the employer at 4:10 p.m. but did not leave the employer’s premises until 4:30 p.m., his scheduled departure time. On March 16, March 23 and March 26, 1984, the claimant took time off from work after requesting permission from his supervisor. On March 26, 1984, the claimant’s supervisor told his subordinate not to leave the employer’s premises until further notification because a robbery had been committed. However, the claimant was not so informed and, after putting in a leave slip with his supervisor, he left at 3:30 p.m. On April 20, 1984, the claimant received a notice of discipline from the employer alleging that he had falsified his daily attendance record, that he had been absent without authorization and that he had been insubordinate. These charges were based on the incidents of March 16, March 23 and March 26. The disciplinary notice stated that the penalty to be imposed was termination of employment. The claimant was further advised that he had 14 days in which to file a grievance objecting to the notice of discipline. He did not file such a grievance. The claimant was discharged, effective May 16, 1984.

OPINION: The credible evidence now before the Board establishes that the claimant did not leave the employer’s premises before his scheduled departure time on March 16, that he did request time off from his supervisor on the days in question and that he was not told on March 26 not to leave the employer’s premises until further notification. The employer did not produce any witnesses with personal knowledge of these events. We are constrained to accept the claimant’s credible testimony on these matters as it was not contradicted by any testimony from witnesses with personal knowledge of the events. We also accept claimant’s uncontradicted testimony that employees did customarily sign the attendance sheet early and then leave the premises at the scheduled departure time and that employees also customarily took leave time after putting a leave slip on their supervisor’s desk if the supervisor was not available. Accordingly, we conclude that the claimant did not commit any deliberate act of misconduct.

The evidence also establishes that the claimant did not file a disciplinary grievance which he was entitled to under the collective bargaining agreement. In the absence of some affirmative act by the claimant, the failure to file such grievance is not considered to be a voluntary leaving of employment (Matter of LaRocca, 59 N.Y. 2d 83, Matter of Guerin, 88 A.D. 2d 1018). There being no such affirmative act by the claimant herein, we conclude that he did not leave his employment voluntarily.

DECISION: The initial determinations of the local office are overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. This case reinforces findings of the Appeal Board affirmed in Matter of LaRocca, 59 N.Y. 2d 683, that disqualification for voluntary separation is inappropriate in the absence of an affirmative act indicating voluntary leaving, such as a resignation. In LaRocca, claimant was advised by his union to accept a thirty-day suspension rather than pursue grievance procedures and face the possibility of permanent loss of employment.
2. The instant case is distinguishable from Matter of Cahill, 77 A.D. 2d 734, wherein the Court adopted the findings of the Appeal Board that claimant did not file a grievance and resigned in lieu of termination of employment. In Cahill the alternate determination of voluntary leaving of employment was proper because claimant Cahill actually resigned from his job rather than face termination.
3. In cases where disciplinary action results in suspension rather than termination and claimant resigns, a determination of voluntary leaving of employment without good cause is proper, because of resigning, claimant precludes the continuation of the employer-employee relationship. The same determination is to be made in other situations where the proposed discipline is less than termination and claimant fails to return to work after the imposition of the discipline.
4. Claims examiners are reminded that the primary issue to resolve in "discipline" cases is whether claimant committed an act of misconduct in connection with employment.

 

A-750-1964

Index No. 1525 A-6

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 15, 1985

INTERPRETATION SERVICE – BENEFIT CLAIMS
Insurance Booklet Alteration
Employment Service Reporting Date

ALTERATION – NO MOTIVE REQUIRED

If a placement office reporting date is altered while the reporting booklet is in claimant’s sole possession and control, the penalty for wilful misrepresentation is imposed despite the fact that claimant may have had no apparent motive for making the alteration.

A.B. 362,954

FINDINGS OF FACT: Claimant filed an original claim for benefits under non-disqualifying conditions. She last reported to the Employment Service on September 25, 1984. She was told to return to the Employment Service on December 19, 1984. That date was marked on the insurance jacket. Claimant forgot to return to the employment Service on December 19, 1984. When she reported to the local office on January 10, 1985, it was discovered that the date 12/19/84 on claimant’s unemployment insurance jacket had been altered to 12/13/84. The claimant’s unemployment insurance jacket had always been in the possession and under the control of the claimant from September 25, 1984 up to January 10, 1985, except for brief periods when in the possession of local office personnel. No employee of the Department of Labor made or authorized the alteration of the date.

OPINION: The credible evidence establishes that the claimant’s unemployment insurance jacket was in her sole possession and control when the reporting date was changed without authorization. She either made or was responsible for the alteration in the entry on such document. The fact that claimant may have had no apparent motive for altering the date on the unemployment insurance jacket is not controlling. Accordingly, we conclude that claimant made a wilful misrepresentation under the Unemployment Insurance Law.

DECISION: The initial determination of the local office holding that claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of 12 effective days was imposed as a penalty in reduction of her future benefit rights is sustained.

The decision of the administrative law judge, insofar as appealed from, is reversed.

COMMENTS

1. This case reaffirms a longstanding principle that so long as there is an unauthorized alteration which changes (or obliterates) claimant’s assigned reporting date, a wilful misrepresentation has occurred. As the Appeal Board has observed in the past, "it is impossible…to prove what went on in the claimant’s mind" (A.B. 142,525).
2. The same principles can be applied to alterations of entries other than reporting dates. The Appeal Board, in deciding the case of a claimant who reported late to the Job Service and subsequently erased the time of his late reporting as entered on his booklet, observed "The materiality of the entries which are altered, erased, or obliterated, in such document, are of no consequence in holding such acts to justify the imposition of a forfeiture penalty" (A.B. 143,953).

 

A-750-1965

Index No. 915 B-6

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 22, 1985

INTERPRETATION SERVICE – BENEFIT CLAIMS
Determination of Benefits
Amount of Reduction

CALCULATION OF PENSION REDUCTION

When reducing the U.I. benefit rate of a claimant because of receipt of a pension pursuant to a plan which provides for a choice of pension options, the reduction is to be made using the pension amount claimant actually chose to receive and not an amount claimant might have received had a different option been chosen.

A.B. 359,273

FINDINGS OF FACT: The claimant worked for a municipal Department of Parks from April 15, 1951 through April 11, 1983. Claimant subsequently worked during his base period from April 17 through September 1983 for a federal agency. Claimant was laid off and filed an original claim for benefits on September 19, 1983. Upon retirement from the municipality, the claimant was eligible to receive a pension of $1,487.48 a month. The claimant, however, selected a different retirement option available to him from the municipality which gave him $1,196.80 a month with survivor benefits to his wife upon his death. The lesser amount was used as a basis for the reduction in claimant’s unemployment insurance benefit rate in this case.

OPINION: The credible evidence establishes that the claimant is receiving a monthly retirement payment which is based on his previous work under a plan maintained by his base period employer. Accordingly, pursuant to Section 600.7(b) of the Law, claimant’s unemployment insurance benefit rate must be reduced.

The issue before the Board is the employer’s contention, adopted by the administrative law judge, that claimant’s unemployment insurance benefit rate should be reduced based on the weekly amount of pension benefits claimant could have received if he had selected the higher pension amount available to him under the employer’s plan. Section 600.7(a) of the Law provides for a reduction by the prorated weekly amount of a pension which the claimant "is receiving." The Law makes no provision with respect to how that amount is computed or selected. In past cases, the Board has interpreted this statute to mean that any reduction due to the receipt of pension benefits must be based on the pension amount actually paid to the claimant or an amount to which the claimant’s rights have been "established" under the Law. (Appeal Board 320,165; 343,175). We find no basis in Section 600.7 of the Law or in past case law for the reduction of claimant’s unemployment insurance benefit rate based on a projection of what the claimant might have received as a pension. Accordingly, we find the conclusion of the administrative law judge to be in error and not in accord with Section 600.7 of the Law. Therefore, the initial determination reducing the claimant’s unemployment insurance benefit rate from $170 to $32 must be sustained.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge, insofar as appealed from is reversed.

COMMENTS

1. This Appeal Board decision and a subsequent decision (AB 36,552A) emphasizes the fact that Section 600.7(a) of the Law provides for a reduction based on the pension amount a claimant "is receiving" and not what might have been received.
2. This Appeal Board rejected the position taken by the City of New York (as presented in Field Memorandum 15-84) wherein it argued that a pension reduction should be based on the highest pension amount that claimant could have received.
3. The City of New York has appealed this decision. Local offices are advised to scrutinize LO 15 replies from New York City, advise claimants of the information provided by the employer and determine the actual payment received (before any deductions). The benefit rate reduction should be based on the actual pension payment received.

 

A-750-1966

Index No. 1480-E3

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 22, 1985

INTERPRETATION SERVICE – BENEFIT CLAMS
Total or Partial Unemployment
Miscellaneous Activities

VOCATIONAL REHABILITATION TRAINING PROGRAM

Claimant who, after referral by the Office of Vocational Rehabilitation, participates in a training program of short duration operated by a non-profit organization, designed to assist in overcoming claimant’s disability and improve claimant’s chances of obtaining work, is totally unemployed despite the receipt of a minimal cash payment. Such payment should be regarded as an incentive designed to encourage the improvement of claimant’s skills. Attendance at such training does not result in being held unavailable for work.

A.B. 360,187

FINDINGS OF FACT: The claimant last worked as a clerk and lost that employment under non-disqualifying conditions. He filed an original claim for benefits effective May 14, 1984 and was held eligible to receive benefits. The claimant suffers from degenerative disc disease and was referred by the New York State Office of Vocational Rehabilitation to a rehabilitation program administered by R.S. Inc. The claimant entered such program on September 4, 1984. R.S. Inc. is a not-for-profit corporation engaged in the business of training the mentally and physically disabled, by working with their individual disabilities so that they may more readily obtain productive employment. Between September 4 and October 19, 1984 the claimant was trained to be an assembler. As a part of the training process the claimant received from R.S. Inc. small incentive payment based upon his production. Such payments, which ranged from $19 to $49 per week during his training period, were intended only to encourage the claimant to increase his productivity so as to make him a more desirable employee for a prospective employer. While in training the claimant was free to accept employment and, in fact, did seek employment. As a result of his participation in the training program, the claimant was able to obtain employment which began on October 22, 1984.

OPINION: The evidence establishes that at the behest of the New York State Office of Vocational Rehabilitation, the claimant enrolled in a training program with R.S. Inc. It is the contention of the Commissioner of Labor that the claimant’s participation in the rehabilitation program constituted employment in that the payments he received constituted remuneration, and that claimant’s attendance in the program hindered his search for employment and as a result he was also unavailable for employment. We disagree. We find that it was not the intention of the Legislature, nor is it the public policy of this State, that unemployment insurance benefits be denied to disabled claimants who enroll in a program designed to assist them in overcoming their disabilities and improving their chances to obtain employment. Clearly, Section 599 of the Labor Law, which deals with vocational and related training and the preservation of eligibility for unemployment benefits despite such training, establishes that it is public policy to allow participants in certain such programs to remain eligible for benefits when they are not actively in the labor market looking for work. However, we note, that we are foreclosed from ruling on the possible applicability of Section 599 in this case because the Commissioner of Labor did not choose to issue a determination either approving or disapproving the claimant’s training program for 599 purposes.

As for the issues at hand, the fact that the claimant received token payments from R.S. Inc. does not convince us that he was their employee and consequently not totally unemployed. The evidence establishes that such payments were purely incidental to the training program and should be regarded solely as an incentive designed to encourage the improvement of the claimant’s skills and consequently to improve his employability. Significantly, the claimant looked for work and was able to secure employment within seven weeks from the inception of his training. Accordingly, under the circumstances of this case, we hold that the claimant was totally unemployed and available for employment during the period of his participation in the vocational rehabilitation program.

To the extent that Appeal Board case number 139,586 holds to the contrary to our decision herein, we will no longer follow it.

DECISION: The initial determinations of the local office are overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. In this case the Appeal Board commented that a determination under Section 599 would have been appropriate. Even in the absence of Section 599 approval, claims examiners may consider such claimants available for work (A-750-1602).
2. Although not stated in the Appeal Board decision, deductions were made from claimant’s payments for Social Security (FICA), federal and state taxes. Although these are required deductions, we should consider the payments which ranged from $19.00 - $49.00 a week, as incentives. This range should be used as a guideline in adjudicating similar cases.
3. This situation must be distinguished from a sheltered workshop where a claimant receives payment (albeit below the minimum wage) for work performed. The main purpose of these workshops is not raining but to provide employment at the individual’s ability level.
4. It should be noted that these services would not constitute employment for entitlement purposes pursuant to Section 563.2(d)(1).

 

A-750-1967

Index No. 1700-4

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 23, 1985

INTERPRETATION SERVICE – BENEFIT CLAIMS
Voluntary Separation
Prospect of Other Work

VOLUNTARY LEAVING TO ACCEPT OTHER WORK

Voluntary leaving without god cause exists when claimant, who resigned a job because she had an offer of new employment to start on a specific future date, did not intend to accept the new employment.

Matter of T.J. Amber Jarvis

Claimant, a social worker, was employed by a medical center in a temporary capacity that was scheduled to terminate on December 10, 1982. On November 1, 1982, she submitted her resignation effective November 19, 1982, having accepted other similar employment scheduled to commence December 1, 1982. Claimant admits that between November 1 and November 19, 19982, she decided to pursue employment opportunities other than the employment that she was scheduled to commence on December 1, 1982; therefore, although she attempted to withdraw her resignation, she was not permitted to do so. Her last day of employment was November 19, 1982. On November 22, 1982, claimant applied for unemployment insurance benefits, indicating to the local office only that she lost her employment because it was "temporary" in nature. She did not disclose that she had resigned and that she could have continued working until December 10, 1982, or that she had decided not to accept the new employment that she had been offered.

The Administrative Law Judge (ALJ) affirmed the initial determination, effective November 20, 1982, disqualifying claimant from benefits because she voluntarily left her employment without good cause. Claimant was deemed to have been overpaid $125 in benefits, ruled to be recoverable, and her rights to future benefits were reduced by eight effective days because of her wilfully made false statement.

Claimant applied to reopen and reconsider the decision of the ALJ. The Unemployment Insurance Appeal Board granted claimant’s application to reopen and reconsider. Subsequently, the Board decided that on November 19, 1982, the termination date of claimant’s last employment, she had a validly existing offer of employment and that her intention at that time regarding whether to accept the new job was immaterial. Therefore, claimant was found to be separated from her employment under non-disqualifying conditions, and the determinations of the local office and the ALJ to the contrary and ruling the benefits paid to be recoverable were overruled. As to the issue of wilful misrepresentation, that initial determination was affirmed by the Board, but the penalty of a forfeiture of eight effective days was modified to four effective days. Upon application by the Commissioner of Labor, the Board reopened, reconsidered and adhered to its prior decision.

On this appeal by the Commissioner, it is urged that the decision of the Board does not have a rational basis and should be reversed. We disagree with the Board’s decision insofar as it ruled that claimant’s intention with regard to the acceptance of her new employment was immaterial when she left her old job on November 19, 1982, and that the only factor necessary for consideration was a valid, then-existing offer of other employment. In order for claimant to have left her employment under non-disqualifying conditions, she had to have left for good cause (Labor Law §593[1][a]). The only good cause that would attend her leaving under these circumstances was that, at the time she left, she intended to accept the new job that awaited her. If claimant’s resignation had been submitted in expectation of her discharge scheduled for December 10, 1982, it would constitute a voluntary leaving of employment without good cause (Matter of La Greca [Catherwood], 30 AD 2d 597). Furthermore, this court has affirmed without opinion Board decisions ruling that separation from employment after the refusal of an employer to withdraw a resignation upon a claimant’s request is a leaving of employment without good cause [see, e.g. Matter of Waltos (Levine), 39 AD 2d 644].

Bearing on the issue of claimant’s intent are her attempt to withdraw her resignation before leaving, her refusal to report to the new job, her filing for benefits on November 22, 1982 before the new job was scheduled to begin, her failure to disclose to the local office her resignation and offer of new employment, and her statement to the local office that her only reason for leaving was the "temporary nature" of the employment. These are factors that must be, but were not, considered by the Board in determining claimant’s intention. The element of intent is important here because these facts and circumstances differ from those of Matter of Curran (Levine) (50 AD 2d 681, revd on dissenting opn below 41 NY 2d 856), on which claimant relies and which the Commissioner attempts to distinguish. In Curran, the claimant, who left her employment one week before starting a new position that failed to materialize for lack of funding, was held to have had good cause for leaving and was ruled eligible for benefits. Significantly, the failure of the new position to materialize in Curran could in no way be attributed to any fault of the claimant. Here, however, the new position was at all times available to claimant if she wanted to accept it. Her intent in not doing so is not only relevant but critical to the issue of whether she left her employment under disqualifying conditions.

In view of the Board’s failure to consider claimant’s intent, a critical element in determining whether she voluntarily left her employment for good cause, the Board’s decision is irrational and must be reversed.

Opinion by CASEY, J., in which MAIN J.P., WEISS MIKOLL and YESAWICH, JR., JJ., concur.

Decision reversed, without cost, and matter remitted to the Unemployment Insurance Appeal Board for further proceeding not inconsistent herewith.

COMMENT

This case is distinguishable from Matter of Curran, 41 NY 2d 856, in which claimant was found eligible for benefits when she resigned her employment one week prior to the date on which she was to commence promised employment elsewhere. In the interim week, the claimant was informed by the prospective employer that the offer of employment was cancelled. In Curran, the failure of the new employment to materialize could in no way be attributed to any fault of the claimant.

In the instant case the new position was available to claimant at all times. Claimant chose not to accept it. The claimant’s attempt to withdraw the resignation, her refusal to accept the new job and her filing for benefits before the date it was to commence indicating that she did not intend to accept the new employment at the time she terminated her old employment.

 

A-750-1968

Index No. 1160-6
1175-6
1190-6

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 3, 1986

INTERPRETATION SERVICE – BENEFIT CLAMS
Misconduct
Insubordination
Relationship with Fellow Employees
Other Offenses

USE OF PROFANITY AT THE WORKPLACE

A first incident of profanity directed toward management in general, none of whom is present, does not constitute misconduct.

A.B. 365,511

FINDINGS OF FACT: Claimant worked as a meter reader for a public utility for about six years up to February 11, 1985. On February 8, 1985 at an informal meeting of seven meter readers including the claimant, the foreman stated that the management was not happy with the meter readers’ performance and that they may have to work on Sundays. Claimant responded by using foul language in reference to management. There were no prior incidents which resulted in any disciplinary action or warning against the claimant. Claimant was discharged for his remarks.

OPINION: The credible evidence establishes that claimant made a remark involving the use of foul language at an informal meeting of meter readers. It was the first incident of its kind and it was not directed against the foreman who presided at the meeting. Although the remark was directed against management in general, none of whom was present at the meeting, by no means can it be interpreted to be a challenge to the authority of management. Claimant’s remark was indiscreet and vulgar and he demonstrated poor judgment in making it. However, such action did not rise to the level of misconduct. Accordingly, we hold that claimant did not lose his employment through misconduct in connection therewith.

DECISION: The initial determination of the local office is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

This rule should be distinguished from the rule reported in Index 1160-4. In that case, profanity addressed to a supervisor in the presence of co-workers constituted misconduct.

 

A-750-1969

Index No. 915-A7

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 12, 1986

INTERPRETATION SERVICE – BENEFIT CLAIMS
Determination of Benefits
Reduction Due to Pension
Pension or Retirement Payment; Definition

DISABILITY PENSION

Receipt of a retirement pension due to a disability, which pension constitutes a periodic payment based on claimant’s previous work under a plan contributed to by the claimant’s base period employer, requires a benefit rate reduction pursuant to Section 600.7 of the U.I. Law.

A.B. 368,203

FINDINGS OF FACT: Claimant was employed as a transit police officer for over twenty years ending May 27, 1985. At that time, claimant involuntarily retired based upon a disability. As a result, he became eligible for a disability pension. He receives $2,090 per month. During the course of his employment, claimant contributed five percent to the pension fund.

OPINION: The evidence establishes that the claimant received a disability retirement pension to which he contributed five percent. Section 600.7 of the Unemployment Insurance Law provides for a reduction of unemployment insurance benefits when the Federal Unemployment Tax Act requires a reduction in order for New York State to receive full tax credit from the Federal Government. In analyzing this subsection, we find that the claimant’s disability pension constitutes a periodic payment which is based on claimant’s previous work, under a plan contributed to by the claimant’s base period employer. Accordingly, we conclude that Section 600.7 of the Unemployment Insurance Law is the operative section and requires a reduction of the claimant’s benefit rate. The amount of the reduction should be 50 percent of the amount claimant receives. In this particular case, that amount exceeds the benefit rate and, thus, the claimant’s rate is reduced to zero.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is affirmed.

COMMENTS

1. Section 600.6, which made an exception for disability payments, was superseded by Section 600.7.
2. A discussion of the current policy regarding pensions may be found in Special Bulletin A 710-44 (Revised) "Reduction of Benefit Rate Due to Retirement Payments" and UI Procedure III 3015.
3. Availability and capability should be explored in cases in which claimant receives a disability pension.

 

A-750-1970

Index No. 1605 A-10
1605 C-6

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 25, 1986

INTERPRETATION SERVICE – BENEFIT CLAIMS
Voluntary Separation
Voluntary or Involuntary
Last Employment, Question of

RE-EMPLOYMENT TO TRAIN REPLACEMENT

If a claimant, following a voluntary quit for non-compelling reasons and before filing a claim for benefits, is subsequently re-employed by the former employer to train his/her replacement and then is separated following the completion of the training period, the claimant should be disqualified for voluntary leaving of employment without good cause.

Matter of Kyle Kindlon; 114 AD 2d 730

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 29, 1984, which ruled that claimant was entitled to receive benefits.

Claimant, a financial systems clerk, voluntarily resigned the position, which she had held with the employer for about two years. It is uncontroverted that claimant initially left the employer voluntarily for personal reasons. Her resignation was effective in January 1984. Prior to her resignation, the employer requested that she delay her actual termination until such time as she had trained the person hired to replace her. Claimant declined to do so but indicated a possible willingness to return on a temporary basis at some later date for that purpose.

Claimant did return to work for the employer for a one-week period in February 1984 for the purpose of training her replacement. She negotiated a salary with the employer which was higher than that which she was being paid at the time of her resignation. It was anticipated that she could adequately train the new employee in one week.

Claimant completed the training of her replacement in the one-week period. Thereafter, she filed for unemployment benefits and her initial application was approved. That decision was appealed by the employer and upheld by the Administrative Law Judge and the Unemployment Insurance Appeal Board. The employer appeals.

The Board found that Labor Law §593 required a determination that claimant was eligible for unemployment benefits. That section, in pertinent part, provides:

No days of total unemployment shall be deemed to occur after a claimant’s voluntary separation without good cause from his last employment prior to the filing of his claim until he has subsequently worked in employment on not less than three days in each of five weeks and earned remuneration at least equal to five times his weekly benefit rate (id.).

The Board rejected the employer’s position that claimant’s temporary employment was so intertwined and interrelated to her voluntary termination that the two periods were essentially inseparable.

We find that the Board’s decision in the instant case contravenes the basic intent and spirit of the Unemployment Insurance Law [see, Matter of Shanley (Catherwood), 27 AD 2d 496, 498-499]. Labor Law article 18 provides its own guideline for the "interpretation and application of this article" by setting forth the declared public policy of the State with regard to unemployment compensation (Labor Law §501). In setting forth the purpose and policy of the unemployment insurance program in the State, the statute expressly refers to involuntary unemployment as a public problem. In interpreting a statutory program or enactment, the courts must reasonably consider the general spirit and purpose of the enactment and the circumstances which prompted its creation. Ordinarily, the preferred construction is one which furthers the object, spirit and purpose behind the Legislature’s enactment of the program (McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 96, 124).

It is abundantly clear from the record that claimant’s unemployed status at the time of her application was self-imposed and in no way involuntary. The one week she spent training her replacement was not inconsistent with her purpose of completely terminating her employment voluntarily. The reason claimant was unemployed at the end of the one-week period cannot be viewed in a vacuum. She had no employment at the end of that one-week because she had already elected to quit her job and be replaced by someone else. She knew well that the training of her replacement was to be of very short duration. Such temporary activity for her former employer under the existing circumstances did not constitute a new period of employment for purposes of Labor Law §593 [Matter of Williams (Levine), 51 AD 2d 1094]. Any other result would give undue import to a hypertechnical construction of the Unemployment Insurance Law in a manner which would do a disservice not only to the employer, but also to the purpose intended by the Legislature when the program was enacted, i.e., to ease the burden created by involuntary unemployment [Matter of Aquilina (New York Tel. Co., - Ross), 62 AD 2d 1096].

Decision reversed, without costs, and employer’s objection to claimant’s eligibility for benefits sustained.

COMMENTS

1. The Court found a voluntary leaving of employment after claimant’s second separation despite the fact that she had not agreed to conduct this training prior to quitting and despite the fact, that the negotiated salary for the week was higher than her previous salary. In its opinion the court stated that claimant’s reason for unemployment at the end of the week period "cannot be viewed in a vacuum" inasmuch as the period of time she spent training her replacement was not inconsistent with her purpose of voluntarily terminating her employment.
2. This case can be distinguished from Matter of Mittleman 282 App Div. 587, in that in Mittleman, claimant subsequently worked for a different employer and was then involuntarily separated. On the other hand, the claimant, in Kindlon was not working following the temporary employment because of the previous election to quit.
3. It is significant that the period of re-employment was only of one-week duration and that claimant was aware she would complete the training in one week.
4. This case can be compared to the disqualifying situation wherein claimant, for reasons that do not constitute good cause, give his employer notice of leaving employment and agrees to remain until a replacement has been obtained, but no later than a specified final day, and his services are terminated before such final day when the employer obtain a replacement. (See A-750-1224). In each case, it was claimant’s initial intent to voluntarily quit the job.
5. This rule should only be applied in instances where claimant is employed for a brief period, specifically to train a replacement or to complete previously started work for the employer. This rule should not be applied in instances where claimant returns to an employer to "fill in" for an absent employee or to perform "new" work for the employer.

 

A-750-1971

Index No. 1110-6

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 11, 1986

INTERPRETATION SERVICE – BENEFIT CLAMS
Misconduct
Absence and Lateness

ABSENCE DUE TO INCARCERATION

Discharge for extended absence due to incarceration for a crime committed by claimant even though outside the course of employment is a loss employment to misconduct because the absence was caused by claimant’s own actions and violated a reasonable condition of employment – regular and punctual attendance.

A.B. 365,575

FINDINGS OF FACT: The claimant was employed as a drill press operator from January 1977 through September 25, 1984. On the evening of September 25, 1984, he was arrested and charged with first degree attempted rape and first degree sodomy. He was jailed and not able to report to work as scheduled on September 26, 1984 or thereafter. On October 12, 1984, the employer notified claimant that he was discharged pursuant to the employer’s rule that any absence of more than ten days, except those involving workers compensation or disability, would not be excused. Claimant subsequently pleaded guilty to sexual abuse, a Class D felony. He was released from jail on January 23,1985.

OPINION: The credible evidence establishes that the claimant did not report to work after September 25, 1985, due to his incarceration on criminal charges. His failure to report to work violated a reasonable condition of his employment, which required regular and punctual attendance. Claimant had caused his arrest and incarceration by his own actions, which resulted in his guilty plea to a felony. We do no agree with the judge’s reliance on Matter of Betancourt (60 AD 719 aff’g Appeal Board 220,539 and 230,890D). In our opinion, the Court based its interpretation on the fact in that case that the claimant was an ordinary seaman on a merchant ship. Because of his arrest, claimant missed the scheduled sailing of the ship and so that employer had no alternative but to replace that claimant. Such a compulsion is not present in this case. In view of the ruling in Matter of James (34 NY 2d 491), we think that the more appropriate legal issue herein is misconduct rather than provoked discharge. Claimant was absent from work due to his own actions which do not justify the absence. Accordingly, we conclude that claimant lost his employment through misconduct in connection therewith (Appeal Board 199,344; 332,914 and 361,791).

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. In this case, the employer had a rule that absences in excess of ten days for reasons other than Workers’ Compensation or disability would not be excused.
2. This rule would only apply to situations wherein claimant has been convicted, pleads guilty or otherwise admits to the offense, unless there is other independent evidence of his/her guilt.

 

A-750-1972

Index No. 1110-10

NEW YORK STATE DEPARTMENT OF LABAOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 10, 1986

INTERPRETATION SERVICE – BENEFIT CLAIMS
Misconduct
Absence and Lateness

ABSENTEEISM & TARDINESS: FAILURE TO INVESTIGATE PRUDENT & AVAILABLE ALTERNATIVES

Continued absenteeism or tardiness after warning constitutes misconduct if claimant failed to investigate prudent and available alternatives that might have eliminated the absence or reduced the tardiness.

A.B. 364,698

FINDINGS OF FACT: The claimant worked as a messenger for approximately five months through January 28, 1985. The claimant had a history or chronic latenesses and absenteeism, for which she was last warned on January 17, 1985. On the night of January 28, the claimant was cleaning her contact lenses and one ripped. Her work hours were from 11 A.M. to 6 P.M. The claimant could have seen the eye doctor for a replacement before her starting time but did not want to be late. Instead of taking some time in the morning, the claimant decided not to be late by taking the whole day off. The claimant could have gone on a Saturday, when she did not work, to replace the contact lenses but she did not want to wear her eyeglasses, which were available. On January 29, the claimant went to the district attorney’s office to obtain a letter to excuse some previous absence. The claimant did not have an appointment to see the assistant district attorney concerning that matter and the claimant could have telephoned instead to ask that the letter be mailed to her rather than taking time from work. On the following day, January 30, the claimant did not report to work either, because she received a telephone call to take her mother home from the hospital. Her mother was under medication at the time and had high blood pressure. The claimant did not attempt to contact two of her brothers to see if they could have taken her mother home instead. Escorting her mother home from the hospital was not an all day even which would have prevented her from working part of the day. Following these days of absences, the claimant was discharged.

OPINION: The credible evidence establishes that the claimant had a history of poor attendance and that she had been given a last warning less than two weeks prior to her last absences. The reasons for those two days of absences were personal and non-compelling in nature. There is no reason why the claimant could not have taken care of her contact lens problem on Saturday or else early in the morning and then reported to work. Going to the district attorney’s office as also non-compelling at the time. Taking the following day off merely compounded her problem because she did not act in a prudent (sic) to minimize the time needed to take off or explore other possibilities among her family to allow her to work that day, or at least in part. Since the claimant did not act as a prudent person anxious to protect her employment, we conclude that her actions on her last two days constituted misconduct in connection with her employment.

DECISION: The initial determine of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. In the instant case claimant might have reduced her absence, thereby protecting her employment, had she made other arrangements to conduct her personal business. Similarly, the Board ruled that failure to conduct personal business after working hours and taking time off from work when claimant knew her job was in jeopardy, constituted misconduct (A.B. 368,275)
2. In another recent decision the Appeal Board ruled that absenteeism due to mechanical failure of claimant’s automobile constituted misconduct because claimant did not make a prudent effort to find an alternative mode of transportation (A.B. 368,807).
3. In each of the aforementioned cases, claimant had been previously warned about attendance and there were reasonable and available alternatives.

 

A-750-1974

Index No. 920C-12

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 22, 1987

INTERPRETATION SERVICE – BENEFIT CLAIMS
REASONABLE ASSURANCE

REASONABLE ASSURANCE – HOLIDAY AND RECESS PERIODS

Reasonable assurance exists for weeks commencing during customary vacation periods or holiday recesses when a substitute employee worked at least one of the seven days immediately preceding the recess, and has been placed on a priority list consisting only of those employees who worked during this pre-recess period. Under these circumstances no individual notice need be given, providing the educational institution will use this priority list to call substitutes for employment during the seven days immediately following the recess period.

A.B. 360,620

FINDINGS OF FACT: The claimant worked as a substitute school teacher for a school district during the 1983-84 school year. Prior to the customary Easter recess, which ran from April 13 through April 19, claimant worked on April 12,1984. After the Easter recess, she next worked on April 30, 1984.

OPINION: Section 590.10 of the Labor Law applies: "to any week commending during an established and customary vacation period or holiday recess, not between such academic terms of years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision eleven of this section in the period immediately following such vacation period or holiday recess…"

In this and several other decision, the Board will set forth its interpretation of that statute. Consideration has been given to Field Memorandum 10-84 of the Commissioner of Labor and to the arguments advanced by parties and interested groups at hearings upstate and in New York City. In view of the fact that any interpretation of this section must be in harmony with our prior interpretations of Section 590.10, we will briefly summarize those rulings.

In numerous cases involving the possibility of work as a per diem substitute teacher, we have held that a reasonable assurance of employment exists when the employer expresses a good faith willingness to place and/or has in fact placed a claimant’s name on the list from which substitutes are called to teach, and when the employer will in good faith consider the possibility of offering per diem work to the claimant. It is the responsibility of the parties to demonstrate, with competent testimony from knowledgeable witnesses concerning the employer’s personnel practices and hiring procedures, that these basic conditions have been met. Absent proof that both of these conditions have been satisfied, there is no reasonable assurances of employment in an instructional capacity as a per diem substitute teacher. As for full-time teachers and for teachers who work some regular part-time schedule, we have held that reasonable assurance between academic years and terms is usually found when the employer expresses, orally or in writing, a good faith intent to reemploy the teachers even if such reemployment is subject to preconditions such as budget, enrollment or registration.

In determining the intent of the Legislature when it amended Section 590.10, we are guided by the holding of the Court in Matter of Miller, (78 AD 2d 561, aff’g Appeal Board 299,745), wherein the Court found that an intent of Section 590.10 was to further alleviate the financial burden on school districts which would be imposed if the school districts were required to finance unemployment insurance benefits for employees traditionally unemployed during certain periods of time. We see no reason to believe that the intent in amending Section 590.10 was any different for established and customary vacation periods and holiday recesses. We, therefore, conclude that the amendment serves to restrict entitlement to benefits.

Although Field Memorandum 10-84 does achieve that purpose, we find the employer’s argument to be more compelling that the stringent requirements of the memorandum effectively negate the intent of the statute by compelling school systems to guarantee work to all substitute teachers on the day before and the day after the vacation or recess regardless of the school’s needs for substitute teachers on those specific days, if the school wishes to avoid the burden of unemployment benefits during the vacation or recess. However, while we agree that there should be a broader interpretation of the statute than that set forth in the Field Memorandum, we are also mindful of the fact that the unemployment insurance system is social legislation which must be liberally construed so as to extend coverage to workers unemployed through no fault of their own. A balance must be struck. This balance must also allow for its administration by the local office so that benefit payments can be made promptly when due.

Accordingly, although the statute requires work "immediately" before, and an assurance of work in "the period immediately" following the vacation or recess, we find that the time periods are identical, regardless of the difference in words used by the Legislature. That time frame must be more than the one day called for in the Field Memorandum. Considering that the vacations or recesses usually are a week or two long, at times such as Christmas, Easter/Passover, and midwinter break or President’s Week, we conclude that a week would be an appropriate measure of the "immediate" time provided in the statute. The first condition of the statute is, therefore, satisfied if a person worked in the week before the vacation period or holiday recess and has a "reasonable assurance" of work for the educational institution in the week following the vacation or recess. We must now address the question of whether the reasonableness of that assurance is the same as that between academic years or terms. We think not. A reasonable assurance of employment in the next academic year or term recognizes the possibility/probability of work at some time during the next four to ten months. A reasonable assurance for a school year means that a substitute might be called on up to 180 days (Education Law, Section 3604.7). As indicated above, this reasonable assurance is established by a presence on the list from which substitutes are called to teach and the employer’s good faith willingness to consider the person for a vacancy. If a person is not called to work as per diem substitute during the year or term, that does not automatically negate the existence of a prior reasonable assurance. In order for an assurance of reemployment to be reasonable for a significant shorter period of time (namely for the week following the vacation or recess), we think that there must be a greater likelihood that the person will be considered and possibly called to work during the specified week. To satisfy this requirement, an employer must demonstrate that it had a priority list which is used to call substitutes during the week after the vacation or recess and that the employer would only include on this priority list those substitutes who had worked in the week prior to the vacation or recess. Provided the employer was prepared to come forward with proof of the good faith operation of such a priority system, we find that the short periods of time involved make it unreasonable and unpracticable to require the employer to give individual notice of the priority system to any person who substitutes during the week prior to the vacation period or holiday recess. The lack of such notice does not relieve the employer of its responsibility to demonstrate, with competent testimony from knowledgeable witnesses concerning the employer’s personnel practices and hiring procedures, that all of the other requirements, which we have set forth, have been met.

In our opinion, this system would be administratively workable for employers and the local offices. Employers can establish the priority list for the week after the vacation or recess by keeping track of those who accept per diem work in the week before the recess. If a claim is filed during a vacation period or holiday recess, the local office can promptly determine eligibility by establishing whether the claimant had worked in the week prior to the vacation or recess and by establishing whether the employer had an operational priority system for after the vacation period or holiday recess. We also would note that, although employers may not have been aware of our above criteria prior to these decision, they effectively are not aggrieved by the criteria. The standards are much more flexible than those of the Field Memorandum of the Commissioner of Labor. It now remains for us to apply the above principles to the facts of this case.

The credible evidence establishes that the claimant worked within five school days prior to the holiday recess in question. However, the credible (evidence) further establishes that the employer did not demonstrate that it had a priority list, including only those substitute teaches who had worked in the five school days prior to the holiday recess, which priority list was used to call substitute teachers during the five school days after the holiday recess. The claimant was called to work within five school days after the holiday recess but not from a priority list. We, therefore, conclude that, based on the criteria established herein, the claimant did not have reasonable assurance of employment for the period immediately following the holiday in question, pursuant to Section 590.10 of the Law.

DECISION: The initial determination of the local office is sustained. The employer’s objection is overruled.

The decision of the administrative law judge is affirmed.

COMMENTS

1. This decision changes the criteria set forth in Field Memorandum 10-84 [item II (c) and (d) and Special Bulletin A-710-53 (item IV, (B) paragraph three] for determining what is the significance of the work "immediately" as it appears in the statute. The Appeal Board has determined that the period to be considered should be expanded from one day to seven days and that the time period before and after the recess period should be the same. The specified sections of those documents should be marked obsolete.
2. The Appeal Board’s ruling that no actual notice of reasonable assurance need be given the employee is limited to specific circumstances of holiday recesses. It should not be expanded to the period between school years or terms.
3. There is no requirement that the educational institution have prior knowledge of the requirement that a priority list be established. If they do not have such a list, then no reasonable assurance can be said to exist.
4. This rule applies to all employees of educational institutions – non-professional as well as professional.

 

A-750-1976

Index No. 1105-B5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 30, 1987

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
RELATION OF OFENSE TO DISCHARGE

MISCONDUCT ON DAY SCHEDULED FOR LAYOFF

A claimant may be disqualified for an act of misconduct committed on the day he is scheduled for layoff due to lack of work.

A.B. 375,601

FINDINGS OF FACT: The claimant was employed for about ten years as a machinist. Approximately four or five months prior to the loss of his employment, the claimant was warned and suspended for one week because he failed to punch his time card in or out when leaving for lunch. The claimant was aware that all arrivals and departures on employer’s premises must be accurately recorded on the employee’s time card.

On June 3, 1986, the claimant arrived at 2:50 p.m. for the beginning of his 3:00 p.m. shift. Upon signing in, he observed a notice indicating that he and a number of other employees were to be placed on temporary lay off status at the end of the shift. Shortly thereafter, claimant began to feel ill. He thought that if he ate something he would feel better so he punched out at 5:45 p.m. for something to eat. He returned at 6:04 p.m. and punched back in. He was still not feeling well so he left the premises. He did not punch his time card to indicate that he was leaving for the day nor did he change a previously entered notation on the back of his time card to the effect that he would be working a full eight hour day. When management became aware of claimant’s failure to properly punch his time card, he was suspended. Two or three days thereafter, the claimant was formally advised that he was being discharged and that the reason for his discharge was his failure to punch out his time card after a previously suspension for the same type of conduct.

Prior to the redetermination of his claim, the claimant received $80 in benefits.

Upon filing his claim for benefits, claimant advised the unemployment insurance office that he was no longer working because of a lay off. He knew at the time that he was no longer working because he had been discharged for time clock violations.

OPINION: We disagree with the administrative law judge’s opinion that claimant’s failure to punch his time clock was a mere judgmental error. We further disagree with the administrative law judge’s opinion that an employee scheduled for layoff does not have to complete the final work shift. Claimant has offered no valid excuse as to why he failed to punch out his time card. Inasmuch as the claimant had previously been suspended for time clock irregularities, we conclude that the claimant’s course of conduct rises to the level of misconduct within the meaning of the Unemployment Insurance Law and subjects him to the disqualification imposed. Since the claimant is subject to disqualification, the benefits he received constitute an overpayment and must be repaid pursuant to Section 597.4 of the Law. Further, since he received benefits to which he was not entitled, the proper forfeiture penalty was the eight day penalty initially imposed by the unemployment insurance office.

DECISION: The initial determinations of the local office are sustained.

The decision of the administrative law judge is modified accordingly, and as so modified, is affirmed.

COMMENTS

1. Although in this case the employer had reported that claimant’s layoff was to be for a temporary period, the same principle would apply if the layoff was to have been indefinite and the action constituting misconduct occurred before the end of work day.
2. It should be noted that claimant’s misconduct exceeded the simple act of leaving work early without permission. That action might be equivalent to a voluntary leaving of employment and not disqualifying under the principles set forth in A-750-1914. Careful fact finding regarding the effect on the employer of claimant’s premature departure is required.

 

A-750-1977

Index No. 820-2
875-4
895-3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 24, 1987

INTERPRETATION SERVICE – BENEFIT CLAIMS
REGISTRATION, REPORTING AND CERTIFICATION
ABSENCE FROM LOCALITY
SEEKING WORK
OTHER REASONS

FAILURE TO REPORT WHILE IN A FOREIGN COUNTRY

Failure to report by a claimant seeking work in a foreign country was not excused because claimant was unable to report in person to a jurisdiction which is a signatory to the Interstate Benefit Payment Plan.

A.B. 372,361

FINDINGS OF FACT: The claimant filed an original claim for benefits effective January 27, 1986, and was held eligible to receive benefits. On February 27, 1986, the claimant learned of a job opening which would require her to go to Italy on a job interview. Before leaving, the claimant called the local office to inform it that she was going to Europe for the job interview. She left for Europe on February 28,1986, and returned to New York on March 10, 1986. She reported to the local office on the next day. None of the countries which claimant visited are signatories to the Interstate Benefit Plan.

OPINION: The Commission of Labor has long established a policy of holding claimants ineligible who cannot report in person to a jurisdiction which is a signatory to the Interstate Benefit Plan even though the claimant is seeking employment in the non-signatory country. The Board has sustained such rulings on numerous occasions. (Appeal Board 112.236; 138,359; 253,755; 261,355; 319,207). The Court has also affirmed a decision of the Board, which held a claimant ineligible during the period she was in Europe seeking employment, even though claimant had so informed the local office prior to leaving for Europe. (Matter of Ausubel, App. Div. 3^rd Dept. unpublished, March 26, 1981). Accordingly, we conclude that claimant was properly held ineligible to receive benefits effective February 28,1986 through March 10,1986, because she failed to comply with reporting requirements.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. This decision reconfirms a long established division policy holding claimants ineligible to receive benefits when they are unable to report to a jurisdiction which is a signatory to the Interstate Payment Plan.
2. The signatories to the Interstate Benefit Payment Plan include the fifty states, Puerto Rico, the American Virgin Islands and Canada.
3. An exception to this rule may be made for up to seven (7) days when a claimant goes abroad for a prearranged job interview. However, the insurance office must be notified of the impending job interview prior to claimant’s departure. Upon claimant’s return to the local office jurisdiction, the interview must be verified in writing. When dealing with this exception, local office is to be guided by procedure III-5452A.
4. In determining whether the prearranged job interview was the primary purpose for claimant’s trip abroad, the Claims Examiner should consider such matters as: whether claimant’s tickets were purchased before or after the interview was arranged, did claimant also attend to other personal business, did claimant extend his time abroad for sightseeing or visiting relatives, etc.
5. Claims Examiners are reminded that availability should be explored in all cases where claimant leaves local office jurisdiction.
6. Questions involving the rule of this release should be routed through supervisory channels to Adjudication Services Office – Interpretation Section.

 

A-750-1978

Index No. 1605-B6
1605-C7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 15, 1987

INTERPRETATION SERVICE – BENEFIT CLAIMS
EXISTENCE OF EMPLOYMENT RELATIONSHIP
LAST EMPLOYMENT, QUESTION OF

EXISTENCE OF EMPLOYMENT RELATIONSHIP

A claimant who files for benefits while continuing on a leave of absence which may be terminated at claimant’s volition, is subject to disqualification for voluntary leaving even though claimant had intervening employment which ended under non-disqualifying conditions.

A.B. 370,237

FINDINGS OF FACT: The claimant, a tenured teacher for the New York City Board of Education, applied for an was granted an unpaid leave of absence effective October 1, 1984 through June 30,1985. She obtained this leave of absence because she was tired of teaching and desired to seek employment in the private sector. The claimant then worked for two weeks for R.J.G. until October 12, 1984. Thereafter, she obtained employment with another private employer for approximately nine weeks from October 30 until December 28,1984.

The claimant filed an original claim for benefits on December 31,1984. She did not seek to resume her teaching duties as of that date. The employer’s policy allows for teachers on leave to apply for another teaching position before the end of their leave. The claimant was held eligible to receive benefits at the rate of $180 a week, and received $4,680 in unemployment insurance benefits for the statutory weeks from January 13 through July 7, 1985. The claimant obtained an extension of her unpaid leave of absence for a period from July 1, 1985 through June 30,1986. In October 1985, the claimant resumed teaching on a per diem substitute basis until about January 1986, as authorized under the terms of the collective bargaining agreement. In January 1986, she resumed teaching as a regular teacher for the employer herein.

Opinion: The credible evidence establishes that the claimant continued her relationship as an employee of the employer herein, while on leave.

When she filed her original claim for benefits, she still was on a leave from the employer herein. However, she had signified her intention of leaving her employment for personal and non-compelling reasons, namely that she was tired of teaching and was seeking work in the private sector. We note that the claimant could have resumed her position as a teacher on a per diem basis or applied for a full-time teaching position at the time she filed her original claim for benefits and while she was in receipt of benefits, but made no effort to do so. Significantly, it was not until she exhausted all of her benefits, that the claimant returned to teaching with the employer herein first on a per diem basis and then full-time. The Board has previously held that a claimant, who files an original claim for benefits, while on leave, and immediately after holding a temporary position, is deemed to have voluntarily left his employment without good cause (See Appeal Board No. 324,500A). The case before the Board is clearly distinguishable from the Matter of Wilner (78 AD 2^nd 56), which case concerns a claimant who had sought to return to her secretarial position while she was on leave and before she filed her original claim for benefits. Furthermore, unlike the case before the Board, the claimant in the aforementioned case had no expressed any intention of leaving the field of secretary work.

Section 501 of the Labor Law states that the public policy of the State is to provide benefits for an applicant due to his or her "involuntary unemployment" and who, "through no fault of their own," have lost their jobs. This clear cut public policy would be contravened if this claimant was held eligible to receive benefits. Under the circumstances, any prior cases of the Board, which are inconsistent with the reasoning and the result reached in the instant case, are no longer to be followed. Accordingly, we conclude that the claimant voluntarily left her employment for personal and non-compelling reasons and without good cause.

As the claimant was disqualified from receiving benefits, she was not entitled to the benefits, which she received. Therefore, the $4,680 in benefits paid to the claimant constitute an overpayment, which is recoverable pursuant to Section 597.4 of the Labor Law, as amended.

DECISION: The initial determinations of the local office are sustained.

The decision of the Administrative Law Judge is reversed.

COMMENTS

1. The effective date of disqualification should be the Monday of the week in which claimant files a claim.
2. This case may be distinguished from Matter of Wilner (78 AD 2d 563), wherein the claimant unsuccessfully attempted to return to her former position prior to filing. She did not have an unqualified right to resume the employment at her discretion.
3. It should be noted that in this case claimant was still on a leave of absence at the time she filed her original claim. If claimant had terminated her leave of absence before layoff from the intervening employment, then that intervening employment would be her last employer and the reasons for its termination would determine eligibility.
4. This principle should be applied only once. Should claimant be disqualified and then obtain new employment sufficient to terminate the disqualification from an employer other than the employer from whom she is on a leave of absence, claimant would be eligible for benefits.
5. As in any case where there is suitable work which claimant does not accept, the issue of availability should be explored.

 

A-750-1979

Index No. 1325-8

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 4, 1987

INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
TERMINATION OF INDUSTRIAL CONTROVERSY

The suspension for industrial controversy ends as of the date an employer was compelled by law or government regulations to suspend business operations, even on a temporary basis.

A.B. 371,792 (Lead Case)

FINDINGS OF FACT: Claimants were employed as pari-mutuel clerks at a harness racing track until they went on strike on January 1, 1986. The racing meet at the track was due to end after racing concluded on January 6, 1986, but the track shut down because of the strike. All claimants would have been laid off as of January 7, 1986, when the track was due to close until the scheduled date of reopening of the next meet, March 24, 1986. Claimants engaged in picketing at the race track from January 1 through January 6, but picketing ceased as of January 7, 1986. The strike had been called when the previous union contract expired on December 31, 1985 and a new contract had not been successfully negotiated.

OPINION: The present case falls between two established precedents concerning whether claimants are subject to a suspension of benefit rights during an industrial controversy. The Court has held that when a claimant loses employment due to an industrial controversy, even if the claimant was due to be laid off shortly after the controversy began, the seven week suspension continues. This is true even if claimant was told before the industrial controversy started that he would be laid off on a specific date, providing that the industrial controversy actually began before the date of the lay off (Matter of Echevarria, 273 App. Div. 1046, reversing Appeal Board 16,034). However, it has also been held that, if an employer goes out of business or moves to a different locality after an industrial controversy began, the seven week suspension ends at the time the business is terminated (Appeal Board 20,677).

In the present case, the credible evidence establishes that all of the claimants would have been laid off as of January 7, 1986, but the strike began before that date. The evidence also establishes that the race track ceased operations, by law, as of January 7, 1986. Although the employer was not actually out of business as of January 7,1986 because it was scheduled to resume operations on March 24,1986, as a practical matter the employer had actually ceased such operations as would have required claimants services. We thus conclude that, during the period from January 7 through March 23, 1986, the employer was, in fact, not in business and the strike cannot be said to have continued at that time because there were no services the claimants can be said to have withheld beginning January 7, 1986. This was evidenced by the fact that picketing had ceased as of that date. Under the circumstances, we conclude that the suspension period ended January 7,1986. It is not necessary to determine if the industrial controversy would thereafter resume on March 24,1986 when the employer was due to resume its operation, nor to determine if claimants would again be subject to a suspension for the remainder of the seven week period if the strike had resumed.

DECISION: The initial determinations of the local offices are modified to be effective January 2 through January 6, 1986 and, as so modified, are sustained.

COMMENTS

1. In another decision A.B. 37,674 (Lead Case) issued the same date, the Appeal Board similarly terminated the suspension for "non-striking" employees.
2. In this case, the New York State Racing & Wagering Board, pursuant to Section 307(1) of the Racing, Pari-Mutuel Wagering and Breeding Law, must approve the racing dates and hours during which this employer operates a harness track.
3. The instant case should be distinguished from the case reported at 1325-7 (wherein the employer discontinued and liquidated the business) in that a schedule of operation was fixed by law and the employer was precluded from deviating from that schedule. The business entity, however, continued to exist.
4. This principle should be narrowly construed to limit it to seasonal enterprises where the season is established by statute or regulations of a governmental entity. It should not be extended to other seasonal operations (e.g., ball parks, ski resorts, canneries, etc.).

 

A-750-1980 REMOVED

A-750-1981

Index No. 1105 A-5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 30, 1987

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
EVIDENCE REQUIRED

ISSUE PRECLUSION

The facts found by an impartial arbitrator, although binding, do not preclude the finding of additional facts, which are necessary to resolve the issue of misconduct.

Matter of Guimarales, 68 NY2d 989

The order of the Appellate Division should be reversed, and the matter remitted to the Unemployment Insurance Appeal Board for proceedings in accordance with this memorandum.

After claimant was fired from the position she had held for 12 years as a cleaning person in a public school, an arbitration hearing was held to determine whether she had been insubordinate and whether there was just cause for her dismissal. The arbitrator made various findings of fact as to claimant’s actions, and concluded that she had been insubordinate and that there was just cause for her dismissal.

After an initial determination by the Department of Labor that claimant was ineligible for unemployment insurance benefits because she had lost her job due to "misconduct" [see, Labor Law Section 593(3)], a hearing was held before an Administrative Law Judge to determine claimant’s eligibility for such benefits. The ALJ stated that he was bound by the arbitrator’s factual determinations as to claimant’s conduct as well as the determination that she had been insubordinate. Given those findings, the ALJ made his independent determination that claimant’s actions "rose to the level of misconduct under the Unemployment Insurance Law." On appeal, the Unemployment Insurance Appeal Board made its own additional findings of fact and concluded that claimant’s conduct did not constitute misconduct. The appellate Division affirmed stating that "(t)here was substantial evidence in the record presented…to support the Board’s decision not to give the arbitrator’s determination collateral estoppel effect" (emphasis added). Whether collateral estoppel applies is, however, a question of law turning on the identity of the issues involved and whether there was a full and fair opportunity to litigate the issue in the prior proceeding (Ryan v New York Telephone Co., 62 NY 2d 494, 500-505). The standard of review by the Appellate Division of the Appeal Board’s collateral estoppel ruling was, therefore, not substantial evidence [CPLR 7803(4)] but whether the ruling was affected by an error of law [CRLP 7803(3)].

The Appellate Division and the Appeal Board erred in not giving collateral estoppel effect to the arbitrator’s factual findings regarding claimant’s conduct and to his conclusion of insubordination (see, Matter of Ranni, 58 NY 2d 717). The Appeal Board and the ALJ, although bound by the arbitrator’s factual findings regarding claimant’s conduct and his conclusion of insubordination, were free to make their independent additional factual findings and form their own independent conclusion as to whether such conduct constituted "misconduct", a mixed question of law and fact, had a "rational basis" (see Fisher v. Levine, 36 NY 2d 146).

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for proceedings in accordance with the memorandum herein. Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock concur.

COMMENTS

1. Collateral estoppel is a narrow type of res judicata. The essential doctrine of both is that once an issue or claim has been litigated in one forum, (e.g., an arbitration proceeding) the parties are precluded from relitigating it in another forum, (e.g., an unemployment insurance hearing). This doctrine was labeled "issue preclusion" by the Court, Matter of Ranni, 58 NY 2d 715. Various types of proceedings have been recognized by the Appeal Board as being appropriate forums, to which the doctrine may apply. These include hearings held pursuant to the Civil Service Law (Section 75) and the Education Law (Section 3020-A). Decisions resulting from hearings conducted by impartial arbitrators, the State Division of Human Rights, the Waterfront Commission and the US Civil Service Commissioner, among others, have also been given preclusive effect.
2. Five basic due process requirements must be met before the decision of a hearing officer can be considered for "issue preclusion":

1. The hearing officer must have been truly impartial (various steps in disciplinary proceedings sometimes take place prior to binding arbitration, where the person making the decision is an employee of the employer. Such decisions would not meet this requirement);
2. The claimant must have been served with a statement of charges;
3. The claimant must have the opportunity to be represented by counsel;
4. The claimant must have the right to examine and cross-examine witnesses;
5. The hearing officer must have rendered a decision making findings of fact.

1. If there is a decision, which meets the issue preclusion criteria, the claims examiner should obtain a copy. The facts found in the decision are binding. The facts as found by the arbitrator, however, may not be sufficient to determine whether claimant’s actions constituted misconduct under the UI Law. For example, the arbitrator finds that because of claimant’s excessive absenteeism the claimant’s discharge was justified. The Claims Examiner would still be required to go in to the reasons for absence.

 

A-750-1982

Index 705-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 14, 1987

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
ARREST, DETENTION, QUARANTINE

Claimant was unavailable during period of detention by immigration officers pending deportation proceedings.

A.B. 427-38

Findings of Fact: Claimant filed an application for benefits on July 26, 1938. At that time he was given an identification card and instructed to report at the local office before August 16, 1938. Pursuant to such instructions he appeared and reported on August 15, at which time he was instructed to again report on one of the seven days immediately before August 23, 1938. Claimant failed to appear before the aforesaid date, but did appear on August 24, one day later. Upon being informed that a stop order had been imposed effective as of August 9, 1938, because of his failure to appear before August 23, the claimant filed a new application for benefits.

Claimant testified that he failed to appear at the local office before August 23 because he was under the impression that he would be given an additional day within which to report. On August 25 the claimant was taken into custody by the Immigration authorities and is now in detention at Ellis Island, pending deportation proceedings.

Opinion: The claimant has presented no reasonable excuse for his failure to report at the local office on one of the seven days immediately preceding August 23. He knew that he was supposed to report to the office before August 23 and he had no right to assume that he would be permitted to report at his leisure. Compliance with reporting requirements is essential for the proper administration of the Unemployment Insurance Law. Failure to comply, in the absence of a reasonable excuse is sufficient ground for the imposition of a stop order. However, there is no justification for the stop order being made effective as of August 9. The claimant reported on August 15 and was in good standing until at least that day, which was the final day of his three week waiting period. There appears to be no reason why the claimant should be deprived of credit for any of the period during which he fully complied with all reporting requirements. We therefore hold that claimant must be credited with the statutory three week waiting period which ended on August 15, 1938.

The subsequent stop order of August 24 should be amended to August 25, since it was not until the time of his arrest and detention that he became unavailable to accept employment.

Decision: The stop order of August 24 should not have been imposed as of August 9. The claimant must be credited with the statutory three week waiting period ending on August 15. The stop order of August 24 is hereby made effective August 25.

The decision of the referee is modified accordingly.

 

A-750-1984

Index No. 1295-11

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 15, 1987

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
OTHER REASONS FOR REFUSAL

RULES PROHIBITING SMOKING ON JOB

Claimant’s refusal to accept otherwise suitable employment, because she would be permitted to smoke only in a designated area, was without good cause.

A.B. 379,924

FINDINGS OF FACT: The claimant worked for an agency specializing in temporary help as a legal secretary and dictaphone operator from October 1978 intermittently through January 15, 1987. On January 28, 1987, the claimant was offered a one-day job as a dictaphone operator, which paid her usual compensation of $12 per hour. The claimant originally accepted the employment, but then refused the assignment because she would have to take her cigarette-smoking breaks in a lavatory, as it was a non-smoking office. The claimant did not wish to have to leave her dictaphone in order to take smoking breaks. She did not want the attendant pressure of having to complete an assignment, which would last about four and one-half hours, under these conditions.

OPINION: The credible and substantial evidence establishes that the claimant refused an offer of employment in which she had experience. She had been assured by her employer, the temporary agency, that she could take smoking breaks in the lavatory. Her refusal was without good cause under the circumstances herein. Accordingly, we conclude that the claimant refused the offer of suitable employment under disqualifying circumstances. She was overpaid $291.50 in benefits, which is recoverable.

DECISION: The initial determinations of the local office are sustained. The decision of the administrative law judge is reversed.

 

A-750-1985

Index No. 915-A9

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 22, 19887

INTERPRETATION SERVICE – BENEFIT CLAIMS
REDUCTION DUE TO PENSION
PENSION OR RETIREMENT PAYMENT, DEFINITION

BRIDGE PAYMENTS

A special payment made to claimant upon retirement, designed to act as a "bridge" between claimant’s former salary and the commencement of regular retirement payments, is subject to the provisions of Section 600.7.

A.B. 380,086

FINDINGS OF FACT: The claimant was employed for approximately 29 years by a steel manufacturing company. He lost his employment under non-disqualifying conditions on July 25, 1986. Claimant filed an original claim for benefits effective July 28,1986. He subsequently received almost a full 26 weeks of unemployment insurance benefits thereafter, through the week ending February 1,1987. Claimant applied for a company pension for which he was eligible based on his age and seniority. The pension was wholly financed by the employer. The employer’s pension program consisted of a lump sum special payment and the receipt of regular monthly pension payments thereafter. As of December 31, 1986 claimant was entitled under the collective bargaining agreement entered into between his union and the employer to receive a special payment of 24 weeks of vacation pay, totaling $7,180.88. The employer on January 2,1987 paid claimant $3,077.52 of such special payment in the form of six weeks vacation pay. As claimant had elected to retire effective February1, 1987, on March 1, 1987 claimant received a check for the remainder of the special payment, $4,103.36 to cover the period of the first three months of his pension, February 1 through April 30, 1987. As of May 1, 1987 claimant was entitled to receive a regular pension of $440 per month.

OPINION: The credible evidence establishes that the special payment, to the extent of $4,103.36, paid to claimant on March 1,1987 upon his retirement effective February 1,1987, constitutes a payment of pension or retirement pay subject to the provisions of 600.7 of the Unemployment Insurance Law. Consequently, claimant’s benefit rate was properly reduced by such payment, prorated weekly. Therefore, during the period in issue herein, we conclude that claimant was subject to the benefit rate reduction to zero.

DECISION: The revised initial determination of the local office holding that effective February 1, 1987 claimant’s benefit rate be reduced from $180 to zero pursuant to Section 600.7 of the Law, is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. In Matter of Thomas P. Richmond, 96 AD 2d 1132 (not previously reported) the court ruled that such special payments, designed to "ease people into retirement", was a crucial feature of a retirement program and therefore such payments are within the scope of Section 600.7 of the Labor Law.
2. In the instant Appeal Board decision, the special payment took the form of lump sum vacation pay. The Union contract with the employer specifically referred to this money as a form of pension payment, thereby creating the "bridge". Clearly, in this case, such payment was made due to claimant’s retirement, and after the effective date thereof. Hence, the principle in Matter of Richmond applies. It is immaterial that it was paid in a lump sum.
3. In determining the percentage of reduction to apply to claimant’s benefit rate the "bridge" period and regular period may be treated separately. For example if the "bridge" payment is 100% employer financed, and the claimant made a contribution of less than 50% to the regular pension, we should make the reduction 100% for the "bridge" period and 50% thereafter.
4. Complex questions involving the applicability of this rule should be directed through supervisory channels to: Adjudication Services Office, Tel. (212) 352-6850

 

A-750-1986

Index No. 1595-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 10, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION AND REDETERMINATION
REDETERMINATIONS

REDETERMINATION

An initial determination, which is manifestly incorrect in fact or law, may be redetermined based on an internal review conducted within one year of the initial determination even if no "new or corrected information" is provided.

Matter of Carolyn Council, 132 AD 2d 437

(Decided December 30, 1987)

In this matter, the essential facts are not in dispute. Claimant, a regular student at the State University of New York at Buffalo, was employed by its Educational Opportunity Center from January 26, 1984 to September 12,1984, during which time she regularly attended school and had no other employment. She lost her employment under non-disqualifying conditions and, upon her application for unemployment benefits on December 19, 1984, she accurately reported the nature of her employment on the application and that she was a student at the State University where she was employed. When the local unemployment insurance office requested wage information from claimant’s employer, it was notified by the employer, in writing, that claimant was a student rendering services at her educational institution and should be denied benefits under the provisions of Labor Law Section 511 (15). Nevertheless, and as a result of an apparent oversight at the local office, an initial determination was made awarding claimant benefits. These benefits continued until April 1985, when the employer questioned the experience rating charges against it and erroneously notified the local office that it had no record of claimant being employed. This information prompted a review of the claim by the Unemployment Insurance Division in Albany, which, upon recognition of claimant’s status as a student in regular attendance, advised the local office to invalidate claimant’s claim for benefits.

Accordingly, a redetermination was issued by the local office ruling claimant ineligible to receive benefits, effective December 17, 1984, and charging her with an overpayment of $860 in benefits. After a hearing, an Administrative Law Judge sustained the determination finding the overpayment in benefits to be recoverable, which finding was reversed by the Unemployment Insurance Appeal Board upon the ground that there was no authority for the Commissioner of Labor to review and redetermine claimant’s eligibility, after the award of benefits, in the absence of "new or corrected information", as required by Labor Law Section 597(3), which statute did not contemplate the discovery of errors or mistakes by a local office as within its provisions. This appeal by the Commissioner ensued.

Labor Law Section 597(3) in relevant part provides as follows:

Limitation on review of determinations. Any determination regarding a benefit claim may, in the absence of fraud or wilful misrepresentation, be reviewed only within one year from the date it is issued because of new or corrected information * * * provided that no decision on the merits of the case has been made upon hearing or appeal.

We have recently considered the limitations imposed by this statute and concluded that, essentially, its purpose was to prevent "the Department of Labor from simply changing its mind" and that "where an initial determination appears to be erroneous in light of new or corrected information, it would be a waste of time and effort to wait for a referee to correct the error" [Matter of Dunford (Roberts)], 111 AD 2d 1067). Accordingly, we concluded that "the phrase ‘new or corrected information’ should be liberally construed" (id.). Although Dunford may be distinguished on its facts, since it concerned "an amplification of prior information", the rule of construction established should obtain and apply to a situation where, as here, upon internal review by a higher authority, it is manifest that the original determination was incorrect in fact or law. It is both an inherent power vested in the Commissioner, as well as an affirmative obligation that the law be properly administered and erroneous determinations of eligibility corrected. Absent such powers, in a case such as the one at bar, benefits erroneously paid would not only be retained, but would continue notwithstanding a claimant’s obvious ineligibility. Accordingly, the determination of the Board cannot stand.

COMMENTS

1. This decision by the Appellate Division overrules AB 365,999, which was reported in A-750-1973. In that decision the Appeal Board rejected "the concept that new or corrected information includes the discovery of an error by the Local Office." The Board held that in the absence of "new or corrected information" there was no authority for the Commissioner to redetermine. In this decision the Court found that "when it is manifest that the original determination was incorrect in fact or law", the Commissioner of Labor has both an "inherent power" and an affirmative obligation" to correct it.
2. From this it is clear the Commissioner's authority to redetermine according to the following chart:

REDETERMINATION	BECAUSE OF
At any time	1. A finding of wilful misrepresentation. 2. A finding of discharge for an act constituting a felony in connection with employment. 3. Special circumstances such as compliance with a Court Order in a related matter. Advance approval must be obtained through normal channels from the Interpretation Section of Adjudication Services Office.
Within six months from the payment of	1. a retroactive payment of remuneration 2. a pension when entitlement to the pension was not initially established.
Within one year	1. New or corrected information. 2. a timely hearing request. 3. a manifestly incorrect determination.

It should be noted that information that claimant received a retroactive payment is always "new or corrected." Therefore, the Commissioner never has less than one year from the date of the initial determination to redetermine.

3. The Court, nonetheless, repeated its caution from Matter of Dunford: 111 AD 2^nd 1067, 1068, that the Department of Labor should be prevented from "simply changing its mind." To heed this caution, the Department should take care in issuing redeterminations based on internal review, when there is no "new or corrected" information.

To determine whether the Department is "simply changing its mind", the following criteria may be applied:

1. Was a formal determination ever issued in the case? The principle that an Experience Rating Charge (IA96 or IA96R) may constitute a determination to an employer that claimant is eligible on a separation issue is still valid. However, because the form is issued automatically and is not necessarily the result of a "considered" determination, if local office overlooks possibly disqualifying information, from either a claimant or an employer, and this inadvertence subsequently comes to light within one year, an initial determination should be made after a complete fact-finding investigation.
2. Based on the known facts, is the determination contrary to law, a rule in the Interpretation Service, published Department policy, or procedure? The Court points out that it should be "manifest that the original determination was incorrect in fact or law" (underscoring provided).

Black’s Law Dictionary defines "manifest" as

"…obvious to the understanding, evident to the mind, not obscure or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evidence and self-evident.

In evidence, that which is clear and requires no proof; that which is notorious."

Cases that require additional fact-finding to support a contrary determination do not meet this criteria. Cases where the supervisor or reviewer is substituting, without "new or corrected information", his/her judgment as to credibility, importance of facts etc. for that of the Claims Examiner, also do not meet the criteria that the determination be manifestly incorrect.

3. Finally, if one of the "facts" on which the determination is based is clearly and unmistakably erroneous then a redetermination may be in order. Examples of such "facts" include travel time, prevailing wages, the amount of the minimum wage, computational or processing errors, etc…
3. It should be noted that the Court sanctioned redeterminations based on "internal review by a higher authority". The "higher authority" may be either a supervisor within the local office or an outside reviewing authority such as Adjudication Services Office, Liability and Determination Section, etc.
4. Untimely hearing requests, whether by the claimant or an employer, present a special problem. If the request contains no "new or corrected information" and the determination is not manifestly incorrect, then it should be processed for hearing as an untimely request. If there is "new or corrected information" a judgment must be made whether or not to undertake a review. In general, such review should be undertaken and a redetermination issued only if the "new or corrected information" raises a reasonable question as to whether the initial determination is correct.
5. This rule applies equally to redeterminations that will result in a claimant being found eligible or ineligible.
6. Complex questions regarding redeterminations may be referred, through supervisory channels, to the Adjudication Services Office, Interpretation Section (Tel. #212-352-6850).
7. This rule replaces the rule reported at 1595-1 (A-750-1973), which should be marked obsolete and no longer applied.

 

A-750-1987

Index No. 1650 C-6
1605 F-10

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 6, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
GRIEVANCES AND OBJECTIONS
VOLUNTARY SEPARATION OR REFUSAL

Claimant’s refusal to accept reinstatement following a disciplinary suspension, because such reinstatement is contingent upon a probation period wherein claimant could be summarily discharged for a violation of company rules, was tantamount to voluntary leaving employment without good cause.

A.B. 374,677

FINDINGS OF FACT: The claimant worked for approximately 13 years for a manufacturer of cellulose sponges, until March 7, 1986. On that day he was suspended after an incident at work in which claimant’s supervisor regarded claimant’s behavior as insubordinate.

Claimant, a mechanic, was instructed to install three gear boxes on a production line. The work required him to set up each job individually after arranging with the line manager for a time for the line to be shut down. Generally, claimant would work alone, but the final stages in which the gear box was actually lowered into place required claimant to call another person to help him. Claimant’s supervisor expected that all three boxes could be installed well within claimant’s ordinary shift.

By 2:30 p.m. on that day, claimant had only completed the installation of one gear box. His supervisor thought that he was avoiding work and when claimant attempted to call for the assistance of the second individual, he was interrupted by his supervisor. They had words and claimant was instructed to report to the plant manager’s office. After a discussion there, it was concluded that claimant had been insubordinate and he was suspended. One week later, on March 12, at a meeting between management and claimant and his union representative he was offered reinstatement with no loss of benefits, including seniority. Under this plan he would not be paid for the week that he had been out of work. The only condition attached to his reinstatement was that he come back to work under "intent to discharge," a status in which he would be subject to summary dismissal after any infraction of company rules. Claimant declined the offer of reinstatement because he did not want to work under those circumstances. He was thereupon removed from the company’s payroll. One week later, at a similar meeting, another offer was made to claimant under which he could be rehired with no seniority and be given a different job from which, in time he could bid up to his most recent job level. He would be regarded if he accepted the offer, as a new employee. Claimant also rejected that offer.

OPINION: The credible evidence establishes that claimant’s employment ended on Mach 13 when he refused management’s offer to be reinstated, after a one-week suspension, under "intent to discharge." He was no longer an employee the following week when an offer of re-employment, under substantially less favorable circumstances, was made to him. Consequently, the events of that day are not in issue.

The March 13 offer, which essentically (sic) imposed a period of probation, was not satisfactory to claimant. His refusal of reinstatement under those circumstances was tantamount to quitting his job. Claimant has no demonstrated that, it was reasonable for him to reject reinstatement terms, which included a requirement that he be placed on probation. Consequently, his voluntary leaving of employment was without good cause under the Law.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is affirmed.

 

A-750-1988

Index No. 920-C13

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 15, 1988

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
EMPLOYEES EDUCATION INSTITUTIONS
REASONABLE ASSURANCE

Reasonable assurance exists only if the economic terms and conditions of employment are not substantially less favorable to the claimant in the next school year or term than the conditions in the prior year or term.

A.B. 379,090A

FINDINGS OF FACT: The claimant worked as a full-time school nurse-teacher by the school district herein for about 12 years until June 27, 1986, when her position was eliminated. She received a salary of $25,505 per year. By letter dated May 23, 1986, the claimant was advised that she would be placed on the active substitute list for the 1986-87 school year. Claimant responded that she would accept such employment and her name was placed on the list from which substitute teachers are called.

OPINION: In its Unemployment Insurance Program Letter dated December 24,1986, the United States Department of Labor has modified the definition of "reasonable assurance" to correct inconsistencies in the application of this between and within terms provisions, particularly where the circumstance of employment change from one academic period to the next. In order for reasonable assurance to exist, the economic terms and conditions of the position in the second academic term or period must not be substantially less than those for the job in the first period. The claimant had worked on a full-time position during the 1985-1986 school year, but was only placed on the list from which substitutes are called for the 1986-87 school year. The record thus lacks substantial evidence from which to conclude that the claimant would be given substantially the same amount of employment in the subsequent school year. Under these circumstances, we now conclude that the claimant did not have reasonable assurance of continuing employment in the 1986-87 school year under the same or substantially similar terms and conditions as her employment in the 1985-86 school year. Accordingly, she was eligible to receive benefits during the period under review herein.

DECISION: The decision of the Board filed January 28, 1987 (Appeal Board 375,224) is hereby rescinded.

The initial determination of the local office is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. In defining what constitutes "substantially less" we should utilize the same "ten percent" criterion used in determining if the wage offered for a job is "substantially less" favorable to the claimant than the prevailing wage [Section 593.2(d)].
2. This decision confirms the principles set forth in Reasonable Assurance – Amended Federal Definition (Field Memorandum 1-87). The discussion and examples set forth there continue to apply.
3. This rule supersedes those previously reported in the Interpretation Service at indices 930C-4 a and b (A-750-1867), 6 (A-750-1886) and 7 (A-750-1915). If those rules had not already been marked obsolete in accordance with Field Memorandum 1-87 that should be done now.

 

A-750-1990

Index No. 1150A-9

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 4, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
FALSIFICATION OF EMPLOYMENT APPLICATION

CONVICTION CONCEALED ON EMPLOYMENT APPLICATION

Falsely denying a prior conviction on an employment application because the disposition of the conviction was a conditional discharge constitutes misconduct.

A.B. 386,289

FINDINGS OF FACT: The claimant worked as a facilities coordinator for a bank from August 10, 1987 through November 20, 1987. At hire the claimant was requested to complete an employment application containing the question "have you ever been convicted of any crime, other than a traffic violation?" The claimant answered "no" to this question. As part of the employment process, the claimant was investigated by the company. The investigation disclosed that the claimant had a record of two criminal charges. Although claimant was given a conditional discharge for one offense and another was dismissed, the claimant was found guilty by a jury and was convicted of assault in the third degree. He was discharged for falsifying his employment application.

OPINION: The credible evidence establishes that the claimant was discharged from his employment because of his false statement on his application for employment. We disagree with the conclusion of the administrative law judge that the disposition of conditional discharge following a verdict of guilty of third degree assault does not constitute a conviction. The Board has explicitly held that the fact that a claimant is given a conditional discharge for an offense of which he was found guilty does not alter the status of a conviction (see Appeal Board 339,637). The claimant knew of his criminal record and his statement on the application for employment was a false statement concerning a material fact. Accordingly, we conclude that the claimant’s actions leading to his dismissal constituted misconduct in connection with his employment.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. A conditional discharge is a sentence pronounced by the court after conviction. As the name implies, it establishes certain conditions which the convicted party must observe to avoid a prison sentence.
2. In A.B. 339,637 cited by the appeal Board, the claimant had obtained a Certificate of Relief from Civil Disabilities. This document restores certain civil rights, including the right to vote, which are lost when a person is convicted of a felony. But, as the Appeal Board found, "this did not remove his conviction".
3. It is important to distinguish between questions concerning arrest and those that concern conviction. A full discussion of this subject is contained in Special Bulletin A-710-50, Discharge for Arrest or Conviction – The Human Rights Law, as revised on September 16, 1988.

 

A-750-1991

Index No. 1650-A10
1650-D9
1735-D4
1750-7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 10, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
ACTION OF EMPLOYER OR FELLOW EMPLOYEE
GRIEVANCES AND OBJECTIONS
OTHER TERMS AND CONDITIONS
OTHER REASONS

NO SMOKING POLICY

Disagreement with an employer’s new and reasonable "no smoking" policy, which makes provision to accommodate "smokers", does not constitute good cause for leaving employment.

A.B. 388,255

FINDINGS OF FACT: Claimant was employed by a public relations firm as an administrative assistant for approximately 15 months until May 5, 1988. On April 6, 1988, the employer instituted a new policy regarding smoking in its workplace. Thereafter, smoking would not be permitted in common areas, including the receptionist area, conference rooms, hallways and central production areas. Smoking would only be permitted in private enclosed offices and the employer’s library/mail room. Claimant, who was a heavy smoker, was assigned to work in one of the common areas. The employer made an attempt to accommodate her by allowing her the use of a private enclosed office, pending the employer's contemplated acquisition of additional office space. However, claimant's use of the enclosed office proved inconvenient for the employer. Therefore, she had to be moved back to the common area to perform her duties. Claimant became offended by the employer’s smoking policy and the employer’s determination that her use of the existing enclosed office would not suit the employer’s convenience. Therefore, she voluntarily resigned her employment.

OPINION: The credible evidence establishes that claimant voluntarily left her employment because she disagreed with and was offended by the employer’s smoking policy. There is no competent evidence to support the judge’s conclusion that claimant was discharged. Claimant’s reason for voluntarily resigning her employment must be considered personal and non-compelling. The employer’s smoking policy was reasonable. Moreover, the employer made attempts to accommodate the claimant by allowing her temporary use of an enclosed room in which she could smoke and work. We conclude that the claimant voluntarily left her employment without good cause and she is subject to disqualification. Inasmuch as claimant voluntarily left her employment there is no basis for the determination that claimant lost her employment through misconduct in connection therewith.

DECISION: The initial determination of the local office disqualifying claimant from receiving benefits because she voluntarily left her employment without good cause is sustained.

The initial determination disqualifying the claimant because she lost her employment through misconduct in connection therewith is overruled.

The decision of the administrative law judge is reversed.

COMMENT

In this decision the employer designated certain smoking areas that claimant could have used. It is immaterial that claimant had previously been allowed to perform her work in an office designated for smoking.

 

A-750-1992

Index No. 1160-7
1152-3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 21, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
ALCOHOL AND DRUGS
INSUBORDINATION

REFUSAL TO TAKE A DRUG TEST

Claimant’s refusal to submit to a urinalysis intended to determine drug use, when there is no reasonable suspicion of such use or specific advance notice that such testing would be a condition of employment, does not constitute misconduct.

A.B. 383,643

FINDINGS OF FACT: Claimant was employed as a letter of credit clerk for a bank for about three months until August 11, 1987, when he was discharged. On his first day of employment, claimant filled out a "post-employment questionnaire," in which he answered "yes" to the question: "Will you permit our physician to examiner you?" Several days later claimant was directed to go to the medical facility where employees underwent examinations for the employer. When he got to the facility he was handed a form which had a stamped statement on the top saying that the patient understood that he would be required to provide a urine specimen which would be tested for drug use. Upon reading this, claimant refused to provide a specimen and thus did not complete the physical examination. During the remainder of his employment claimant was repeatedly advised that unless he completed the examination he would be discharged, but he refused to do so because he believed that his privacy was being improperly invaded. He was discharged on August 11, 1987 because of his refusal to complete the physical examination.

OPINION: The credible evidence now before the Board establishes that prior to the time he went to take the physical examination, claimant had no notice that a condition of his continuing employment would be that he had to undergo a urinalysis test for drug use. In addition, there is no evidence that the employer had any suspicion that claimant might be using drugs. To the contrary, the evidence shows that the employer did not question this point at all.

There have been a number of cases involving the issue of whether particular public employees could be required to submit to drug testing urinalysis. While there have been decisions both upholding drug testing programs and enjoining them, all the cases have held that such tests constitute a search and seizure. In addition, even in those cases upholding drug testing, the courts have found that the employer must have had either a reasonable suspicion of drug use or there must have been adequate advance notice that such testing was a condition of employment. (Patchogue-Medford Congress of Teachers v. Union Free School District, 70 NY 2^nd 57; McDonell v. Hunter, 809 F 2^nd 1302 8th Cir., 1987); National Federal of Federal Employees v. Weinberg, 818 F 2^nd 935.) In the present case, the employer is a private corporation and thus can establish its own rules of employment. However, based on the evidence in this case and on the decisions cited above, we conclude that as there was no reasonable suspicion of drug use or specific advance notice that such testing would be a condition of employment, the claimant’s refusal to submit to urinalysis was not an act of misconduct.

DECISION: The initial determination of the local office is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. The Appeal Board has upheld in numerous cases disqualification for violations of a rule against drug use. The evidence of drug use was obtained because the employees were required to submit to a urinalysis. In all such cases there was evidence of both a known rule making this test mandatory and some reason to require the test, that is, a reasonable suspicion that the employee had violated the rule. In addition, employees were in occupations or industries where the public safety was involved (cf. A.B. 384,505 and A.B. 384,684 regarding transportation workers) or the sensitive nature of claimants’ employment (cf. A.B. 370,643 involving a hospital worker) made the need for testing apparent.
2. With this decision the Appeal Board has utilized the prohibition on the government from conducting an unreasonable search or seizure to determine the reasonableness of rule by private employers.
3. This release should be narrowly applied and limited to cases involving similar fact patterns. Furthermore, in all cases involving drug testing, even if based on reasonable suspicion and advance notice, before a disqualification can be imposed whatever objections claimant raises to the testing procedure must be considered.

 

A-750-1993

Index No. 1185-13
1152-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 21, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
ALCOHOL AND DRUGS
VIOLATION OF A COMPANY RULE

POSSESSION OR USE OF ILLEGAL DRUGS

Possession or use of an illegal drug in violation of an employer’s reasonable rule, known to the claimant, is not excused by claimant’s addiction to that drug, since such possession or use is an illegal act.

A.B. 384,850

FINDINGS OF FACT: Claimant was last employed as a track worker for a transit authority from September 19, 1983 through October 22, 1987. On October 22, 1987, the claimant was observed by a supervisor smoking marijuana on the way to work. Upon his arrival at work, the claimant was told by the supervisor to go for a drug test. Claimant did so, and he tested positive for marijuana and cocaine. The employer has a rule stating that use of a controlled substance by employees at any time is prohibited. Claimant knew of the rule. Claimant was discharged by the employer on October 30, 1987, as a result of his violation of the rule. He was referred to an employee assistance program, which in turn referred him to Day Top. Claimant has been undergoing rehabilitation for an addiction to marijuana and cocaine. Claimant attends meetings at least twice a week.

OPINION: The credible evidence establishes that the claimant was discharged from his employment for violating the employer’s rule against the use of certain illegal drugs. Even if we accept the fact that the claimant was addicted to these drugs, the fact still remains that use and possession thereof is a criminal act. In addition, the claimant’s work has a direct impact on the safety of other individuals and the public. Claimant’s possible addiction does not take his actions beyond the scope of misconduct under the Unemployment Insurance Law. Claimant’s acts, including working while under the influence of an illegal drug was against the employer’s rules and public interest. Under these circumstances, we find that the claimant’s actions constitute misconduct.

DECISION: The initial determination is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. This principle was also stated in A.B. 387,349 concerning a senior inspector employed by a computer manufacturing concern.
2. In both cases there existed an employer rule prohibiting the action for which claimant was discharged. The reasonableness of this rule was attested to by the fact that claimants were involved in occupations where they had a direct impact on the safety and welfare of either their co-workers or the public.
3. This release should be narrowly applied and limited to similar factual situations.

 

A-750-1994

Index No. 1605A-12
1715-5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 30, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
VOLUNTARY OR INVOLUNTARY
SCHOOL OR TRAINING COURSE, QUIT TO ATTEND

CHANGE IN SCHOOL SCHEDULE

A claimant’s choice to leave employment due to a change in claimant’s school schedule which the employer is unable or unwilling to accommodate, while continuing work is available in the claimant’s usual schedule, is tantamount to a voluntary leaving of employment without good cause.

A.B. 388,505

FINDINGS OF FACT: The claimant was employed as a quality control worker for a food processing firm for about two years until May 13, 1988. During this term of employment, she was concurrently attending college. She would work on a full-time basis during the semester breaks and the employer would otherwise arrange her work schedule so as not to interfere with her classes. When classes were in session, claimant worked four or five days per week, working a few hours in the morning and a few hours later in the day. On May 13, claimant informed the employer that she could no longer work her normal hours because her curriculum required her to be a full time student-teacher for a period of several weeks. She asked to work evenings and Saturdays, but the employer could not accommodate her and she was laid off effective that date.

OPINION: The undisputed evidence establishes that the claimant’s employment ended because the employer could not accommodate her request to work evenings and Saturdays rather than her normal part-time schedule. We disagree with the conclusion of the judge that "claimant did not quit her job but was laid off by her employer because he could not give her the hours that she required." Continuing work was available to the claimant but for her inability to work daytime hours because of her college requirements. As such, the choice to end the employment was made by the claimant and not the employer. It has been repeatedly held that leaving employment to attend school does not constitute good cause under the law (Matter of Schifferele, 33 AD 2d 847). Accordingly, we conclude that the reasons, subjecting her to a disqualification for voluntary leaving of employment without good cause.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge, insofar as appealed from is reversed.

 

A-750-1995

Index No. 1430-7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 13, 1988

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
CORPORATE OFFICERS

TEMPORARY SUSPENSION OF BUSINESS

An officer and principal stockholder, performing the activities necessary to maintain a business while operations are temporarily suspended due to a fire, is not totally unemployed.

A.B. 388,138

FINDINGS OF FACT: Claimant filed an original claim for benefits effective April 18, 1988. During his base period, claimant was employed by a corporation formed in September 1985, of which he was a 50 percent stockholder as well as the president. The corporation operated a store where food was prepared and sold for take-out purposes. On April 13, 1988 there was a fire at night and the place was damaged and needed substantial repairs. As of the date of the hearing, June 19, 1988, the repairs had not been completed, but were far enough along that claimant would have been able to return to work in about a week or two. The bulk of the repairs was to be done by the owner of the premises. Thereafter, the corporate owner of the business would need about a day or two to prepare the machines to reopen the business. During the period that the business was closed, claimant wrote six checks consisting of payments for taxes, electric utility and telephone bills. He last visited the premises about one week before the hearing.

OPINION: The credible evidence establishes that the employer corporation including the claimant were unable to conduct their business beginning with April 14, 1988. However, the business was not dormant. The premises were being renovated during that period and would be available for use in about a week or two. The Appeal Board has previously held that as long as the claimant remains an officer and stockholder and continues to render some services and there is no dissolution of the corporation, then the said officer and stockholder is not totally unemployed (Appeal Board 59,671). In the instant case the claimant wrote a number of checks during the period that the premises were being renovated. In addition, the claimant testified that after the renovations are completed by the landlord of the premises he would need a day or two to prepare the machines used in preparing the food that was to be sold for take home purposes. It cannot be said that during this period claimant was not engaged in corporate business. The corporation which had been formed in September 1985 remained in business and will continue in business after the renovations are completed. Under these circumstances, claimant was not totally unemployed during the period in issue.

DECISION: The initial determination of the local office is sustained.

The decision of the administrative law judge is reversed.

COMMENT

In this particular case, claimant paid the bills of the corporation. In A.B. 59,671, cited by the Appeal Board, claimant participated in efforts to settle the insurance claim. If there is an intent to resume the business, even minimal activities during the period when operations are temporarily suspended will lead to a determination of lack of total unemployment.

 

A-750-1996

Index No. 1105A-6

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 27, 1989

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
EVIDENCE REQUIRED

EFFECT OF ARBITRATOR’S RULING ON ACT OF MISCONDUCT

Although an impartial arbitrator reinstates claimant without back pay because the procedure under which he was discharged was instituted in violation of the union contract, the claimant is not excused from the consequences of his actions if the actions which caused his discharge constitute misconduct under the Unemployment Insurance Law.

A.B. 389,858

FINDINGS OF FACT: The claimant worked as a laborer for the employer herein for about six months until January 5, 1988. In October 1987, the employer instituted a new policy whereby workers would be given points for incidents of absences or latenesses. The accumulation of 20 points within a 12 month period would result in automatic termination of employment. As of January 5,1988, claimant had accumulated 18 points under this system. He reported to work late on January 6, giving him an additional two points at which time he was discharged. Claimant attributed this lateness to the fact that his alarm clock did not go off due to a power failure. Claimant filed a grievance through his union and the matter eventually went to arbitration. By decision dated May 31, 1988, the arbitrator found that the claimant did violate the employer’s attendance policy and also rejected claimant’s explanation for the incident of January 6, as unsupported by any evidence. However, the arbitrator ruled further that the attendance policy was implemented unilaterally by the employer in violation of the union contract and that the claimant should be reinstated to his job without back pay.

The claimant filed an original claim for benefits on January 20, 1988. He requested a hearing on the initial determination herein and a hearing was scheduled for March 1, 1988. The claimant did not attend the hearing on that day because he did not receive the notice.

OPINION: In the absence of any testimony or other documentary evidence that the hearing notice was mailed according to any established and regularly followed office procedure designed to insure that it was properly addressed and mailed, we accept as credible the claimant’s contention that he did not receive the notice for the hearing held on March 1, 1988. Accordingly, the claimant’s application to reopen the case should be granted and the case decided on the merits.

The evidence further establishes that the claimant’s discharge was upheld following a hearing before an independent arbitrator at which the claimant was represented by counsel and given the opportunity to present evidence and question opposing parties. As such, we are bound by the arbitrator’s findings of fact (Matter of Ranni, 58 NY 2^nd 715). The arbitrator found that the claimant had violated the employer’s attendance policy and further found that the final incident, which directly precipitated his discharge, was under circumstances which could not be excused. We also note that we would reach the same conclusion based on the testimony and evidence given by the parties at the hearing before the administrative law judge. In addition, the fact that the arbitrator reinstated the claimant because the attendance policy was instituted in violation of the union contract cannot serve to excuse the claimant from the consequences of his actions. Significantly, claimant’s was the first case involving the attendance policy challenged by the union. Accordingly, we conclude that the claimant lost his employment through misconduct in connection therewith.

DECISION: The claimant’s application to reopen A.L.J. Case No. 388-01084 is granted.

The initial determination of the local office is sustained.

The decision of the administrative law judge is modified accordingly and, as so modified, is affirmed.

 

A-750-1997

Index No. 1460 G-7
910-11

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 15, 1989

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
DETERMINATION OF BENEFITS

SICK LEAVE PLAN

A claimant is totally unemployed despite the receipt of fully paid sick leave pursuant to an employer plan, since such weeks of sick leave would not be considered remuneration or weeks of employment for the purpose of establishing claimant’s future entitlement.

Matter of Mark Rappaport ____ AD 2^nd ____

Decided October 20, 1988

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 26, 1987, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant, a firefighter, sustained a broken wrist while off duty in June 1985. As a result of his injury, claimant was unable to work as a firefighter for approximately one year. Claimant was able to perform light duty as of January 10,1986, but no suitable position was available at that time.

Claimant thereafter applied for unemployment insurance benefits and the local office determined that claimant was eligible to receive benefits during the period from January 13, 1986 to June 1, 1986 when claimant returned to work as a firefighter. The employer objected to the initial determination on the ground that, inter alia, claimant was not totally unemployed prior to March 16, 1986 because he remained on the employer’s payroll until this date. A hearing was held in which there was evidence that by the end of 1985, claimant had exhausted all of his accumulated sick leave time. During the period in issue, January 13, 1986 through March 16,1986, claimant was paid on the basis of his 1986 sick leave entitlement and pursuant to a term of the collective bargaining agreement, which provided that an employee who has exhausted all of his sick leave time may use current year vacation time as additional sick leave. Following the hearing the Administrative Law Judge (hereinafter ALJ) ruled that claimant was not totally unemployed during the period he received his salary.

The Unemployment Insurance Appeal Board subsequently reversed that part of the decision of the ALJ and sustained the initial determination finding claimant eligible during the entire period in question. The Board reasoned that claimant’s vacation time was converted into additional sick leave under the collective bargaining agreement and such sick leave benefits do not constitute remuneration under Labor Law Section 517 (2)(a). Since claimant performed no services for the employer during this period and received no remuneration, the Board concluded that claimant was totally unemployed and eligible for benefits. This appeal by the employer ensued.

The employer contends that the Board erred in finding claimant eligible for unemployment benefits during the period he continued to receive his full salary. Remuneration, as defined in Labor Law Section 517, is relevant to making a base period determination of a claimant’s eligibility [see, Matter of Bachuretz (Roberts), ___ AD 2d ___ (May 5, 1988); Matter of Rothstein (Roberts), 96 AD 2d 699]. The Board reasoned that since claimant’s weeks of paid sick leave would not be considered remuneration or weeks of employment for the purpose of establishing claimant’s future eligibility for benefits, it should not be considered employment or compensation so as to make claimant ineligible at present. The Board’s determination of what constitutes "total unemployment" under the Labor Law is entitled to great deference and must be upheld if it is rational [see, Matter of Berger (Ross), 41 NY 2d 1065, 1066; Matter of Fisher (Levine), 36 NY 2d 146, 150]. We are not persuaded that the Board’s decision here was irrational. The Board could also rationally conclude that claimant’s vacation time allotment was converted into additional sick leave time under the provisions of the collective bargaining agreement.

The employer also contends that the Board erred in finding that claimant was available for light-duty employment during the period in question. There was evidence in the record, however, that claimant had prior experience as a clerical worker and was able to perform such duties after mid-January 1986. Hence, the Board’s determination that claimant was "reasonably fitted" and available for this type of employment was supported by substantial evidence [see, Matter of Levin (Catherwood), 22 AD 2d 286, appeal dismissed 15 NY 2d 1034]. We have considered the employer’s other contentions and find them also to be without merit.

Decision affirmed, without costs.

COMMENTS

1. This rule is consistent with the holding in A-750-1843 that such weeks will not be used for entitlement purposes. It is also the logical converse of the holding in Special Bulletin a-710-42. "Remuneration and Weeks of Employment", that

"Whenever any period, under the principles here outlined, represents a period of employment, the claimant is not totally unemployed in that period."

2. In all cases such as this, the availability and capability of the claimant for work should be carefully examined before eligibility is established.

 

A-750-1998

Index No. 1635A-4
1660A-6

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 16, 1989

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION

VOLUNTARY QUIT – PARENTAL RESPONSIBILITIES

Voluntary leaving is with good cause despite the fact that child care is available, when claimant, a single parent, is permanently assigned to a shift that precludes her from spending any time with her children.

A.B. 390,586

FINDINGS OF FACT: Claimant was employed as an assembler for a lighting manufacturer from September 1985 through October 11, 1988. She is a single parent with two young children. When hired, she worked on the first shift, enabling her to be home with her children. Eight months later due to lay-offs based on seniority, the claimant was bumped to the third shift where she worked for about five months. She continued to request reassignment to the first shift. The employer, appreciating her family situation, transferred her back to the first shift at the next opportunity, where she worked from December 1987 through May 1988. However, there was another lay-off and the employer was required to reassign claimant again, this time to the second shift from 3:30 p.m. to midnight. These hours did not allow the claimant any time to be with her children as either she was at work or they were in school. Her landlord looked in them while she was at work. The employer was fully aware of her continuing problems with this shift; however, it could do nothing because of the terms of its union contract. The claimant continued to request an hope for reassignment to the first shift. However, when further lay-offs on the first shift were implemented, dashing such expectations, she resigned from her employment as the only way to be able to spend any time with her children in the near future.

OPINION: The credible evidence establishes that the claimant was hired by the employer to work on the first shift. Although she later worked for periods of time on the second and third shift, she never accepted this condition of employment, continuing to object to such assignment and seeking reassignment to the first shift. She in fact was returned to the first shift for six months before being transferred yet again to the second shift. We, therefore, conclude that the fact that she did not immediately leave her employment upon assignment to the second shift was not an acceptance of such condition of employment. It was a reasonable effort by claimant to protect her employment while awaiting reassignment to the first shift. However, when it became evident, following a further lay-off, that an opening would not become available on the first shift the claimant left her employment with good cause. The necessity that she, as a sole parent, have some time with her young children gave her good cause to leave her employment.

DECISION: The initial determination of the local office is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. This decision recognizes that the role of the parent exceeds the mere securing of the physical well-being of the child. The children in this case were fourteen and seven. The "needs" of the children which claimant could fulfill by spending time with them clearly exceeded their physical needs.
2. It should be noted that the claimant was working at 4:00 p.m. to midnight shift, so that there was absolutely no opportunity for her to spend time with her children while they were in school and she was working. This circumstance should be distinguished from a claimant’s mere desire to spend more time with his/her children as discussed in A-750-1628.
3. A second element of this case is the permanent nature of the assignment. A temporary assignment to such a shift would not provide good cause.
4. The final element which must be considered was claimant’s status as a single parent. Because of this, there was no one else available to provide parental supervision, guidance and support.

 

A-750-1999

Index No. 1110-11

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 24, 1989

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
ABSENCE AND LATENESS

TRANSPORTATION DELAYS

Tardiness caused by a transportation delay on claimant’s last day of work is not misconduct when claimant had followed the employer’s prior advice to leave home at an earlier hour to overcome these delays, but was nevertheless unavoidably late.

A.B. 390,570

FINDINGS OF FACT: The claimant was employed as a trimmer in a handbag factory for approximately two and a half years until April 18, 1988. She was scheduled to start work at 8:00 A.M. During the last months of her employment, claimant was warned about her tardiness. All of the latenesses were due to transit delays. After being advised by her employer to leave earlier in the morning in order to arrive on time, the claimant did so. She allowed an hour and a half to one and ¾ hours for travel time. On her last day of work, the claimant came in approximately nine minutes late. This was caused (by) a fifteen-minute verified delay of the train claimant took to work. The train also skipped the station at which claimant needed to alight in order to go to her job site. If there were not a transit delay, she would have arrived at her place of employment at the time scheduled for her to start work. Her employer discharged the claimant because of her pattern of lateness.

OPINION: The credible evidence now before the Board establishes that the claimant was approximately nine minutes late to work on April 18, 1988, because of a subway delay. After being warned by her employer about her tardiness and after receiving the employer’s advice to leave home at an earlier hour in order to overcome transit delays, claimant allowed more time for travel. Claimant’s lateness on her last day of work because of a transit delay, together with the train skipping her station, in spite of her efforts to get to work on time, was beyond her control, nor foreseeable by her. The fact that the employer chose to discharge this employee after a certain number of latenesses, does not require the conclusion that she committed an act of misconduct in relation to her employment (A.B. 360,930; A.B. 357,414; A.B. 346,580; A.B. 331,918). Accordingly, we conclude that claimant lost her employment under non-disqualifying conditions.

DECISION: The initial determination of the local office is sustained.

The employer’s objection is overruled.

The decision of the administrative law judge is reversed.