A-750 2000 Series
A-750-2000
INDEX
920-C14
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
EMPLOYEES OF EDUCATIONAL INSTITUTIONS
Reasonable assurance
does not exist for a per diem substitute employee, who had enhanced earnings
because of a steady assignment in the prior school year or term, unless the
employer can demonstrate that claimant's earnings will not be substantial less
in the upcoming school year or term.
A.B.389,347
FINDINGS OF FACT: The claimant was employed by a local school
district as a substitute bus driver, where she worked from September 9, 1987
until June 17, 1988. During the 1987-88 school year, the claimant was the
least senior of the substitute bus drivers. However, during the 1987-88
school year, a significant number of regular full-time jobs were
available, on which substitute bus drivers could bid. More substitute jobs became
available to the claimant as more senior substitute bus drivers bid on to
regular jobs. From February, 1988 through June, 1988, the claimant bid on and
got two steady jobs and worked full-time for fourteen weeks. Although the
claimant was paid $5.60 an hour whether she worked as a substitute or on a
regular job, the increase in hours worked made a significant difference in
claimant's weekly wages. While working as a substitute the claimant sometimes
only made $12 a week, on a steady job she made $226 a week.
The school board sent
the claimant a letter dated May 21, 1988, advising her that the district was
placing her name on an active substitute bus driver list for the 1988-89 school
year. The claimant received the letter and returned a signed copy to the
employer dated June 3, 1988. The employer's representative at the hearing did
not know how the list was compiled, the number of people on the list, or how
someone is called from the list. He also did not know claimant's seniority
status for the 1988-89 school year. While during the 1987-88 school year
there was a great deal of turnover and a number of regular bus drivers suffered
extended illnesses, the claimant was informed by the employer that all the
regular bus drivers were returning for the 1988-89 school year and no steady
runs were expected to become available.
OPINION: To establish reasonable assurance of
employment for substitute employees, it must be demonstrated, with competent
testimony from knowledgeable witnesses concerning the employer's personnel
practice and hiring procedures, that the employer has expressed a good faith
willingness to place and/or has in fact placed the claimant's name on the list
from which substitutes are called, and that the employer will in good faith
consider the possibility of offering work to the claimant.
The evidence establishes
that the claimant has been employed as a substitute bus driver by the employer
herein. She received a letter from the employer which claims that the employer
will continue using her services in the next school year. However, the employer
offers no competent proof that the claimant's name would be or was listed, nor
that the claimant would, in good faith, be considered for substitute work. The
employer's representative has no personal knowledge as to the employer's
practices and procedures concerning the hiring and calling of substitute bus
drivers. There is no testimony from those who compiled or use the list from
which substitutes are called. However, even had the employer presented proof that
these conditions had been satisfied, the existence of reasonable assurance in
this case would not be established as the evidence shows the economic terms and
conditions of the job offered in 1988-89 are substantially less than the terms
and conditions for the job in 1987-88 (see Unemployment Insurance
Program Letter, 4-87, dated December 24, 1986). During the 1987-88
school year, the claimant worked fourteen weeks on a regular job and, because
of the number of steady jobs available to substitute drivers, even when
claimant herself could not bid a regular job, her chances of obtaining a
substitute job were greater as many of the other substitute drivers were on
steady jobs and she was called more often. The claimant credibly testified that
the employer reported to her that no steady jobs were expected to be available
during the 1988-89 school year. The employer has not rebutted this
contention. We conclude that as a result of this situation, there
is a substantial reduction in the economic terms and conditions of the job from
last year to this year. Under all of these circumstances, we conclude that the
claimant did not receive reasonable assurance and the provisions of Section
590.11 of the Law do not apply.
DECISION: The initial determination of the local office
is overruled.
The decision of the
administrative law judge is reversed.
COMMENTS
1. This rule supersedes
the principles set forth in Field Memorandum 5-88 which should be marked
obsolete and no longer followed.
2. For a discussion of
reasonable assurance "economically defined", please see A-750-1988.
3. Complex questions in
this area may be referred, through supervisory channels, to the Adjudication
Services Office, Interpretation Section (Telephone 212-352-6850).
Index
1605A-11
1605B-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July,
1989
Interpretation
Service-Benefit Claims
Voluntary Separation
Voluntary or Involuntary
Existence of Employment Relationship
A claimant, who is
discharged immediately upon giving notice of intent to leave at a future date
for personal, non-compelling reasons has voluntarily quit his job
without good cause if the employer pays, upon separation, an amount equivalent
to the salary claimant would have received through the intended date of
leaving.
AB 389,848A
FINDINGS OF FACT: Claimant, a file clerk, worked in the credit
department of a bank from April, 1987 through February 10, 1988. On February
10, claimant's supervisor asked to see claimant concerning several work related
matters. The supervisor advised claimant that she was no longer to eat
breakfast at her desk or have visitors when she was working, and that she was only
to do credit card checks required by her work and that she was not to pull her
supervisor's file for a credit check. She was also advised that it had again
been reported that claimant had a body odor and she was advised that she must
follow the employer's dress code. While these matters were being raised by her
supervisor, claimant, admittedly, began yelling and using the word
"shit" in response to her supervisor's comment's. (When claimant
returned to her work area, she, admittedly, used the word "fuck".
When discussing with co-workers what had occurred.) During the course of the
discussion with her supervisor, claimant tendered her resignation with
two weeks notice, which was accepted by her supervisor. The employer,
thereafter, elected to pay claimant the two weeks salary in question
and had claimant leave the employer's premises immediately because of
claimant's behavior following her resignation. At no time during the discussion
with her supervisor was claimant told that her job was in jeopardy or that she
was going to be fired as a result of the problems that had arisen.
OPINION: The credible evidence establishes that
claimant quit her employment for personal, non-compelling reasons within the
meaning of the law. Claimant's supervisor's discussion with claimant on
February 10 was solely concerning matter which were of legitimate business
concern to the employer and her remarks in no way breached the bounds of
propriety. Claimant's decision to leave, under the circumstances was without
good cause. The employer's decision to advance claimant's last day does not, in
this case, alter the voluntary nature of her leaving as the employer paid her
salary through the date she declared to be her last.
DECISION: The decision of the Board filed August 11,
1988 (A.B. No. 388,171) is hereby rescinded. The initial
determination of the local office is sustained. The decision of the
administrative law judge is reversed.
COMMENTS
1. The rule reported
above is the same as the rule reported in A-750-1989. The rule itself need not
be changed. However, the Appeal Board number of this case (389,848A), and the
serial number of this case (A-750-2001), should be substituted at the
appropriate listing in the Interpretation Service Index.
2. The Appeal Board, on
claimant's application reopened its decision in AB 385,482 which was originally
reported as A-750-1989. Upon this reopening (AB 388,334A), while adhering to
the same principle that claimant's separation was voluntary, the Appeal Board
found that the circumstances which caused claimant to quit his job constituted
good cause. The Appeal Board decision as originally reported in A-750-1989 is
significant because in that case (AB 385,482), the Board specifically
considered and rejected the argument that factors such as the continuation of
full salary and all fringe benefits, which are necessary to determine an issue
of total unemployment as set forth in AB 361, 815 (see A-750-1961 set forth at
Index No. 1460C-7), were necessary to resolve the question of the nature of
claimant's separation.
3. In the present case,
the Appeal Board was again faced with a situation in which claimant was;
discharged immediately upon giving notice of intent to leave at a future date.
Claimant, however, was paid through her intended last day of work. After
finding that claimant's reason for quitting was without good cause, the Appeal
Board said "The employer's decision to advance claimant's last day does
not, in this case, alter the voluntary nature of her leaving as the employer
paid her salary through the date she declared to be her last." This
finding is consistent with comment 2b in the discussion of Matter of
Senator (see A-750-1897 at Index Number 1605A-5).
4. As is clearly
illustrated by the events reported above, in all similar cases where a
claimant's action of giving notice of intent to leave at a future date could
result in a finding that the separation is voluntary, it is nonetheless
necessary to determine whether that reason constitutes good cause.
Index
701-1
765-13
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIUISION
ADJUDICATION SERVICES OFFICE
July,
1989
INTERPRETATION
SERUICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
There must be a causal
connection between any lack of specific advice at the local office and the
claimant having removed herself from the labor market in order for the lack of
advice to form a basis for claimant to be held available for employment.
A.B. 390,926
FINDINGS OF FACT: Claimant filed an original claim for benefits
effective October 10, 1988, after her employment ended because claimant’s child
care arrangements were disrupted. Thereafter and at all times in issue,
claimant was unable to make child care arrangements for her two grandchildren,
aged two and four. Although she was aware of her obligation to seek work at
least as early as October 24, 1988 she did not do so because she was unable to
arrange for any reliable child care.
OPINION: The credible evidence clearly establishes
that the claimant did not look for work because she did not have, nor could
she arrange, any reliable child care during the period under
consideration. We see no causal connection between any lack of specific advice
at the local office and the claimant's having removed herself from the labor
market both in the leaving of her employment and in her inability to
look for work. We conclude that the claimant was not available for employment
and note that we have repeatedly so held in the past in similar cases (A.B.
907,813; A.B. 918, 434 and A.B. 386,140).
DECISION: The initial determination of the local office
is sustained. The decision of the administrative law judge is reversed.
COMMENTS
1. The Municipal Labor
Committee Consent Judgment (MLC) requires the local office to inform claimants
what steps they must take in order to become eligible and maintain eligibility
for benefits. This requirement is consistent with A-710-23 (Revised) and
Section 5060-5099 of the Unemployment Insurance Manual and is unchanged by this
decision. The MLC also requires that where "The Unemployment Insurance
Division has failed to follow its own procedures and where such failure results
in a denial of benefits, an initial determination must be overruled. In this
case the Appeal Board determined that the claimant's withdrawal from the labor
market did not result from local office action or inaction and, therefore, the
conditions in the MLC which would require that benefits be granted did not
occur.
Index
1645A-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARV SEPARATION
FOLLOWING SPOUSE
FOLLOWING SPOUSE-MEDICAL REASON
Quitting a job to move
with a family unit to another area is with good cause provided the relocation
is for a compelling medical reason. There is no requirement that the relocating
claimant be rendering personal care to the member of the family unit.
A.B. 382, 5774A
FINDINGS OF FACT: Claimant was employed as an air-conditioning
mechanic by the employer for approximately 22 years. He is married. His wife
suffers from asthma, diabetes, arthritis, and a chronic hernia, even after
surgery. She was advised by her doctor to relocate to a warmer climate as the
cold aggravated her conditions. Claimant and his wife decided to move to Puerto
Rico for her health. The claimant resigned from his job effective March 13,
1986 in order to relocate to Puerto Rico with his wife. Effective July 27,
1987, Section 593.1(b) of the Unemployment Insurance Law was amended, repealing
that portion of the statute which provided for automatic statutory
disqualification for voluntary leaving employment to follow a spouse to another
locality. This amendment was to take effect immediately and was to be
"effective in pending determinations." The claimant's appeal to the
Board was filed July 29, 1987.
OPINION: The credible evidence establishes that the
claimant's wife suffered from a variety of serious ailments and was advised by
her doctor to relocate to a warmer climate. The claimant left his job to go
with his wife to Puerto Rico based on this advice.
The record establishes
that the claimant's case was pending resolution at the time Section 593.1(b) of
the Law was repelled. Therefore, we conclude, at this time, that her case must
be decided under the Law as amended and presently in effect, as the Law was to
be effective in pending determinations. Accordingly, we conclude that the
claimant is not subject to disqualification for voluntary leaving of employment
to follow his spouse to another locality, as presently there is no such
statutory disqualification, such statute having been repealed by amendment to
the Law.
In view of the
foregoing, it is necessary for the Board to rule on the remaining issue of
whether claimant had good cause to leave his employment. The purpose of the
amendment repealing the automatic, statutory disqualification was to give
claimants, who leave their jobs to follow their spouse to another locality, an
opportunity to make a showing of good cause for so leaving. See: 210 Session,
Laws of New York, Memo. of N.Y.S. Department of Labor, Chapter 418,
Page A-897 (McKinneys, Reg. Sess., 1987). Accordingly, the Board must review
the reasons claimant has for relocating to an area that requires leaving his
employment to determine if good cause exist for such leaving. The
Board concludes that the claimant's leaving employment to relocate to Puerto
Rico with his family for his wife's health, on the advice of her doctor, was
with good cause. The prior requirement that a relocating claimant had to be
going to render personal care to his/her spouse need no longer be met.
It must only be shown that the spouse's medical reasons for relocating are
compelling and supported by the record. To the extent that prior Appeal Board
decisions have reached contrary results, we will no longer follow them.
Accordingly, we conclude that the claimant is not subject to disqualification.
DECISION: The initial determinations of the Out-of-State
Resident Office are overruled.
The decision of the
administrative law judge is reversed.
COMMENTS
1. Section 1645 headed
"Following Spouse" (Section 593.1(b)(2) and the rules reported
therein should be removed from the Interpretation Service Index, as they
reflect case law established under the section of law repealed effective July
27, 1987. A new Section 1645, headed "Following Spouse", should be
established and this rule numbered 1645-1.
2. In this decision, the
Appeal Board has arrived at a test to determine "good cause" similar
to that suggested in Field Memorandum 5-87. Having determined, based or
credible and reasonable medical evidence, that the claimant's spouse or any
other member of the family had a compelling medical reason to relocate, the
Board reasoned that this alone gave claimant good cause to quit.
3. The extension of this
rule to other family members is consistent with the rule previously reported as
A-750-1549.
Index
1645A-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
Quitting a job to follow
a spouse who moves to another locality after retiring for medical reasons is
without good cause unless there is medical evidence that the spouse's condition
would benefit front taking up residence in the new locality.
A.B. 391,034
FINDINGS OF FACT: The claimant was last employed as an assembly
mechanic for a manufacturer of photo-related products for almost five years
until August 19, 1988. The claimant quit her employment in order to move to
Hawaii with her husband who was retired. He has had high blood pressure and
gout for at least three to four years. However, the claimant and her husband
were not advised by a medical professional that it was advisable for her
husband to leave New York for health reasons. Claimant's husband disliked the
winters in their hometown and desired to move to, and build a home in Hawaii.
OPINION: The credible evidence establishes that the
claimant left her employment in order to relocate to Hawaii with her husband.
Claimant's husband decided to move from New York to Hawaii in order to enjoy a
more pleasant climate. Although the claimant contends that her husband's
medical condition was the reason for this move, claimant admits he was not
advised by a doctor to relocate nor did he expect a specific improvement in his
medical condition by the move to Hawaii . Her husband simply expected
that he would feel better in general if he moved to a tropical climate. We
therefore conclude that the claimant relocated with her husband to Hawaii for
persona and non-compelling reasons. Accordingly, we conclude that the claimant
left her employment without good cause.
DECISION: The initial determination of the Out-of-State
Resident Office is sustained.
The decision of the
administrative law judge is reversed.
COMMENTS:
1. This decision
amplifies the principles stated in Field Memorandum 5-87 that "the test of
compelling reason must be applied to the reason for the move and not to the
spouse's reason for leaving employment."
2. A desire to move to a
more pleasant climate because of a mere expectation that the spouse will feel
better in general, does not constitute good cause even if a doctor were
to give such advice for such reason. As the Appeal Board states, there must be
a "specific improvement in his medical condition" anticipated from
the relocation.
3. This decision
reinforces the obligation of the local office personnel to evaluate the
credibility of medical evidence. An assertion by a doctor that a
relocation will improve claimant's condition, must be evaluated against
common knowledge of the specific causes and cures for certain conditions. For
example, a person who retires because of a heart condition and relocates from
New York City to Buffalo, where an adult child resides, would not provide
his/her spouse good cause to quit unless medical evidence shows some aspect of
that move that would result in a specific improvement. It is well known that
the climate is even more severe in Buffalo than New York. Similarly, a person
who moves to Florida following the amputation of a limb, would not
provide his/her spouse good cause simply because a doctor asserts a warmer
climate would be desirable.
Index
915 B-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AMOUNT OF REDUCTJON
INCREASE IN PENSION AMOUNT
If claimant's employment
in the base period increases his preexisting pension by any amount, the entire
amount of the pension, not just the amount of the increase, is used in
calculating tile appropriate reduction.
A.B. 390,821
FINDINGS OF FACT: Claimant retired in 1981 after working for a
trucking company for 25 years. Thereafter he began to receive pension payments
from the Teamster's benefit funds. Shortly thereafter, as part of divorce
settlement, claimant turned over the pension checks to his ex-wife and has not
received them since. Prior to filing his original claim for benefits effective
July 20, 1987. he had worked about four months for an electrical
company and lost this employment when the plant closed. This company made no
contributions to claimant's pension funds. In August and November, 1986, during
claimant's base year, he worked a total of 50-1/4 hours for two trucking
companies. As a result of this work the companies contributed a combined total
of $84.04 to claimant's pension funds. These contributions resulted in an
increase of $2.19 in claimant's monthly pension. Claimant received $3,168 in
unemployment insurance benefits, prior to the redetermination of his claim.
OPINION: Section 600.7(a) of the Unemployment Insurance
Law requires that claimant's a benefit rate shall be reduced if the claimant is
receiving a pension and such pension payment is made under a plan maintained or
contributed to by his base period employer and the remuneration from such
employer after the beginning of the base period affected his eligibility for or
increased the amount of such pension. The credible evidence establishes that
claimant's minimal work for the trucking companies in his base year had the
effect of increasing his pension by a monthly total of $2.19. Accordingly,
Section 600.7(a) mandates that his benefit rate be reduced.
Section 600.7(b) then
enumerates the manner in which claimant's benefit rate shall be reduced if
sub-section (a) applies. This provision requires that the benefit rate shall be
reduced by the largest number of whole dollars which is not more than the
pro-rated weekly amount of such pension payments where, as here, the claimant
made no contributions to the pension. Accordingly, even though claimant's base
period employment had the relatively insignificant effect of increasing the
monthly amount of his pension by only $2.19, the Law compels that the entire
amount of his monthly pension be considered in reducing his benefit rate. He
are thus constrained to conclude that the local office properly reduced his
benefit rate from $180 to $52 and that claimant was thus overpaid in the amount
of $3,168 in benefits.
DECISION: The initial determinations of the local office
are sustained.
The decision of the
administrative law judge, insofar as appealed from, is reversed.
INDEX
1645A-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1989
INTERPRETATION
SERVICE-BENEFIT- CLAIMS
VOLUNTARY SEPARATION FOLLOWING SPOUSE
Quitting a job to move
with a spouse who left the area for a personal, non-compelling reason (e.g.
attendance at college) is without good cause.
AB 391,210-A
FINDINGS OF FACT: Claimant was employed as a custodial worker
for a municipal school district for about five years at an annual salary of
$14,739. In 1987, his wife relocated to Puerto Rico in order to complete her
undergraduate credits leading to a bachelor of arts degree in
English. Her studies are to be completed in May of 1989. Claimant's wife
returned to Puerto Rico to complete her studies because she learned she would
be unable to transfer her already earned 60 credits to a college convenient to
where she and her husband worked in New York State. In Puerto Rico, claimant's
wife lives in a house where she pays only $35 per month for gas utilities plus
water bills that were about $15 per month. Claimant's apartment in New York
State cost him $260 per month plus electric utilities. Claimant submitted his
resignation to the employer to be effective March 18, 1988 because he wished to
relocate to Puerto Rico and join his wife. Claimant believed that he would be
financially better off without supporting two households. Claimant did not have
a prospect for employment in Puerto Rico. Continuing work was available for him
at the school district. Claimant did not request a leave of absence.
OPINION: The credible evidence establishes that
claimant voluntarily left his employment while continuing work was available to
him in order to relocate to Puerto Rico where his wife was pursuing a college
education. As claimant had no prospect for a job in Puerto Rico we reject his
contention that he would be financially better off by leaving his employment in
New York. It is not significant nor relevant in this case that claimant
did not request a leave of absence from his employment. Had he requested
and been granted a leave of absence and then applied for unemployment insurance
it would still be necessary to determine whether he had good cause to have left
his employment to go on the leave of absence. In the circumstances of this
case, we are only concerned with whether or not the reasons for claimant's
resignation constituted good cause under the Law. We conclude that under these
circumstances, claimant had no compelling reason to leave his employment.
Accordingly, the claimant is properly subject to the disqualification.
DECISION: The decision of the Board filed December 23,
1988 (Appeal Board 389,676) is hereby rescinded.
The initial
determination of the local office is sustained. The decision of the
administrative law judge is affirmed.
COMMENTS
1. This decision is
consistent with the principles set forth in Field Memorandum 5-87.
2. In this case,
claimant had an annual salary of $14,739 and a monthly rent of $260. Since
claimant would have no job in Puerto Rico, the Board rejected his contention
that he would be financially better off by leaving his employment because he
would therefore not have to support two households.
3. In a different case
(AB 390,758) the Appeal Board sustained a determination of voluntary leaving of
employment without good cause when claimant left to move with her husband to
Indiana where they could live rent free. The Board observed "the
unemployment insurance program was never intended to insulate individuals from
economic adversity to the extent of guaranteeing their living standards".
Claimant is required to demonstrate "why her family could not have
continued to reside in the apartment they were living in or why they could not
have obtained affordable housing elsewhere in the vicinity."
4. If claimant raises
the issue of the affordability of housing with reduced income, both the
possibility of remaining in the present domicile or moving to less expensive
living quarters should be explored.
INDEX
1645A-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
Quitting a job to move
with a previously unemployed spouse who found work in a different locality is
with good cause.
A.B. 382,135
FINDINGS OF FACT: The claimant was employed as a secretary
for a hospital for 13 years. She is married and has two children living at home.
Her husband lost his job in June of 1986. He was unemployed for almost a year,
at which point he found a job in Georgia which he took. The claimant's earnings
of $15,000 a year had not been sufficient to cover the family's expenses during
her husband's period of unemployment. A foreclosure action was filed against
their home and their car payments and other financial obligations were in
arrears. When her husband obtained employment out-of-state, they sold their
house and claimant left her job in order to relocate to Georgia with her
family.
Effective July 27, 1987,
Section 593.1 (b) of the Unemployment Insurance Law was amended, repealing that
portion of the statute which provided for an automatic statutory
disqualification for voluntarily leaving employment to follow a spouse to
another locality.
OPINION: The credible evidence establishes that the
claimant's husband found work in Georgia, following a year of unemployment.
During this year, the family incurred significant debts which forced them to
sell their house in New York under threat of foreclosure. The purpose of the
amendment repealing the automatic statutory disqualification was to give
claimants, who leave their jobs to follow their spouses to another locality, an
opportunity to make a showing of good cause for so leaving. (see: 210th Session
Laws of New York, Memorandum of New York Department of Labor, Chapter 418, page
A-897) (McKinneys Regular Session, 1987). Accordingly, the Board
must review the reasons such a claimant has for relocating to an area that
requires leaving employment, to determine if good cause exists for such
leaving. The Board concludes that the claimant's leaving employment to relocate
to Georgia with her husband, who had obtained employment there, was with good
cause. Accordingly, we conclude that the claimant is not subject to
disqualification.
DECISION: The initial determination of the local
office disqualifying the claimant from receiving benefits effective: May 2,
1987, because she voluntarily left her employment without good cause, is
overruled.
The decision of the
administrative law judge is rescinded, as ordered.
COMMENT
This decision is
consistent with the principle! stated in Field Memorandum 5-87 that
leaving a job because a spouse accepted new employment is leaving for a
compelling reason, thus, a leaving for good cause.
INDEX
1645A-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
Quitting a job to move
with a spouse who is transferred to a different locality is with good cause.
A. B. 383,990
FINDINGS OF FACT: The claimant worked as a production supervisor
for the employer from December, 1979 until July 31, 1987. He earned $19,872 a
year. His work site was in Western, New York. The claimant's wife worked as a
store manager for a retail store, also located in Western, New York. She earned
$16,000 a year. She was informed in early 1987 that her store was scheduled to
be closed and that she was being transferred to another store in Tennessee. Her
employer offered no other job prospect. She relocated to Tennessee with the
couple's children, and began work in her new position in March, 1987. Her base
salary was increased to $18,500 a year and the employer estimated that she
would be earning $21,000 a year with bonuses and/or commissions. Claimant
resigned his position on July 31, 1987 and relocated to Tennessee to join his
family.
OPINION: The credible evidence establishes that the
claimant voluntarily left his employment in order to be with his wife and
children who had moved to Tennessee because of his wife's mandatory transfer
there. She had relocated to preserve her employment. The transfer also entailed
benefits such as a raise and promotional opportunities. Once it was determined
that claimant's wife was relatively secure in her new job, the claimant
submitted his resignation in order to join his wife and children in Tennessee.
Under these circumstances, we conclude that the claimant voluntarily left his
employment with good cause.
DECISION: The initial determination of the Out-of-State
Resident Office is sustained.
The employer's objection
is overruled.
The decision of the
administrative law judge is reversed.
COMMENTS
1. This decision is
consistent with the principle in Field Memorandum 5-87 that leaving a job
because of the transfer of a spouse constitutes a compelling reason.
2. It should be noted
that in this case the transfer was mandatory. The spouse could not have
continued working in the prior location because it had been closed.
3. In another recent
case (AB 381,725) the Appeal Board dealt with a voluntary transfer. They found
that the claimant who quit her job to move with a spouse who had
requested a transfer, did so with good cause. In support of this decision they
stated that among the reasons for good cause was, "his employment would be
more secure there due to his employer' s plans for layoffs
in New York and expansion in Florida." It is unclear from this case what
decision the Appeal Board would make in the event of different circumstances
leading to a voluntary transfer. Until a definitive decision is received from
the Board, we should continue to find good cause in all cases where the spouse
has employment to go to in the new location.
INDEX
1645A-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
Claimants who leave
their jobs to relocate to another locality must demonstrate they had good
cause, aside from maintaining the marital relationship, to do so.
A. B. 387,494
FINDINGS OF FACT: Claimant worked as a specialized records clerk
for a public utility from November 19, 1969 through January 14, 1988, when she
voluntarily resigned her employment in order to relocate with her husband to
Florida. Claimant's husband was a taxi driver in New York. He quit his job
because he felt it was dangerous. Claimant and her husband moved to Florida.
Claimant filed her original claim for benefits in Florida effective February
15, 1988 Claimant's husband did not retire. However, he did not have any
definite job to go to in Florida. About a month after their arrival in Florida,
claimant and her husband opened a window cleaning service.
OPINION: The repeal of Section 593.1(b), imposing a
disqualification for voluntarily leaving employment to follow one's spouse to
another locality, did not mean that all such separations are automatically with
good cause. It is still necessary for claimants to demonstrate that they had
good cause to leave their job to relocate to another locality.
The credible evidence in
this case establishes that the claimant left her employment to relocate to
Florida with her husband. Claimant's husband, a taxi driver in New York, quit
his job because of its problems and chose to move to Florida. There was no compelling
reason for claimant and her husband to relocate to Florida. He had no definite
job to go to in Florida nor did claimant. It was a matter of personal
preference. The judge's reliance on Appeal Board Case No. 35,478-52 is
misplaced. In this cited case, the Board held that it was "a wife's duty
to live with her husband", wherever he chose. Society's conventions have
significantly changed since that opinion was expressed in 1952. It is an
opinion no longer held by the Board.
Absent any good cause
for the relocation to Florida we conclude that claimant voluntarily left her
employment without good cause.
DECISION: The initial determination of the Out-of-State
Resident Office is sustained.
The decision of the
administrative law judge is reversed.
COMMENTS
1. In the 1952 case
discussed by the Appeal Board (AB 35,478), the claimant had quit her job on
September 19, 1952 to move with her husband to a home they had purchased in
upstate New York. This was prior to the passage of the specific
disqualification for voluntary separation to follow spouse. When this specific
disqualification was repealed, the new standards set forth in Field Memorandum
5-87 were developed. In the instant case, the Appeal Board has specifically
stated they will no longer follow the 1952 precedent.
2. A related case (AB
387,484A) involved a claimant who quit a job to move with her husband to
Florida. The Appeal Board held that claimant had quit to relocate to Florida
and, "The fact that claimant was married and that she and her husband together
decided to relocate does not convert what would otherwise be considered a
voluntary leaving of employment without good cause into a leaving of employment
to follow a spouse to another locality and does not turn a leaving of
employment which would otherwise be disqualifying into one which is
non-disqualifying."
INDEX
1722.10
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
TRAVEL TIME, METHOD OR COST
Excessive Travel Time
Where a claimant has
worked for two months under commuting conditions requiring a travel time in
excess of one and one-half hours each way, a leaving for such reason is without
good cause.
A.B. 392,146
FINDINGS OF FACT: The claimant was employed as a data processor
for more than 10 years until December 30, 1988. Prior to July, 1988 the employer
was located in Manhattan. The claimant's commute from her home in Brooklyn was
one hour each way. In mid-July, 1988 the employer moved its offices to Rego Park,
Queens. The claimant's travel time increased to two hours each way, but the
claimant continued in her employment. On or about November 30, 1988, she gave
30 days notice to her employer that because of the increase in her commuting
time she was quitting effective December 30, 1988. The claimant did not quit
when the employer moved because on October 30, 1988 she marked her tenth
anniversary with the employer which was significant in relation to her pension
benefit entitlement.
OPINION: The credible evidence establishes that the
claimant quit her employment because she was dissatisfied with the travel time
caused by the employer's move in July 1988. However, the claimant had worked
for more than five months under such conditions before she quit. Her decision
to quit employment after five months under the same terms and conditions
constitute a voluntary leaving of employment without good cause within the
meaning of the unemployment insurance law. The claimant had accepted the terms
and new conditions of her employment. The Appeal Board has held that where a
claimant has worked for two months under commuting conditions requiring a
travel time in excess of one and one-half hours each way, a leaving for such
reason would not constitute good cause (see A.B. 382,192 and A.B. 385,960).
Accordingly, we find that the claimant's voluntary leaving of employment was
without good cause.
DECISION: The initial determination of the local office
is sustained. The decision of the administrative law judge is reversed.
COMMENTS
1. The above case
replaces A-750-1584, reported in the Interpretation Service Index at 1722-7,
which should be marked obsolete. The shorter period of employment specified in
this case is controlling. This is consistent with A-750-1609, wherein the
Appeal Board held that a period of one and one-half months was insufficient to
establish that claimant had accepted the new conditions of employment, and
therefore a quit due to excess travel time was with good cause.
2. The factual
circumstances in the two cases cited by the Appeal Board are as follows:
a) AB 382,192. A
temporary post office employee, after working a three month cycle, declined a
new cycle because of two hours travel time. The Board held that claimant quit
without good cause.
b) AB 385,960. Claimant
accepted a job two hours from her home. After two months she was warned
regarding excessive latenesses Claimant quit this job. The Board,
reasoning that claimant was not in immediate jeopardy of losing her job because
of tardiness, held the quit to have been without good cause.
Index
No. 765.14
795.15
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
August 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Search for work
NEW YORK STATE BAR EXAMINATION
An individual who takes
the New York State Bar Examination is not ready, willing and able to work on
the days of such examination, nor can such examination be treated as a job
seeking effort.
A.B. 390,924
Findings of Fact: The claimant worked as student legal
specialist for the Law Department of the City of New York for about one year
until June 10, 1988, when his employment was terminated because he graduated
from Law school. He filed an original claim for benefits effective June 13,
1988 and was held eligible to receive benefits without any disqualifying
conditions.
In April 1988, claimant
had been offered a position as an assistant corporation counsel by the
employer, to begin in September 1988. The claimant sat for the New York State
Bar Examination on July 26 and July 27, 1988 which took up the greater part of
both days. In order to qualify for the position offered, claimant had to take
the examination, the successful completion of which is required to work as a
lawyer.
Opinion: The undisputed evidence establishes that the
claimant was taking the New York State Bar Examination on July 26 and July 27,
1988. The Board has repeatedly held that under such circumstances such an
individual is not ready, willing and able to accept work and is therefore not
available for employment (Appeal Board Nos. 358,542; 389,740). We disagree with
the conclusion of the judge that the claimant was available because the taking
of the examination was in the nature of a job-seeking effort. The examination
is a pre-requisite to be admitted to practice and work as a lawyer. This
clearly falls outside of the requirement of Section 591.2 of the Labor Law that
a claimant must be "…ready, willing and able to work in his usual
employment or in any other for which he is reasonably fitted by training and
experience." Accordingly, we conclude that the claimant was unavailable
for employment and ineligible for benefits during the period under review. To
the extent that any prior decisions may be inconsistent with the holding in
this case, such decisions will no longer be followed.
Decision: The initial determination of the local officer
is overruled.
The employer’s objection
is sustained. The claimant is ineligible to receive benefits effective July 26
and July 27, 1988, because he was not available for employment.
The decision of the administrative
law judge is reversed.
COMMENT
The rule of this release
should be limited to the Bar Examinations and not be extended to other type of
examinations such as Civil Service, chauffeur’s license, etc.
INDEX
1205 F-9
1235-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
RELATION TO OTHER DISQUALIFICATIONS
DURATION OF OFFERED EMPLOYMENT
Refusal of a one day
assignment because of a previously scheduled personal engagement marking a
significant event (i.e. claimant's birthday dinner celebration), constitutes a
special circumstance and such refusal is with good cause.
A. B. 392,301
FINDINGS OF FACT: Claimant worked intermittently as a part
time toll collector for the employer. She was laid off December, 1988. She
filed an original claim for benefits effective .January 2, 1989. On January 18,
the employer offered claimant work for one day only on January 20 from 3 P.M.to
11 P.M. Claimant refused the offer because her friends were giving her a
birthday dinner celebration that evening. She requested work for an earlier or
later shift, but none was available. She did not claim benefits for that day
and so indicated in her reporting booklet.
OPINION: The evidence establishes that claimant refused
an offer of one eight hour shift of work for the afternoon and evening of
January 20 because of a birthday dinner celebration to be given in her honor.
It further establishes that claimant did not seek benefits for that date, even
though she would have worked an earlier or later shift. Under these particular
circumstances, we believe that claimant had good cause to refuse the one-day
assignment. We believe that it would be unreasonable to expect claimant to be
available 24 hours a day, seven days a week and not be able to plan an activity
where there is a mere possibility for a single day's work. Accordingly, we
conclude, that claimant refused employment with good cause.
DECISION: The initial determination of the local office
is overruled. The decision of the administrative law judge is reversed.
COMMENTS
1. This rule represents
a limited exception to the principle that unavailability due to a self-imposed
non-compelling reason does not preclude the imposition of a disqualification
for refusal (A-750-1536). It should be carefully applied and limited to situations
where all the circumstances present in this case exist. If the employment were
of longer duration, claimant would be expected to accept the assignment. Also,
it should be noted that the engagement must not only be prescheduled, but also
mark an event of significance to the claimant. Attending a friend's birthday
dinner, for example, would not be sufficient cause. However, the engagement
need not be limited to personal events in claimant's life. Claimant's
participation, as a member of the wedding party, in a marriage ceremony would
also qualify.
2. In all
cases of this nature claimant's availability, on the day in question, should be
carefully explored.
In general, to resolve
this issue it must be determined whether the shift which claimant is unwilling
to work is one that is usual to her occupation. If not unusual, claimant's
unwillingness to work this shift for a personal non-compelling reason, supports
a determination of unavailability.
INDEX
1105A-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
EVIDENCE REQUIRED
ISSUE PRECLUSION
The additional facts
found by either a local office, an administrative law judge or the
Appeal Board to resolve the Unemployment Insurance issue of misconduct may not
contradict those facts previously found by an impartial arbitrator in the
arbitrator's decision resolving the validity of claimant's discharge from
employment
Matter of
Lester AD 2d April 27, 1989
Appeal from a decision
of the Unemployment Insurance Appeal Board, filed March 25, 1988, which ruled
that claimant was entitled to receive unemployment insurance benefits. Claimant
was employed as a water treatment plan trainee by the Ilion Water Commission.
On November 11, 1986, when claimant was assigned the duties of "holiday
duty person", he traveled some 20 miles away from the area of his
employment to play in a hockey game. Charges were brought pursuant to civil
Service Law section 75 and a hearing was conducted. The Hearing Officer
determined that claimant was guilty of "dereliction of duty" and
recommended the penalty of dismissal. The employer adopted the Hearing
Officer's findings and recommendations and dismissed petitioner from his
employment. Upon administrative appeal (see, civil Service Law Section
76), the Herkimer County Civil Service Commission affirmed.* After claimant's
discharge, he made application for unemployment insurance benefits. An initial
determination denying benefits due to loss of employment through misconduct was
ultimately reversed by the Unemployment Insurance Appeal Board which
found, inter alia, that claimant's loss of employment
was not due to misconduct. The self-insured employer appeals, contending that,
under the doctrine of collateral estoppel, the Board was bound by the
administrative determination of the Civil Service Commission that the claimant
was guilty of misconduct in his employment.
* Both parties allege in
their briefs that petitioner appealed his dismissal to the Herkimer County
Civil Service Commission, which affirmed in full the employer's determination.
The Decision of the Herkimer County Civil Service Commission and the papers
upon which it was based have not been part of the record on appeal.
Our analysis presumes, however, that the Civil Service Commission adopted the
findings of the Hearing Officer and made no additional findings of its own.
This court has
previously determined that the Unemployment Insurance Appeal Board must give
collateral estoppel effect to decisions of the Civil Service
Commission when there is an identity of issue (Matter of Barton (New
York City Human Resources Admin. -Ross), 81 AD2d
691, 692). However, even if the requisite identity of issue is found, the
Civil Service Hearing Officer's determination of dereliction of duty will not
compel a finding that claimant is disqualified from receiving unemployment
insurance benefits. Although the Administrative Law Judge and the Board must
give collateral estoppel effect to the Hearing Officer's factual
findings regarding claimant's conduct and his conclusion of dereliction of
duty, they need not give collateral estoppel effect to the
"ultimate" finding of misconduct (Matter of Engel v. Calgon Corp.,
114 AD2d 108, 110-111, affd 69 NY2d 753; see Matter
of Guimarales (New York City Bd. of Educ.-Roberts),
68 NY2d 989, 991; Matter of Ranni {Ross}, 58 NY2d
715, 717-718).
In his detailed
decision, the Civil Service Hearing Officer found the relevant rule of the
employer to be that "employees performing the function of on-call duty
persons are required to be readily available to respond to emergency
calls"; that the rule was reasonably understood by the employees,
including claimant; that the location of the hockey game was a "considerable
distance away from, and in excess of the generally understood geographical
limitations of travel placed on workers who are performing as on-call duty
workers"; that the time expended in playing hockey, changing first into a
uniform and later into street clothes and travel to and from the arena,
resulted in "{claimant} being away from the acceptable 'on-call area' for
a very substantial portion of the time during his 'on-call' duty"; and
that claimant's actions were inexcusable and in dereliction of his duty as the paid
on-call person. The Hearing Officer concluded:
Based upon the evidence
in the record, I find that {claimant's} actions amounted to a callous disregard
of his duty. Regardless of whether or not an emergency occurred during his
hockey playing sojourn***{claimant}, while being paid to "be
available", chose to leave the entire water distribution system at risk.
He had an important responsibility to deal with and, by chancing it, totally
ignored his duty.
The Board, while
conceding that it was bound by the "facts {found by the Hearing Officer}
insofar as they are pertinent to the issues before {it}", made the
following findings:
The credible evidence
thus establishes that claimant knew that he was to remain within beeper
distance of the city. The evidence also establishes that he was not instructed
in unequivocal terms what that distance was. On November 11, 1986, claimant was
approximately twenty miles from his home when attempts to "beep" him
were unsuccessful. The evidence fails to establish that this was an
unreasonable distance and one which claimant should have known was outside
beeper range. He took reasonable steps on November 11 to further ensure that he
would receive emergency messages while at the rink. Under these circumstances,
we conclude that claimant's loss of employment was not due to misconduct.
The issue distills to
whether the Board made "independent additional factual findings" and
formed its own independent conclusion as to whether such conduct constituted
'misconduct' for purposes of unemployment insurance" or, instead,
impermissibly substituted its findings for those of the Hearing Officer (Matter
of Guimarales {New York -Roberts}, supra,
at 991). In our view, the Board's findings of fact impermissibly contradicted
those of the civil Service Hearing Officer. Claimant's contention that the
employer's rule was satisfied by maintaining a means of contact by beeper or
telephone was addressed and specifically rejected by the Hearing Officer.
Whether claimant was within beeper range or in a location where he could be
reached on the telephone was irrelevant if at the time of contact he was too
far away from the Village of Ilion, Herkimer County, to readily respond to an
emergency. To underscore the fallacy of claimant's argument, the Hearing
Officer stated:
If telephone
availability was the only benchmark of the rule, arguably then, an on-call
person who chose to visit Albany or Buffalo could still claim to be available
"by telephone" to answer emergencies and, thereby, remain in
compliance with the rule.
I find such an argument
to lack merit since it confuses the issue of "availability to respond to
emergency calls", i.e., to be able to do something with mere
"availability to answer such calls".
The Board, essentially
adopting claimant's fallacious argument, was similarly confused. The decision
of the Board should, therefore, be reversed and the matter remitted to the
Board for reconsideration upon appropriate findings.
Decision reversed,
without costs, and matter remitted to the Unemployment Insurance Appeal Board
for further proceedings not inconsistent with this court's decision.
COMMENTS
1. Matter
of Guimarales, cited in this decision, is reported at A-750-1981. The
comments in that decision discuss, in detail, the criteria to be applied to
determine if an "arbitration" contains the necessary elements of
due process and impartiality to be deemed binding.
2. Additional fact
finding could be required if the arbitrator's decision is silent as to the
cause of, or motive for, claimant's actions. In any event, the principles used
to resolve other misconduct cases may be applied to the findings and a
determination made.
3. Complex questions
regarding issue preclusion may be referred, through supervisory channels to:
Adjudication Services Office Interpretation Section , telephone:
(212) 352-6850
INDEX
1625-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September, 1989
INTERPRETATION
SEVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
CORPORATE OFFICER OR STOCKHOLDER
CORPORATE OFFICER -DISCONTINUATION OF BUSINESS
A corporate officer, who
discontinues his business because he can no longer run it according to his
personal preferences and does not take adequate steps to continue in business
or adapt to current business realities, quits without good cause.
A.B. 392,727
FINDINGS OF FACT: Claimant was president and 50 percent
stockholder of a corporation that operated a furniture upholstery business for
24 years. The business operated from two separate buildings which the claimant
owned. He was paid a salary of $500 per week and continued to draw this salary
until this business was closed on October 28, 1988. The business was profitable
and was not losing money. Until 1987, the business had four full-time
employees. The claimant managed the business and did the sales work for it. He
was also an upholsterer himself. His wife acted as a bookkeeper and also did
upholstery work. He last obtained an employee through an advertisement in
November 1987. He later discharged this employee as he did not consider his
work up to his standards. At the end of 1987, he decided to close the business,
as he figured that he would have to ask customers to wait too long to have
their work done. He thereafter operated the business with two full-time
employees and one part-time employee. In June or July 1988, he stopped taking
new orders and no longer advertised for any help. Instead, he had the business
simply work on finishing up orders that were in the house.
OPINION: The credible evidence establishes that, the
claimant decided to liquidate his business, not because of any financial
crisis, but rather because he had found it increasingly difficult to obtain new
skilled or new help that was trainable in his craft. The claimant was unwilling
to have another person hired to work as an outside salesmen so that
the claimant himself could work on the inside. Also, the claimant was unwilling
to continue to work in the business at the modest scale on which he was
operating. The record fails to disclose that the claimant took adequate steps
to try to continue in the business or to adapt it to current business
realities. He pursued only his own personal preferences on how he wanted to run
the business. Under the circumstances, we must conclude that the claimant
voluntarily left his 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.
COMMENT
Claimants, who allege
that as employers they were unable to find sufficient qualified employees to
operate their business, should be asked what efforts they made to find workers. They
should always be asked if they utilized the Job Service. All of their efforts
must then be evaluated against the standard of what. a reasonable
person wishing to continue in business would have done, in order to determine
whether the employer had a compelling reason to discontinue the business.
INDEX
1430-8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September, 1989
INTERPRETATION
SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
CORPORATION OFFICERS
CORPORATE OFFICER -SEASONAL CLOSING
A corporate officer is
not totally unemployed when the business of the corporation is seasonally
closed if the corporation has not ceased to exist and the business is expected
to reopen for the upcoming season.
A.B.393,056
FINDINGS OF FACT: The claimant, a maintenance man, salaried at
$7 per hour, worked for the employer corporation of which he was vice president
and one-third shareholder. Claimant invested $50,000 in the corporation and
subsequently made a further $30,000 loan to it. On November 1, 1988, the
employer's business, a golf course and lounge closed for the off-season but
expected to reopen on or about April 1, 1989. Claimant filed his original claim
for benefits on November 7, 1988. After claimant filed for benefits, the
employer continued to make its monthly mortgage payments and payments of $250
interest on the claimant's loan to it, had its premises snow plowed, as
required, in case of fire emergency and continued in effect insurance policies
on its business premises and equipment. All of these matters were handled by
the employer's accountant, who is also secretary treasurer of the corporation
and/or by the corporate president. After filing his original claim for benefits
claimant received $441 in unemployment insurance benefits.
OPINION: The credible evidence establishes that prior
to the period in issue, the claimant performed essential services for the
employer corporation, maintaining its premises. He also had invested $50,000 in
the corporation becoming a one-third shareholder and vice president and off
season received $250 monthly interest for a subsequent loan of $30,000 to the
employer. In Matter of DeVivo (51 AD2d 619, aff'g A.B.
204,662), the Court held that a claimant is not totally unemployed
even if he has no responsibility in the corporation and has disassociated
himself from working while he claimed unemployment insurance benefits because
he stood to gain financially from the corporation's continuing operation in the
future. Accordingly, we conclude that the claimant in the case presently before
the Board was not totally unemployed and that the overpayment in question is
statutorily recoverable pursuant to Section 597.4 of the Law, as amended
September 5, 1983. In reaching our conclusions we also note that, the Courts
have held that the Unemployment Insurance System was set up to protect wage
earners who are unemployed through no fault of their own and was not meant to
include the payment of benefits to self-employed persons and analogous
corporate officials who are idle by seasonal inactivity (Matter
of Wersba, 27 AD2d 890). As a principle and stockholder of the
employer corporation, the claimant received interest of $250 monthly on his
loan of $30,000 during the off season and stood to gain further financially
when the corporation's golf course and lounge reopened for service to the
public on or about April 1, 1989 (Matter of Saltz, 27 AD2d
968). Finally, the fact that the corporate employer herein did not remunerate
claimant and was seasonally closed during the period in issue does not preclude
the Board holding that claimant was not totally unemployed. While claimant's
involvement with the corporate employer was minimal during the period in issue,
the corporation had not ceased to exist and, in fact, claimant looked forward
to its reopening in the spring of 1989, at which time he would again begin
rendering his usual and customary services for it. (Matter of Withim,
134 AD2d 752). Accordingly, claimant was correctly held ineligible to
receive benefits effective October 31, 1988 as he was not totally unemployed
and was overpaid $441 in benefits which are recoverable.
DECISION: The initial determination of the local office
holding the claimant ineligible to receive benefits effective October 31 though December
25, 1988, as modified at the hearing by the Commissioner of Labor's
representative to be October 31, 1988 because he was not totally unemployed is
sustained.
The initial
determination of the local office charging the claimant with a recoverable
overpayment of $441 in benefits is sustained.
The decision of the
administrative law judge is reversed.
COMMENTS
1. The principle cited
above should not lead local office personnel to abandon the search for activity
to establish a continuing employment relationship as outlined in Field
Memorandum 1-78, "Corporate Principles II." Such activity is
important to bolster a determination of lack of total unemployment. It is
important also to establish activity by the corporate entity during the slack
season, even if claimant is not the person performing the activity. This
activity will substantiate the finding that the corporation has not ceased to
exist and is expected to reopen.
2. Matter
of DeVivo (51 AD2d 619) is reported at A-750-1837.
3. Matter
of Wersba (27 AD2d 890) involved a husband and wife who had
previously operated their seasonal business as a partnership and then
incorporated. This case has been cited in many prior Appeal Board decisions. It
is important in this type of case that claimants be asked whether
their corporation had previously existed as a sole proprietorship or a
partnership.
4. Cases where no
activity during the slack period can be shown, either by the claimant or the
corporation, should be referred through supervisory channels to Adjudication
Services Office.
INDEX
1225-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May, 1990
INTERPRETATION
SERVICE-BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
CONSCIENCE
Job Refusal Due To Religious Beliefs
Refusing a job because
of a sincerely held religious belief is with good cause even though the
claimant is not a member of an established religious sect.
Frazee v. Illinois Department of Employment Security et al
Supreme Court of the United States-decided March 29, 1989.
William A. Frazee,
Appellant v. Illinois Department of Employment Security et al.
On Appeal From the
Appellate Court of Illinois, Third District. (March 29, 1989)
Justice White delivered
the opinion of the Court.
The Illinois
Unemployment Insurance Act provides that "An individual shall be
ineligible for benefits if he has failed, without good cause, either to apply
for available, suitable work when so directed… or to accept suitable work when
offered him ..." Ill. Rev. Stat., ch. 48, section 433 (1986). In
April 1984, William Frazee refused a temporary retail position offered him by
Kelly services because the job would have required him to work on Sunday.
Frazee told Kelly that, as a Christian, he could not work on "the Lord's
day." Frazee then applied to the Illinois Department of Employment
Security for unemployment benefits claiming that there was good cause for his
refusal to work on Sunday. His application was denied. Frazee appealed the
denial of benefits to The Department of Employment Security's Board of Review,
which also denied his claim. The Board of Review stated: "When a refusal
of work is based on religious convictions, the refusal must be based upon some
tenets or dogma accepted by the individual of some church, sect, or
denomination, and such a refusal based solely on an individual's personal
belief is personal and non compelling and does not render the work
unsuitable." App. 18-19. The Board of Review concluded that Frazee had
refused an offer of suitable work without good cause. The circuit Court of the
Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the
agency's decision was "not contrary to law nor against the manifest weight
of the evidence," thereby rejecting Frazee's claim based on the Free
Exercise Clause of the First Amendment. Id., at 23.
Frazee's free exercise
claim was again rejected by the Appellate court of Illinois, Third
District. 512 N. E. 2d 789 (1987). The court characterized Frazee's
refusal to work as resting on his "personal professed religious belief,
and made it clear that it did "not question the sincerity of the
plaintiff," id;, at 790, 791. It then engaged in a historical
discussion of religious prohibitions against work on the Sabbath and, in
particular, on Sunday. Nonetheless the court distinguished Sherbert v. Verner,
374 U.S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div. , 450
U.S. 707 (1981) ; and Hobbie v. Unemployment Compensation
Appeals Comm'n of Florida, 480 U.S. 136 (1987), from the facts of
Frazee's case. Unlike the claimants in Sherbert, Thomas, and Hobbie,
Frazee was not a member of an established religious sect or church nor did he
claim that his refusal to work resulted from a "tenet, belief or teaching
of an established religious body." 512 N.E. 2d, at 791. To the
Illinois Court, Frazee's position that he was "a Christian" and as
such felt it wrong to work on Sunday was not enough. For a Free Exercise Clause
claim to succeed, said the Illinois Appellate Court, "(T)he injunction
against Sunday labor must be found in a tenet or dogma of an established
religious sect. (Frazee) does not profess to be a member of any
sect." Id., at 792. The Illinois Supreme Court denied Frazee
leave to appeal. .
The mandatory appellate
jurisdiction of this Court was invoked under 28 U.S.C. Section 1257(2), since
the state court rejected a challenge to the constitutionality of Illinois'
statutory "good cause" requirement as applied in this case. We noted
probable jurisdiction, 488 U.S.______(1988), and now reverse.
We have had more than
one occasion before today to consider denials of unemployment compensation
benefits to those who have refused work on the basis of their religious
beliefs. In Sherbert v. Verner, supra, at 410, the Court held that
a State could not "constitutionally apply the eligibility provisions (of
its unemployment compensation program) so as, to constrain a worker to abandon
his religious convictions respecting the day of rest." Thomas v. Review
Bd. of Indiana Employment Security Div., supra, also held that the State's
refusal to award unemployment compensation benefits to one who terminated his
job because his religious beliefs forbade participation in the production of
armaments violated the First Amendment right to free exercise.
Just two years ago,
in Hobbie v. Unemployment Appeals Comm'n of Florida, supra,
Florida's denial of unemployment compensation benefits to an employee
discharged for her refusal to work on her Sabbath because of religious
convictions adopted subsequent to employment was also declared to be a
violation of the Free Exercise Clause. In each of these cases, the appellant
was "forced to choose between fidelity to religious belief and
...employment," id., at 144, and we found "the forfeiture of
unemployment benefits for choosing the former over the latter brings unlawful
coercion to bear on the employee's choice." Ibid. In each of
these cases, we concluded that the denial of unemployment compensation benefits
violated the Free Exercise Clause of the First Amendment of the Constitution,
as applied to the States through the Fourteenth Amendment.
It is true, as the
Illinois court noted, that each of the claimants in those cases was a
member of a particular religious sect, but none of those decisions turned on
that consideration or on any tenet of the sect involved that forbade the work
the claimant refused to perform. Our judgments in those cases rested on the
fact that each of the claimants had a sincere belief that religion required him
or her to refrain from the work in question. Never did we suggest that unless a
claimant belongs to a sect that forbids what his job requires, his belief,
however sincere, must be deemed a purely personal preference rather than a
religious belief. Indeed, in Thomas, there was a disagreement among sect
members as to whether their religion made it sinful to work in an armaments
factory; but we considered this to be an irrelevant issue and hence rejected
the State's submission that unless the religion involved formally forbade work
on armaments, Thomas' belief did not quality as a religious belief. Because
Thomas unquestionably had a sincere belief that his religion prevented him from
doing such work, he was entitled to invoke the protection of the Free Exercise
Clause.
There is no doubt that
"(o)nly beliefs rooted in religion are protected by the Free Exercise
Clause," Thomas, supra, at 713. Purely secular views do not suffice. United
States v. Seeger, 380 U.S. 163 (1965); Wisconsin v. Yoder, 406 U. S. 205,
215-216 (1972). Nor do we underestimate the difficulty of distinguishing
between religious and secular convictions and in determining whether a
professed belief is sincerely held. States are clearly entitled to assure
themselves that there is an ample predicate for invoking the Free Exercise
Clause. We do not face problems about sincerity or about the religious nature
of Frazee's convictions, however. The courts below did not question his
sincerity, and the State concedes it. Tr. of Oral Arg. 35. Furthermore,
the Board of Review characterized Frazeels views as "religious
convictions," App. 18, and the Illinois Appellate Court referred to his
refusal to work on Sunday as based on a "personal professed religious
belief. 512 N.E. 2d, at 790. 1/
Frazee asserted that he
was a Christian, but did not claim to be a member of a particular Christian
sect. It is also true that there are assorted Christian denominations that do
not profess to be compelled by their religion to refuse Sunday work, but this
does not diminish Frazee's protection flowing from the Free Exercise Clause.
Thomas settled that much. Undoubtedly, membership in an organized religious
denomination, especially one with a specific tenet forbidding members to work
on Sunday, would simplify the problem of identifying sincerely held religious
beliefs, but we reject the notion that to claim the protection of the Free
Exercise Clause, one must be responding to the commands of a particular
religious organization. Here, Frazee's refusal was based on a sincerely held
religious belief. Under our cases, he was entitled to invoke First Amendment
protection. 2/
The State does not
appear to defend this aspect of the decision below. In its brief and at oral
argument, the State conceded that the Free Exercise Clause does not demand
adherence to a tenet or dogma of an established religious sect. Instead, the
State proposes its own test for identifying a "religious" belief,
asserts that Frazee has not met such a test, and asks that we affirm on this
basis. We decline to address this submission; for as the case comes to us,
Frazee's conviction was recognized as religious but found to be inadequate
because it was not claimed to represent a tenet of a religious organization of
which he was a member. That ground for decision was clearly erroneous.
1/ From the very first report of the Illinois
Division of Unemployment Insurance claims adjudicator, Frazee's refusal of Sunday
work has been described as "due to his religious convictions." In his
application for reconsideration of the referee's determination; Frazee stated
"I refused the job which required me to work on Sunday based on biblical
principles, scripture Exodus 20: 8, 9, 10. Remember the Sabbath day by keeping
it holy. Six days you shall labour and do all your, work but the
seventh day is a Sabbath to the Lord your God. On it you shall not do any
work."
2/ We noted in Thomas v. Review board, 450 U.S.
707, 715 (1981), that-an asserted belief might be so bizarre, so clearly non
religious in motivation, as not to be entitled to protection under the Free
Exercise Clause." But that avails the State nothing in this case. As the
discussion of the Illinois Appellate Court itself indicates, claims by
Christians that their religion forbids Sunday work cannot be deemed bizarre or
incredible.
The State offers no
justification for the burden that the denial of benefits places on Frazee's
right to exercise his religion
The Illinois Appellate
Court ascribed great significance to America's weekend way of life. The
Illinois court asked: "What would Sunday be today if professional
football, baseball, basketball and tennis were barred. Today Sunday is not only
a day for religion, but for recreation and labor. Today the supermarkets are
open, service stations dispense fuel, utilities continue to serve the people
and factories continue to belch smoke and tangible products," concluding
that "(i)f all Americans were to abstain from working on Sunday, chaos
would result." 512 N.E. 2d, at 792. We are unpersuaded, however,
that there will be a mass movement away from Sunday employ if William Frazee
succeeds in his claim.
As was the case in
Thomas where there was "no evidence in the record to indicate that the
number of people who find themselves in the predicament of choosing between
benefits and religious beliefs is large enough to create 'widespread
unemployment,' or even to seriously affect unemployment," Thomas, 450
U.S., at 719, there is nothing before us in this case to suggest that Sunday
shopping, or Sunday sporting, for that matter, will grind to a halt as a result
of our decision today. And, as we have said in the past, there may exist state
interests sufficiently compelling to override a legitimate claim to the free
exercise of religion. No such interest has been presented here.
The judgment of the
Appellate Court of Illinois for the Third District is therefore reversed and
the case is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
COMMENTS
1) Although this case
did not originate in New York State, we are bound by the principles stated by
the Supreme Court.
2) The Court's ruling in
this case is based on the First Amendment to the Constitution (as applied to
the states through the Fourteenth Amendment) which provides, "Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof." For this reason, the belief in question must be
rooted in religion. Claims personnel must determine first whether the belief is
religious or secular. If the belief is religious, the second question is
whether it is sincerely held.
3) Determining the
latter is, as the Court observes, a difficult task. In most circumstances it will
be clear whether the belief is religious or secular. Examples of secular
beliefs include political convictions, economic theories, sociological
speculations, etc. (see for example, Matter of Moran 34 AD 2d
694 A-750-1671).
To determine the
sincerity of a religious belief it is reasonable to ask: the source of the
belief; how long the belief has been held; other actions consistent with the
belief, etc. It is also reasonable to ask, in determining sincerity, whether
claimant is a member of an established religious sect. No one of these factors,
taken in isolation, should be considered determinative of a claimant's
sincerity.
Complex questions
regarding whether a belief is religious or sincere may be referred through
supervisory channels to Adjudication Services Office- Interpretation section,
212-352-6850
Index
No. 1110-12
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISCONDUCT
ABSENCE AND LATENESS
MISCONDUCT DUE TO FAILURE TO NOTIFY EMPLOYER OF EXPECTED ABSENCE
Failure to notify an
employer of an extended absence (one week), constitutes misconduct whether
or not claimant knew of the employer’s notification policy.
A.B. 393,737
FINDINGS OF FACT: Claimant worked as a machine operator from
1971 to August 15,1988. The employer’s notification policy required employees
to call in one-half hour before the beginning of the shift on any day of
absence and on each day of absence unless management was advised that the
absence would be for an extended period. Claimant was scheduled to go on
vacation for two weeks from July 25, 1988 through August 5, 1988. He became ill
while on vacation in Barbados. Claimant called his supervisor on August 5,
1988. He said in that telephone call that he would not be able to report to
work on the following Monday because he had a stomach virus and was scheduled
to see a doctor. Claimant called his supervisor again at approximately 6:15
a.m. on August 8, 1988, to say that he was still sick and was scheduled to see
a doctor on that day. Claimant was treated by a doctor for his illness on
August 8, 1988. He was advised to rest for about one week and authorized to
return to work on August 15, 1988. The claimant did not contact the employer
again until his return to work on August 15, 1988.
Claimant was a member of
a union in contractual relationship with his employer. He filed a grievance
concerning his discharge. A hearing was held before an impartial arbitrator at
which both claimant and the employer were represented by counsel. There was a
"full opportunity to adduce evidence, examine and cross-examine witnesses
and to proffer exhibits…". Claimant’s discharge was upheld as a
result of such arbitration hearing. The arbitrator found, inter alia, that
claimant did not advise his supervisor that he was in Barbados when he called
him on August 8, 1988, and, therefore the "Plant Manager understandingly
expected that the grievant would be in for work the following day, or that he
would hear from the grievant that he could not make is then."
OPINION: The credible evidence establishes that a
claimant was discharged as a result of his failure to abide by his employer’s
notification policy. It is noteworthy that the arbitrator specifically found
that the claimant’s supervisor "understandingly expected" that the
claimant would either report for work or that he would call in on August 8,
1988. Claimant should have advised his supervisor of his doctor’s diagnosis and
that he was still in Barbados. Claimant has not offered any credible reason why
he or his agent could not have called his employer from august 9 through August
14, 1988. The employer has a business interest in being informed of an
employee’s whereabouts when he is not able to report to work. Whether or not
claimant knew of his employer’s notification policy, we find that his failure
to contact his employer for one week, subsequent to the visit to the
doctor, rises to the level of misconduct within the meaning of the
law notwithstanding that he was in Barbados. Finally, in view of our finding
that claimant was discharged, the alternative initial determination of the
local office, disqualifying the claimant because of a voluntary leaving of
employment without good cause must be overruled.
DECISION: The initial determination of the local office
disqualifying the claimant from receiving benefits because of a loss of
employment through misconduct in connection therewith, effective August 8,
1988, is sustained.
The alternative initial
determination of the local office disqualifying the claimant from receiving
benefits because of a voluntary leaving of employment without good cause is
overruled.
The decision of the
administrative law judge is reversed.
COMMENTS
- In this case claimant failed to notify his employer
that he would be absent due to illness for approximately one week. An
arbitrator found that the employer "understandingly expected" the
claimant to report to work or be notified that claimant would be absent.
- Significantly, the Appeal Board found that "the
employer has a business interest in being informed of an employee’s
whereabouts when he is not able to report to work."
Index
No. 1110-13
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISCONDUCT
ABSENCE AND LAENESS
MISCONDUCT DUE TO ABSENCE
Despite the lack of a
previous personal individualized warning, an absence of three days for
non-compelling reasons, is misconduct when claimant, who had frequently been
late to and/or absent from work, had been made aware of the employer’s need for
regular attendance, e.g., through a staff meeting.
A.B. 394,807
FINDINGS OF FACT: Claimant worked for employer as a mechanic for
four years. On the last day that claimant actually worked, Monday, February 6,
1989 he advised his supervisor he would not be at work on Tuesday, February 7,
because of a personal matter that he had to attend to in New Jersey. On the way
to New Jersey claimant’s car broke down. Late Tuesday afternoon, claimant
called the employer and told an assistant supervisor that he would not be in to
work on Wednesday due to car trouble and because he still had to take care of
his personal errand in New Jersey. On Thursday, February 9, claimant went to
the employer's premises in a borrowed car to pick up his paycheck and told his
supervisor that he would not be in to work on Friday because his car still had
not been repaired.
Claimant was frequently
late to and/or absent from work. Although claimant may not have received
personal individualized warnings about his attendance, he was present at
several general meetings at which the importance of regular attendance was
stressed.
OPINION: The credible evidence establishes that
claimant was discharged for excessive absenteeism. His final absences were due
to his loss of regular transportation and for other personal reasons. It was
incumbent upon claimant to seek other means of transportation to work. He did
not even make an attempt to use public transportation. Furthermore, although he
may have had compelling personal reasons to be absent one day no such reason
was presented for his four-day absence. We disagree with the administrative law
judge’s opinion that claimant was not warned that his conduct would lead to his
discharge. He was told on several occasions along with his fellow workers of
the employer’s need for their regular attendance. It is not necessary that
there be a written warning. Claimant did not act as a prudent person seeking to
protect his employment. Accordingly, we conclude that claimant 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 reversed.
Index
No. 920 A-7
920 C-15
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
EMPLOYEES OF EDUCATIONAL INSTITUTIONS
REASONABLE ASSURANCE
REASONABLE ASSURANCE – ADDITIONAL CLAIM
To determine if
reasonable assurance exists when claimant files an additional claim during a
period between school terms, it is necessary to compare claimant’s earnings
during the school year or term immediately preceding her filing with her
anticipated earnings for the succeeding school year or term. Having done so, if
it is determined that the provisions of Section 590.10 (or Section 590.11)
should be invoked, all employment with educational institutions in the base
period should be disregarded notwithstanding the fact that the same employer is
involved and the anticipated earnings are substantially less than the base
period earnings.
Matter of Rhoda Abramowitz
(Decided December 21, 1989)
Claimant worked at
Baruch College of the City University of New York as an associate registrar
from September 1980 through August 31, 1984. She was not reappointed for the
1984-1985 academic year. Concurrently, claimant served as an adjunct lecturer
for Baruch’s English Department, a position she continues to hold.
In September 1984,
claimant was awarded partial unemployment insurance benefits as a result of her
termination from the registrar position. The University did not contest her
eligibility to receive these payments. During the period that she received
these benefits, namely, September 6, 1984 through December 23, 1984, which was
the fall 1984 semester, she continued to teach as an adjunct lecturer. In
November 1984, claimant was notified that she would be reappointed as adjunct
lecturer for the spring 1985 semester, which commenced February 4, 1985 and
ended June 6, 1985. On December 27, 1984, after her benefits flowing from her
termination as registrar ceased, claimant filed for additional unemployment
benefits for the winter vacation period between the fall 1984 and spring 1985
semesters. An Administrative Law Judge reversed the local unemployment office
and held that claimant was entitled to benefits.
In February 1985,
claimant was notified that her lecturer’s position would again be assured for
the fall 1985 semester; nevertheless, on May 31,1985, she filed for additional
benefits for the summer vacation period between the spring and fall 1985
semesters. The local office determined that she was eligible to receive
benefits. The University appealed both the local office determination allowing
for these benefits and the earlier determination of the Administrative Law
Judge awarding benefits during claimant’s winter vacation. However, the
University withdrew its request for a hearing on the 1985 summer vacation
period pending the outcome of the Unemployment Insurance Appeal Board’s
decision on claimant’s entitlement to benefits during the 1984 winter vacation
period.
With respect to that
case, the Board ultimately concluded that claimant was entitled to receive
benefits. In doing so, the Board observed that "(c)laimant’s earnings
as an adjunct lecturer were substantially less than her base period earnings as
an associate registrar *** (and that she) was not subject to the provisions of
*** Labor Law [Section 590(10)] during (the 1984 winter intersession)".
Although the University filed a notice of appeal from this decision, that
appeal was not perfected.
Thereafter, the
Administrative Law Judge, believing himself to be bound by the
Board’s decision in the winter vacation case, found that claimant was also
entitled to benefits for the 1985 summer vacation period. The Board affirmed,
prompting this appeal by the University. The University maintains, as it has
throughout, that the Administrative Law Judge incorrectly compared claimant’s
1983 base period earnings with her earnings for the 1984 school year to
determine whether she was eligible for unemployment during the summer of 1985.
We agree.
Generally, an agency’s
interpretation of statutes is afforded great weight, and will be upheld so long
as it is not irrational or unreasonable [Matter of Lintz (Roberts),
89 AD 2d 1038]. Because the issue presented herein involves the interpretation
of a statute, Labor Law Section 590(10), however, it is more appropriately for
judicial resolution (see, id.). Moreover, in this instance
the agency interpretation is unreasonable.
Labor Law Section
590(10) precludes some individuals employed with educational institutions from
receiving unemployment benefits "during the period between two
successive academic years or terms *** provided *** 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). On December 24, 1986, the United States
Department of Labor issued an unemployment insurance program letter to guide
state agencies in applying this statutory exception to unemployment insurance
entitlement. The letter declares, "Reasonable assurance exists only if the
economic terms and conditions of the job offered in the second period are not
substantially less (as determined under State law) than the terms and
conditions for the job in the first period." In a field memorandum dated
March 2, 1987, the State Department of Labor further refined the United States
Department of Labor’s interpretation of "reasonable assurance" to
mean "the same 'ten percent' criterion we use for determining if a job
offer is ‘substantially less’ favorable to the claimant than the prevailing
wage" [see, Labor Law Section 593(2)(d)].
At issue here is what
the terms first and second period mean in the United States Department of
Labor’s letter. Claimant maintains that the board correctly compared her 1983
base period earnings, that is, "the period of fifty-two consecutive weeks
ending on the Sunday immediately preceding (her) filing of (her) valid original
claim" (Labor Law Section 520), on September 3, 1084, an amount
approximately $28,000, with her earnings for 1984, the year she worked only as
an adjunct lecturer. In contrast, the University contends, and rightly we
believe, that claimant’s base period earnings have no relevancy in these
circumstances, that her earnings during successive academic years or terms are
the only periods to be considered, and that the Board should therefore have
compared claimant’s earnings for the 1985 spring term with her earnings for the
1985 fall term.
And whether the statute
directs a year by year or term by term comparison is of no practical moment in
this particular case because of the amount of claimant’s earnings. For the fall
of 1984 and spring of 1985, she earned $1,918.12 and $2,192, respectively, for
a total of $4,110.12 during the 1984 academic year. In addition, she earned
$3,836 for the fall of 1985 and $3,261 for the spring of 1986, for a total of
$7,042 for the 1985 academic year. Consequently, whether the comparison
employed is successive academic years or terms, claimant was reasonably assured
that "the economic terms and conditions of the job offered in the second
period (were) not substantially less *** than the terms and conditions for the
job in the first period", whether the first and second periods be the 1984
and 1985 academic years or the 1985 spring and fall semesters. Under either
comparison, claimant earned substantially more during the second period and,
hence, she was not entitled to benefits under Labor Law Section 590(10).
Inasmuch as the decision
of the Board incorrectly compared claimant’s base period earnings for the 1983
academic year with her earnings for the 1984 academic year to determine whether
she was eligible to receive benefits for the 1985 summer vacation, it is
contrary to the statutory language and must be reversed.
Decision reversed,
without costs, and matter remitted to the Unemployment Insurance Appeal Board
for further proceedings not inconsistent with this court’s decision.
COMMENTS
- In this case, claimant worked for the same educational
institution in the base period ending in September 1984, and during the
subsequent school year ending in June 1985, and was given a reasonable
assurance by that institution for the upcoming school year beginning in
September 1985. The question presented was should the comparison of
earnings made in June 1985 to determine reasonable assurance be between
the base period earnings (up to September 1984) and the anticipated
earnings for the 1985-1986 school year, or between the 1984-1985 school
year earnings (ending in June 1985), and the anticipated earnings for the
1985-1986 school year. The Court clearly chose the latter. As a result,
claimant was ineligible for benefits in June 1985, although her anticipated
earnings were considerably less than her base period earnings for her
still unexpired benefit year. This result would also occur if the school
year or term immediately preceding the filing of the additional claim was
with a different education institution than the base period employer or if
the employer giving the reasonable assurance is a different employer.
- Although the Court stated it was unnecessary for them
to resolve the question of whether the statute directs a year by year or
term by term comparison, it has been our practice to compare school term
to school term when appropriate (cf A-750-1916), so that a claimant
whose earnings are not substantially less in the upcoming school term than
in the prior school term should be held subject to Section 590.10 or
Section 590.11, as appropriate, regardless of her earnings in the entire
prior school year.
For
example: Claimant is employed as a full time regular teacher in the 1987-1988
school year. The claimant is excessed and put on the substitute
list. When claimant files an original claim in June 1988 she would be eligible.
The claimant then worked for the fall 1988 school term as a substitute and
earned $1,000 for twenty days of substitute work. This term ended on January
12, 1989. The claimant is given reasonable assurance of earning at least $1,000
for the new school term to begin on January 29, 1989. When the claimant files
an additional claim on January 15th, she would be subject to Section
590.10 because her earnings in the upcoming school term are not
substantially less than her earnings in the prior school term.
Index
No. 1105-B6
1170-5
1605-A13
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISCONDUCT
RELATION OF OFFENSE TO DISCHARGE
NEGLECT OF DUTY
VOLUNTARY OR INVOLUNTARY
MISCONDUCT AFTER GIVEN NOTICE
Claimant, having given
two weeks notice, is subject to a misconduct determination when
discharged earlier if, by her actions, she demonstrates she does not intend to
perform her job duties.
A.B. 394,334
FINDINGS OF FACT: The claimant, a store manager, worked for a
retail toy store for almost four years until April 5, 1989. On April 4, the
claimant heard that the employer decided to rehire a former employee to work at
a different branch. The claimant thereupon objected to the rehiring and decided
to quit her job. She gave two weeks notice. On April 5, the claimant
decided that she would no longer perform her duties as store manager and turned
in her keys to the employer. Later that day the claimant left the store early
without notifying her employer, and thereby left the store without management.
On April 6, the employer decided to accept claimant’s resignation effective
that day because she refused to perform her job duties. Claimant was not paid
through her two-week notice period.
OPINION: We agree with the conclusion of the judge that
claimant’s separation from employment was not voluntary and that her actions
cannot constitute a voluntary leaving of employment without good cause.
However, we disagree with the judge’s conclusion that claimant’s actions did
not constitute misconduct in connection with her employment. The evidence
establishes that while the claimant intended to remain on payroll for two more
weeks, she did not intend to perform her job duties. In addition, she left her
branch store unattended on April 5, 1989 without notice to the employer. Under
the circumstances, we conclude that her discharge was for reasons amounting to
misconduct in connection with her employment.
DECISION: The initial determination of the local office
disqualifying the claimant from receiving benefits effective April 6, 1989
because she lost her employment through misconduct in connection therewith is
sustained.
The decision of the
administrative law judge is reversed.
COMMENTS
- This case illustrates the exception to Matter of
Senator (76 AD 2d 652) as discussed in Comment 3 of release A-750-1897.
- In cases where claimant’s actions after given notice
constitute misconduct, it is irrelevant that claimant is not paid through
her notice period.
Index
No. 1645A-9
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
QUITTING A JOB TO RELOCATE WITH SPOUSE TO ACCEPT NEW EMPLOYMENT
Quitting a job to move
with a spouse who voluntarily relocates to accept new employment in a different
locality is with good cause.
A.B. 394,536
FINDINGS OF FACT: Claimant worked for the employer bank for ten
years. On January 9, 1989, claimant’s husband was transferred by his company to
South Florida as a branch manager. As a result of her husband’s transfer,
claimant submitted her resignation to the employer on January 11, 1989 because
she and her family were relocating to Florida.
We note that the objecting
employer contends that claimant’s husband was not transferred but obtained new
employment in Florida and therefore neither claimant nor her husband had a
compelling reason to relocate out-of-state. The employer has produced no
evidence to support its contention. Furthermore, we note that the employer’s
conclusion is in error because the Board does not distinguish between a
claimant whose spouse obtains new employment and a claimant who spouse is
transferred in determining if there is good cause for leaving employment under
the Law.
OPINION: The credible evidence establishes that
claimant’s husband was transferred by his employer to South Florida and that
claimant resigned her position with the employer herein to relocate with her
husband to that State. We conclude that claimant’s leaving her employment to
relocate with her husband because of his transfer by his employer was with good
cause.
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.
COMMENT
Although in this case
the Board did not find that the spouse voluntarily relocated, in its opinion,
the Board stated that it makes no distinction between a claimant whose spouse
obtains new employment, and a claimant whose spouse is transferred, in
determining if there is good cause for leaving employment under the Law. This
would seem to eliminate any of the ambiguity in the Board’s position discussed
in A-750-2008 concerning voluntary transfers. It does not matter whether it is
new employment or a voluntary transfer. The Board, consistent with Field
Memorandum 5-87, has concluded that a claimant who quits a job to follow a
spouse who has employment in and relocates to an area beyond normal commuting
patterns does so with good cause.
Index
No. 1645A-10
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
QUITTING A JOB TO RELOCATE WITH A SPOUSE
Quitting a job to
relocate with a spouse is without good cause, if the reason for the relocation
is personal and non-compelling, notwithstanding the fact that claimant’s spouse
quit her job with good cause (to retire and withdraw from the labor market).
A.B. 396,137
FINDINGS OF FACT: Claimant was employed as a truck driver for
about two years until March 2, 1989. He earned $300 per week as a full-time
worker. He resided in New York with his wife who owned the house in which they
lived. Claimant’s wife decided to retire from her employment. She sold the
house because she wanted to retire to North Carolina which she considered her
Home State. Claimant left his employment and relocated with his wife to North
Carolina. He had no prospect of employment in North Carolina when he left.
OPINION: The credible evidence establishes that
claimant voluntarily left his employment to relocated out of state
with his wife. However, the evidence does not establish a compelling reason for
the relocation. Although claimant’s wife had good cause to leave her employment
to retire, her reasons for then relocating to North Carolina were personal and
non-compelling. We reject claimant’s contention that he had to relocate because
he could not afford accommodations in Queens on his salary. Accordingly, absent
any good cause for relocation to North Carolina, we must conclude that the
claimant voluntarily left his employment without good cause.
DECISION: The initial determination of the Out-of-State
Resident Office is sustained.
The decision of the
administrative law judge is reversed.
COMMENT
This rule is consistent
with the discussion in Field Memorandum 5-87 that "It should be noted that
the test of compelling reason must be applied to the reason for the move and
not to the spouse’s reason for leaving employment."
Index
No. 1155-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISCONDUCT
HOURS
MISCONDUCT – REFUSAL OF WEEKEND WORK
Refusal to occasionally
work a shift on a Saturday and/or Sunday solely because it interfered with
claimant’s social life constitutes misconduct.
A.B. 394,349
FINDINGS OF FACT: Claimant was employed as a mechanical
inspector by a manufacturer of aerospace equipment from 1974 through April 8,
1989. The employer changed his shift and working hours, requiring him to work
every fourth Saturday from 8 p.m. to 4 a.m. Claimant had previously worked a 3
p.m. to 11 p.m. shift. The employer also needed the claimant every fourth week
on a Sunday from 8 p.m. to 4 a.m. He would not be required to work the Saturday
which preceded the working Sunday. The change in hours was necessitated by an
additional manufacturing load, whereby claimant’s inspection service was
needed. The claimant refused to work the changed hours. He stated to his
employer that it interfered with his social life. He was given several written
warnings concerning his refusal. He was discharged from his job because of his
insubordination by continuing to refuse to work this assignment.
OPINION: The credible evidence establishes that the
claimant refused a reasonable order of his employer, necessitated by the
increased manufacturing load which required the claimant’s services. We do not
agree with the administrative law judge that the hours the claimant was
required to work on Saturdays and Sundays, once a month, were an adequate
reason for his refusal of the employer’s order. The lack of time to socialize
over a weekend, given by the claimant as the sole reason for his refusal to
work the changed shift, is inadequate and non-compelling. Accordingly, we
conclude that claimant’s refusal rose to the level of misconduct under the law.
DECISION: The initial determination of the local office
is sustained.
The decision of the
administrative law judge is reversed.
COMMENT
While generally a
substantial change in claimant’s conditions of employment may give him good
cause to quit a job, such change was not involved in this case. Claimant was
already working one weekend day per month. Claimant’s days and hours of work
were not changed. Instead, because of an additional manufacturing load,
claimant was requested to work one more day per month overtime. Refusal to do
so is misconduct. (c.f. A-750-1788)
Index
No. 1605 A-14
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
VOLUNTARY OR INVOLUNTARY
ELECTED OFFICER
An elected official
becomes involuntarily unemployed upon expiration of his term of office; despite
the fact that he chose not to seek re-election.
A.B. 398,861
FINDINGS OF FACT: Claimant was employed as the president of a
local of a national union. His elected term of office ended on August 22, 1989.
Claimant chose not to seek re-election and his employment ended on such date.
OPINION: The credible evidence establishes that
claimant’s employment came to an end upon the expiration of his term of office
as president of a local union. He did not voluntarily leave his employment. We
do not agree with the conclusion of the administrative law judge that claimant’s
decision not to run for re-election constituted a voluntary leaving of his
employment. We conclude that claimant was under no obligation to seek
re-election even if he had no offer of other employment. Continuing work was
not available to claimant upon the expiration of his term. Accordingly, we
conclude that claimant’s employment ended 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.
COMMENT
In some cases a claimant
serving as a union officer may be on a leave of absence from his employment. In
the event his term of office expires, he may have the right to return to work
for a former employer. A failure to exercise this right may be a voluntary
leaving of employment (see A-750-1978)
Index
No. 865 B-5
870-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REGISTRATION, REPORTING & CERTIFICATION
MISINFORMATION
MISUNDERSTANDING
RETROACTIVE REDUCTION IN WORKER’S COMPENSATION
A claimant’s belief that
he was not entitled to unemployment insurance benefits while receiving full worker’s
compensation cannot serve to excuse his failure to comply with registration
requirements even though the worker’s compensation benefits are retroactively
reduced.
A.B. 397,309
FINDINGS OF FACT: The claimant worked as a driver for a bakery
for about four years until July 24, 1989, when he sustained an on-the-job
injury. He applied for and was held eligible to receive worker’s compensation
benefits at the full rate through August 28, 1989. Claimant was examined by his
physician on or about August 31. Based on the physician’s report following this
examination, the claimant’s weekly disability benefits were reduced from $300
to $150, effective August 28. Claimant was not aware of this reduction until he
received written notice thereof from the insurance carrier on September 16. He
filed an original claim for benefits effective September 18. Claimant did not
contact the local office prior to that date. Claimant believed he would not be
eligible for unemployment insurance benefits while he was receiving full
worker’s compensation benefits.
OPINION: The credible evidence establishes that
claimant did not register his claim for unemployment insurance benefits during
the period under review because he believed he would be receiving full worker’s
compensation benefits and that he would therefore not be entitled to
unemployment insurance. Although the claimant’s assumption was not
unreasonable, it cannot serve to excuse his failure to comply with registration
requirements. It is implicit in claimant’s request to have his claim predated
that he was ready, willing and able to perform some sort of work during the
period under review. It was therefore incumbent upon the claimant to inquire at
the local office concerning his entitlement to benefits. The Board has
previously held in a similar case that claimant "knew or should have known
that the result of the doctor’s examination may result in a change of his
disability status and could have contacted the local office for proper
instructions." (AB 379,477; see also AB 380,938 and AB 384,021). Under
these circumstances, we conclude that the claimant’s failure to comply with
registration requirements cannot be excused and he is therefore ineligible to
receive benefits during the period under review.
DECISION: The initial determination of the local office
is sustained.
The decision of the
administrative law judge is reversed.
COMMENTS
- The Appeal Board found that implicit in a request for
such predated claim is the presumption that claimant was ready, willing
and able to work for that period, and if that were true, claimant should
have inquired at the local office.
- The receipt of full worker’s compensation usually, but
not always, precludes unemployment insurance eligibility. It is based on
claimant’s total inability to work in his/her occupation (see
Interpretation Service Index 750 A1 and 2; A-750-306 and A-750-326).
Whether claimants receiving total or partial disability are eligible for
benefits is dependent on his/her capability of any work that exists in the
labor market and his/her efforts to find such work
Index
No. 1645A-11
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
1990
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
FOLLOW SPOUSE – REASONABLE COMMUTE
Quitting a job because
of the increased travel time and distance involved is without good cause when
claimant and a spouse had moved to be closer to the location of the spouse’s
newly obtained employment, and the total travel time and distance is not
unreasonable.
A.B. 398,342
FINDINGS OF FACT: Claimant worked as a legal secretary for the
employer in Poughkeepsie, New York, for approximately five months. When
claimant’s husband found work in Danbury, Connecticut, they purchased a home
and moved to New Milford from Poughkeepsie. New Milford, Connecticut is
approximately forty miles, and a one-hour drive from the employer’s New York
Location. Claimant left her job in New York because she felt she would receive
a higher rate of pay working in Connecticut, and also avoid New York State
income tax, and because she did not want to drive forty miles to and from work
each day.
OPINION: The credible evidence establishes that
claimant had no compelling reason to leave her job. Her relocation to
Connecticut with her husband was for convenience and other personal reasons.
There is no evidence that her husband’s new job in Connecticut necessitated
their relocation there. Furthermore, even if the job had required their
relocation, such relocation was not a sufficient reason for claimant to have
quit her employment in New York. Claimant readily admits that her new home is
within a one-hour drive from the employer’s location in Poughkeepsie, New York.
Such a commute did not place an undue burden on her and therefore, did not
provide her with a compelling reason to leave her job. Claimant’s reasons for
leaving her employment were personal and non-compelling. Accordingly, we
conclude that claimant voluntarily left her job without good cause.
DECISION: The initial determination of the Out-of-State
Resident Office is overruled.
The decision of the
administrative law judge is reversed.
The claimant is
disqualified from receiving benefits effective August 7, 1989 because she
voluntarily left her employment without good cause, until she has subsequently
worked for an employer on not less than three days in each of five weeks and
earned at least five times her weekly rate. Self-employment and earnings from
self-employment will not count.
COMMENTS
- This case clarifies the principle set forth in Field
Memorandum 5-87 Item II B that, "Quitting because a move extends
claimant’s travel time is with good cause only if the resultant travel
time is unreasonable for claimant’s locality." It is important to
realize in these cases that the party that is moving is the claimant and
not the employer. The administrative law judge, in holding claimant
eligible for benefits, had determined that her move was a circumstance
that occurred in the course of her employment that permitted an
examination of whether claimant would have had good cause to refuse the
job in the first instance (Section 593.1). He then considered Section
593.2(c) which holds a refusal is with good cause if:
"The
employment is at an unreasonable distance from his resident, or travel to and
from the place of employment involves expense substantially greater than that
required in his former employment unless the expense be provided
for."
The
ALJ, in order to find good cause for the quit, relied on the fact that the
employer did not offer to offset claimant’s increased travel cost. The portion
of the statute, involving the expense of commuting, should generally not be
invoked unless it involves a new offer of employment or the employer moves its
location (See A-750-1016). Of course, claimants are only expected to use the
usual ways of getting to work for employers in their labor market.
- To determine what is reasonable travel time, Index
1280 and 1722 should be consulted. The time of 90 minutes has not been
considered unreasonable in most instances.
- The Appeal Board also took note of the fact that the
move closer to the location of the spouse’s job was not a compelling
necessity. The couple could have continued to reside in their prior
resident with the spouse undertaking a commute similar to that of the
claimant. Another consideration is whether claimant took reasonable
"measures to find alternate affordable living accommodations that
would be within the required proximity to her husband’s new work place, as
well as within a reasonable commute to her employment" (AB 390,126).
A location halfway between the two jobs could have been considered.
INDEX
1152-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January , 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
ALCOHOL AND DRUGS
MISCONDUCT -CONTROLLED SUBSTANCE
Claimant's misconduct in
connection with his employment may not be excused by dependence on a controlled
substance because, unlike alcoholism, the use of such substance is subject to
strict legal prohibitions against possession and sale, and the negative consequences
of its use can or should be reasonably foreseen.
AB 398,533A
FINDINGS OF FACT: The claimant, an advertising account executive
worked for a cable television company from March 2, 1987 until October 31,
1988. For the first 15 months of claimant's employment, the cable company found
his job performance satisfactory. In May, 1988, claimant began using cocaine
during his weekends off from work. Initially claimant used between one
half gram to a gram each weekend. However, by June or July, 1988, claimant had
graduated to daily use, and was taking from three to seven grams a day.
Claimant subsequently started "free-basing" the drug for a more
intense high. As a result of his cocaine use, claimant experienced long periods
of sleeplessness, high blood pressure, extreme nervousness, sweating, and
hallucination.
Claimant's job
performance began to decline dramatically due to the effects of the drug.
Claimant missed appointments with clients, failed to show at staff meetings,
was frequently absent without notice, handled his business records carelessly,
and failed to meet sales quotas.
On several occasions,
the employer spoke to the claimant regarding his failure to perform his job
satisfactorily and about his poor attendance. During these discussions, claimant
blamed his difficulties on family problems, never mentioning his cocaine usage.
By October 28, 1988, the employer was prepared to give the claimant a final
warning because of poor work performance and attendance. Claimant was notified
that a meeting was set for that day to discuss these topics. However, because
he had been using cocaine heavily, and was suffering from its effects, claimant
did not go to work on October 28 and did not call the employer to explain his
absence. The employer thereafter discharged the claimant for his failure to
attend the meeting and his overall work record.
OPINION: It is the public policy of New York State, as
set forth in Title 18 of the Labor Law, that unemployment benefits be paid only
to those persons "who are unemployed through no fault of their own."
Labor Law, Section 501. Pursuant to this policy, Section 593 of the Law
provides that a claimant will be disqualified from receiving benefits due to a
loss of employment through misconduct in connection, therewith. In construing
the statute, it is the task of the Appeal Board to determine whether a claimants loss
of employment can be ascribed to his own acts of commission or omission in
connection with his employment, which acts constitute misconduct, or should be
attributed to reasons beyond the claimant's control and therefore excused.
The Appeal Board has
long held that loss of employment due to failure to report to work as scheduled
or failure to perform one's job duties, without compelling reason in either
instance, is misconduct under the Law and will result in a claimant's
disqualification from receiving unemployment insurance benefits (Matter
of Goldfarb, 52 AD 2d 965, aff'g Appeal Board 212,765; Matter
of Bossert, 53 AD 2d 742, aff'g Appeal Board 205,651). The
Board has also held hat such misconduct can be excused where the claimant was
absent due to illness which prevented his appearance at work or where a
claimant was too sick to ,carry out his work assignment (Matter of Overt,
50 AD 2d 659, aff'g, Appeal Board 202,343; Matter of Sunderland,
121 AD 2d 779, aff'g Appeal Board 361,649)
In view of expert
medical opinion which considers alcoholism a disease, the Board expanded this
concept to include alcohol addiction as an illness which would excuse some,
otherwise disqualifying acts, (Matter of Francis, 56 NY 2d 600, aff'g Appeal
Board 293,620). However, while the Court has approved this approach, certain
limitations have been placed upon its application. It has been expressly held
by the Court that a claimant suffering from alcoholism is not incapable of
committing misconduct in connection with employment (Matter of Gaiser,
82 AD 2d 629, rev'g Appeal Board 317,468). Therefore, not-all
disqualifying acts would be excused as a result of the condition (e.g. illegal
acts in connection with a job or other acts which, concededly legal,
might foreseeably have serious negative consequences for the
employer). Furthermore, a claimant alleging that he suffers from this condition
must produce competent medical evidence to support his contention as well as
evidence that the condition directly resulted in the act of misconduct (Matter
of Moore, 144 AD2 123, aff'g Appeal Board 376,380; Matter
of Allen, 162 AD 2d 753, June 14, 1990, aff'g Appeal Board
370,379.) The Courts have also mandated that any eligibility should be subject
to a continuing review of claimant's capability for work (see Gaiser at
630).
Although the net result
of these limitations is to more clearly define the reach of the Board's
original concept, we believe our approach was and is a rational one. Although
the effects of the misuse of alcohol are well documented and tragic, the mere
use of this substance is not subject to widespread condemnation and, in
moderation, is generally approved. The government, both state and federal,
imposes few sanctions against the use, sale, and possession of alcoholic
beverages; such restrictions that exist usually involve age limitations on
consumption and driving while under the influence of alcohol.
In the case before us we
are faced with the question of whether the Board's previously discussed rulings
on alcoholism should be expanded to include drug addiction. The evidence
establishes that claimant was discharged from his employment as a result of his
failure to perform his job duties and, specifically, for his last absence from
work on October 28, 1988. The claimant was absent that final day and had been
unable to do his work consistently due to the detrimental effects of cocaine
usage. The claimant contends that his omissions should be excused because they
were the result of drug dependency which is an addictive illness, like
alcoholism, and therefore beyond his control.
While we do not question
that claimant suffers from drug addiction and that the acts which caused him to
be discharged were themselves caused by the addiction, we do not agree with
claimant's contention. Although we recognize some similarity between the
conditions of alcoholism and drug dependency, we find significant differences
in the way each condition is judged by society, and consequently, how each is,
and should be viewed under New York State law. These differences affect the
Board's consideration of the claimant's contention and mandate a different
outcome in a case involving drug addiction than that found in our previous
decisions involving alcoholism.
With respect to
claimant's argument that drug dependency and alcohol addiction are essentially
the same, we have already noted that the use of alcohol is largely approved,
while the use, sale, and possession of non-prescription controlled substances
are almost universally condemned. Vast amounts of money are appropriated on
federal, state, and local governmental levels in an effort to prevent the sale
and distribution of these substances because of the recognized deleterious
effects across all socioeconomic levels of the country. Among the more dramatic
consequences of the abuse of controlled substances are drug related deaths,
crime among youth, decline in economic productivity, and dissolution of the
family. While some of these effects may also be associated with alcoholism, the
improper use of controlled substances is considered to pose a far more serious
health hazard due to the greater likelihood of addiction and the resultant more
destructive impact on society ("use in moderation" is not likely). As
a result, the use of these substances is subject to stringent legal
prohibitions against possession and sale. It is clear that the two conditions
under review are not identical in nature or consequences. We cannot, in view of
clear governmental policy deploring the abuse of controlled substances, accord
the same legal consideration under the Labor Law to drug dependency as that
given to alcohol addiction.
As we have determined
not to extend our rulings to cases involving the improper use of controlled
substances, we must determine whether claimant's acts which resulted in his
discharge constituted misconduct in connection with his employment.
We consider it axiomatic
that an employer has a legitimate expectation that its employees will be
present during their scheduled hours of work and be capable of performing their
duties as effectively as possible. In this case, the record establishes that
claimant was unable to meet this expectation for reasons he contended were
beyond his control. We believe that given the extensive education on the problem
of drug addiction, and the many public and private sector efforts to prevent
the spread of drug abuse, few people can be unaware of the perils of using a
controlled substance. We believe it is reasonably foreseeable that even an
occasional use of drugs such as cocaine could result in addiction and a
resulting detrimental effect on every aspect of a person's life, including
employment. A person who voluntarily engages in such activity, which might
eventually cause a decline in attendance and work performance, must bear some
responsibility for his decision. As a loss of employment under these
circumstances would be due to the claimant's own act, and was a reasonably
foreseeable consequence of that act, such loss of employment is considered to
be for misconduct.
Accordingly, with
respect to the claimant in this case, we set forth the following conclusions:
- Claimant is, by his own admission, suffering from a
drug addiction.
- In order to become addicted, claimant had to have
engaged by his own choice in the use of a controlled substance.
Claimant
makes no contention that such use was in any way approved.
- Claimant's acts, which caused his discharge, namely,
his absence and poor job performance, were a consequence of his decision
to use a controlled substance.
- The personal consequences of the act of using a
controlled substance were reasonably foreseeable. Claimant knew or should
have known that such an act could. lead to the deterioration of
his employment relationship and possible loss of job. Thus, claimant's subsequent
acts or omissions with respect to his job cannot be excused by his
addiction.
Under
these circumstances, we conclude that claimant's course of conduct, which began
with his voluntary use of cocaine and culminated in an overall decline in job
performance and failure to appear for work, was not that of a reasonable and
prudent person who desired to protect his employment. We find that, in view of
public policy which strongly deplores this activity, claimant's conduct cannot
be excused by his addiction and constituted misconduct in connection with his
employment. To the extent that this decision is inconsistent with any of the
Board's prior rulings, they will no longer be followed.
DECISION: The decisions of the Board filed May 24, 1989
(Appeal Board 392,989) and filed August 18, 1989 (Appeal Board 393,976A), are
hereby rescinded.
The initial
determination of the local office is overruled.
The employer's objection
is sustained. The claimant is disqualified, from receiving benefits effective
October 31, 1988 because he lost his employment through misconduct in
connection therewith. Claimant is disqualified until he has worked three days
in each of five weeks and earned five times his weekly benefit
rate. Self-employment and earnings therefrom will not count.
The decision of the
administrative law judge is affirmed
COMMENT
An exception to this
rule may arise if a claimant alleges that his/her substance dependence resulted
from "involuntary" use of drugs (i.e., treatment in a hospital). In
such case, evidence to support this contention should be required. In addition,
evidence of claimant's efforts to cure the dependence would be necessary in
light of the Appeal Board's findings regarding the consequences of drug use.
INDEX
1110-14
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
ABSENTEEISM & LATENESS
ABSENTEEISM - APPEARANCES IN COURT
Discharge because of
absenteeism caused by court appearances resulting from claimant's arrest for an
offense committed outside the course of employment, is misconduct, if claimant
ultimate]y is convicted of the offense, since the absence is the result of the
claimant's own act and from circumstances beyond his control.
AB 400,973
FINDINGS OF FACT: The claimant was last employed as an
electrician's helper for an electrical contracting company for four years until
March 9, 1990. In January 1990, the claimant was placed on probation because of
tardiness. In November 1989, he had been arrested for driving while intoxicated
and for possession of stolen property. As a result, claimant had to appear in
Court all day on three days while employed, the last day being March 8, 1990.
His attendance in Court caused him to miss work and an apprentice training
course that was held after work. Claimant was discharged on March 9, 1990,
because of his absences. On April 26, 1990, the claimant pleaded guilty to the
charges.
OPINION: The credible evidence establishes that the
precipitating cause for the claimant's discharge was his failure to report to
work and training on March 8, 1990, when he was in Court to answer Criminal
charges. On April 26, 1990, the claimant pleaded guilty to the charges. Under
these circumstances, claimant's absence! on his last day of work is
considered to be the result of claimant's own act land not from circumstances
beyond his control. Accordingly, we conclude that claimant's absence from work
constituted misconduct in connection with his employment. See Appeal Board
#346, 787-A.
DECISION: The initial determination of the local office
is sustained.
The decision of the
Administrative Law Judge is reversed.
COMMENTS
1) This case is the
logical extension of the rule set forth in A-750-1971, that a discharge for
absenteeism resulting from incarceration is misconduct.
2) It must be noted that
until and unless the claimant is convicted of the offense, absenteeism caused
by court appearances cannot be the basis for a misconduct determination. Cases
of this nature where a claimant is initially found eligible because there is no
evidence of claimant's guilt, should be processed to A.S.O. consistent with C.S.
Manual III -6226 (Field Memorandum 5-89).
3) Although the Appeal
Board found that claimant was on probation for tardiness, they do not rely on
prior warnings to reach their opinion that claimant's absence and consequent
discharge were the result of his own act. In AB 346,787A, claimant was absent
on his last day of work because he was arrested for a crime to which he
subsequently pleaded guilty. In that case, they opined: "Under these
circumstances, claimant's absence on his last day of work is considered to be
the result of claimant's own act and not from circumstances beyond his
control." Based on these two holdings, the implication in Comment 1 of
A-750-1971 that a prior warning regarding attendance is required for absences
of less than one week is obsolete, and should be so marked.
4) Of course, this rule
should not be extended to appearances in court as a witness in a case where
claimant is not the defendant.
INDEX
1670-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 1991
INTERPRETATION
SERICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
MARRIAGE (Section 593.1(b})
VOLUNTARY QUIT -MARRIAGE
A claimant who quits a
job intending to get married is subject to disqualification for voluntary quit
due to marriage, even though the claimant shortly thereafter relocates to
follow that spouse.
Matter of Gaus, 167 Ad 2d 736, decided November 21, 1990
Appeal from a decision
of the Unemployment Insurance Appeal Board, filed June 30, 1989, which ruled
that claimant was disqualified from receiving unemployment insurance benefits
because she voluntarily left her employment without good cause.
Claimant voluntarily
left her employment on December 31, 1988 and was married on January 7, 1989.
Shortly thereafter, she relocated to Florida with her husband, who was starting
a new job which he had accepted in November 1988. Claimant then applied for
unemployment insurance benefits with the local unemployment office, which ruled
that, pursuant to Labor Law Section 593(1)(b), claimant was disqualified from
receiving any benefits because she left her employment due to marriage.
Claimant objected to this determination, contending that she left her job to
accompany her husband to Florida. Following a hearing, an Administrative Law
Judge overruled the initial determination, concluding that the evidence failed
to establish that claimant actually left her employment due to marriage. The
commissioner of Labor appealed and the Unemployment Insurance Appeal Board
reversed and reinstated the initial determination. This appeal by claimant
followed.
We affirm. Labor Law
Section 593(1)(b) provides that a claimant shall be disqualified from receiving
benefits after a voluntary separation from his/her last employment if
"such voluntary separation was due to claimant's marriage". In this
case, it is undisputed that, at the time claimant left her employment, she was
unmarried and contemplated being married one week later. Based upon this
evidence, the Board concluded that claimant's voluntary separation from
employment was "due to {her} marriage", within the meaning of Labor
Law section 593(1)(b). This determination is consistent with that in Matter
of Essapour (Levine) (50 AD 2d 657), wherein we affirmed
the Board's disqualification of a claimant who voluntarily left his employment
in order to marry in Persia. In our view, the validity of the Board's
application of the statute in Matter of Essapour remains
unaffected by subsequent legislation which amended Labor Law Section 593(1)(b)
to remove the disqualification of a married claimant who voluntarily terminates
his/her employment in order to follow a spouse to another locality (see, Labor
Law section 593{l}{b} {former (2)}; L 1987, ch 418, section 1). Thus,
the Board's application of the statute in this case should be upheld. Further,
although claimant testified that she did not leave her employment due to
marriage and that she would still be working for her former employer had she
not moved to Florida with her husband, we conclude that her testimony regarding
the sequence of events after she left her employment on December 31, 1989
constitutes substantial evidence supporting the Board's decision.
Decision affirmed,
without costs.
INDEX
1655-9
1110-15
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
HEALTH
MISCONDUCT
ABSENCE & LATENESS
MEDICAL EVIDENCE
Discharge for failure to
report for work on a date set by her employer, based on a single examination by
its doctor, is a loss of employment under non-disqualifying conditions if
claimant's own physician has determined, based on a continuing course of
treatment, that she was unable to work at that time.
A.B. 401,183
FINDINGS OF FACT: The claimant worked as a key entry operator
from May 4, 1987 until January 4, 1990. On January 5, 1990, claimant had
visited her doctor who had examined her and diagnosed that she had
lymphadenitis and recommended that she not work from January 5, 1990 until an
undetermined time in the future. Claimant's doctor had prepared a statement
reflecting his diagnosis and recommendation which claimant delivered to her
supervisor on January 5, 1990. On January 11, claimant was examined by the
employer's doctor at their request. The examination consisted of listening to
claimant's heart beat and reading her blood pressure with no further tests or
examination. The employer's doctor certified claimant for disability leave for
the next two weeks. In the interim, claimant's personal physician referred her
to another doctor on January 24, who examined the claimant and ran a series of
tests, and advised claimant not to return to work for at least another three or
four weeks. He advised that she needed time to rest and recuperate. Claimant's
doctor also recommended that claimant seek physical therapy. By letter dated
January 30, 1990, the claimant was directed by her employer to "please
report to work within five days at your regular starting time, or your name
will be dropped from the payroll." Upon receiving this letter on February
2, claimant contacted her doctor to see whether it was advisable to return to
work at that time. Again her doctor advised against it. Claimant called her
supervisor on February 5, the next business day, to advise him that she was
unable to return to work that day, but in order to protect her job, requested
that she take her two week vacation time to recuperate until she was able to
return to work. Claimant's supervisor told the claimant that either she report
that particular day or else she would be discharged. Not returning to work,
claimant was discharged. Claimant filed an original claim for benefits on
February 14, when she was again ready and able to work.
OPINION: The credible evidence establishes that the
claimant was discharged because she was unable to return to work as a directed
by her employer because of medical circumstances which were beyond her control.
The employer's directive to return to work was obviously based on their own
doctor's report that claimant, was able to return to work by February 5,
1990. The Appeal Board has previously ruled that when a claimant's medical
condition is documented so as to render claimant unable to work, she is not
required to accept the opinion of the company doctor based on one examination
over the considered opinion of her personal physician (Appeal Board 372,444).
Substantial evidence in the record establishes that claimant was given an
ultimatum by her employer to either return to work on February 5, or be
terminated. However, claimant's testimony and documentary evidence establishes
that as of February 5, 1990, the claimant was not able to return to work
because she was recuperating from a disability and was advised by her doctor
not to return to work at that time. Because the claimant did not return to work
on that particular day, she was discharged. Under these circumstances, claimant
lost her employment under non-disqualifying conditions.
DECISION: The initial determination of the local office
is sustained.
The decision of the
Administrative Law Judge is reversed.
COMMENTS
1. Although the
Administrative Law Judge had sustained the employer's objection that claimant
quit without good cause, the Appeal Board found instead that claimant was
discharged.
2. When claimant's
medical condition is documented so as to render claimant unable to work, the
claimant is not required to accept the opinion of the company doctor, based on
one examination, over the considered opinion of her personal physician, based on
a more extended period of treatment.
3. This principle should
be carefully applied. Other evidence of claimant's efforts to protect her job
should be considered. Significantly, in the above case, claimant offered to use
two weeks of vacation time to continue her recovery period.
4. In evaluating similar
cases, another element that should be considered is any evidence submitted by
the employer that would indicate a reason other than health for taking off the
period of time in issue (e.g., a request for vacation time made prior to this
period which was denied by the employer).
INDEX
1685 B-4
1710-10
NEW YORK
STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
MOVE FROM LOCALITY
OTHER REASONS FOR MOVING
SAFETY
RELOCATION - FEAR OF SAFETY
Quitting employment to
move out of the area, because of a bona fide fear for safety, is without good
cause if the claimant's fear results from incidents in the neighborhood of her
residence and she failed to make reasonable efforts to find living
accommodations elsewhere within commuting distance that would have allowed her
to continue working for the employer.
A.B. 401,401
FINDINGS OF FACTS: Claimant worked for the employer herein
for approximately 12 years, until February 29, 1990. Between October, 1989 and
January 3 , 1990, claimant personally experienced two incidents in
and around the apartment building where she lived, where her personal safety
was threatened. As a result of these incidents, she became extremely frightened
and was hesitant to venture in the vicinity of her building, unescorted.
Claimant submitted her letter of resignation immediately after the second
incident in January, 1989 but did not leave her employment until February 20th
for her employer's convenience. Claimant was afraid to continue living in New
York and made no attempt to find another apartment within commuting distance of
her employment. After the claimant resigned, she relocated to Florida where she
owned a condominium.
OPINION: The credible evidence establishes that
claimant left her employment to relocate to Florida because she was afraid to
continue living in New York. The incidents which frightened claimant all
occurred in the area in which she lived, not where she worked. While claimant
may have had reason to be fearful for her safety within the neighborhood in
which she lived, she had no such reasonable fears regarding the area where she
worked. We therefore, find that claimant's experiences and resulting fears,
while establishing a good reason to move from her particular apartment or
neighborhood where she lived, fail to establish compelling reasons to warrant
her leaving her employment. Claimant admittedly made no attempt to look for
housing in the New York city area within commuting distance of her
employment choosing to move to a condominium she owned in Florida. We,
therefore, conclude that claimant's reasons for leaving her employment were
personal and non-compelling and do not constitute good cause under the
Unemployment Insurance Law.
DESISION: The initial determination of the local office is
sustained.
The decision of the
administrative law judge is reversed.
COMMENTS
1. In all cases
involving fear for safety, the alleged incidents which caused this fear should
be confirmed with the appropriate authorities (i.e. police, hospital, doctor,
psychiatrist, social worker, clergyman, etc.)
2. What constitutes
reasonable efforts to find other living accommodations is dependent on a number
of factors. In general, if claimant made no effort to protect her job by
seeking housing elsewhere, a quit without good cause would apply. If claimant
alleges seeking housing elsewhere, then the adequacy of her search must be evaluated.
To do so, we must determine in what areas claimant was willing to live, the
monthly payment (rent or mortgage) she was willing to make and what efforts she
actually made to find living quarters, This information must then be evaluated
against what is usual in that locality and what the claimant can afford to pay
based on her (and her spouse's) income. Examples of diligent efforts to find
housing include consulting real estate or rental agents and following up
advertisements in the newspapers.
INDEX
1460 A-16
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
PAYMENTS WITHOUT WORK
VACATION PAY
VACATION PAY - TERMINATION AGREEMENT
When an agreement
negotiated between the employer and claimant's union assigns the payment of
vacation pay to a specific period following the last day of work, that time is
a designated vacation period within the meaning of Section 591.3(b) of the
Labor Law. It is not significant that the agreement was made in settlement of
disciplinary proceedings seeking claimant's discharge. This is distinguished
from situations where the employer unilaterally seeks to
allocate the accrued vacation credits to the period following the claimant's
last day of work.
AB. 402,926
FINDINGS OF FACT: The claimant worked as waste treatment plant
operator for about 38 years until May 3, 1990, when he was discharged. A few
weeks thereafter, a settlement agreement was entered into after claimant's
union intervened on his behalf. Pursuant to terms of this agreement, the
discharge was converted to a suspension without pay for the period from May 3
until June 3, 1990; the claimant was placed on paid vacation and holiday leave
for the period from June 4, through July 29, 1990; and the claimant resigned
effective August 1, 1990.
OPINION: The credible evidence establishes that the
period of June 4 through July 29, 1990, was a properly designated vacation for
which benefits are not payable, pursuant to the section 591.3(b) of the Labor
Law. It is significant that the designation of this time as vacation and
holiday leave was agreed to between the claimant and the employer prior to the
period. It is furthermore immaterial that the agreement was reached as a
settlement of disciplinary proceedings seeking the claimant's discharge. The
facts in this case are readily distinguishable from those situations where an
employer seeks to unilaterally allocate accrued vacation credits to the period
following a worker's last day of work. Accordingly, we conclude that the
claimant is ineligible to receive benefits during the period under review.
DECISION: The initial determination of the local office
holding claimant ineligible to receive benefits during a paid vacation period
is modified to be effective June 4 through July 29, 1990 and, as so modified,
is sustained.
The decision of the
Administrative Law Judge, insofar as appealed from, is reversed.
COMMENT
This case is
distinguished from AB. 352,269A reported as A-750-1951. In that case the
assignment of claimant's vacation time to the period following the last day
worked was a unilateral action by the employer expressed in its employee
manual. This unilateral act did not establish a designated vacation period.
INDEX
1645A-12
1670-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
MARRIAGE
VOLUNTARY QUIT AFTER MARRIAGE
When claimant plans to
leave her employer after she marries, but the date to leave is indefinite and
dependent on her spouse's future permanent assignment to a specific location;
the claimant's subsequent quitting is due to following her spouse, not
marriage, and is with good cause.
AB 403,739
FINDINGS OF FACT: Claimant worked as a hospital aide for the
employer herein for approximately eight and one half years. On March 11, 1990,
claimant married a member of the United states Marine Corps, who was
temporarily stationed in North Carolina. At the time of her marriage, claimant
intended to relocate to wherever her husband was permanently stationed but did
not know where that would be, nor when he would receive his final orders. He
received orders for a five year assignment to Camp LeJeune, North Carolina
in April, 1990. Claimant quit her job to relocate to North Carolina on June 15,
1990, when her husband had obtained housing for them.
OPINION: The credible evidence establishes that while
claimant planned to leave her employment after she married, the date she was to
do so was indefinite. Her husband was temporarily stationed in North Carolina
at the time of their marriage. Claimant intended to relocate when her husband
was permanently stationed. They did not know where that was to be or when it
would occur. As the date of claimant's relocation was indefinite, we cannot say
that she left her employment due to her marriage. Under the circumstances
herein, we conclude that she left her employment to join her husband following
his permanent posting by the united States Marine Corps and his
obtaining housing for them. Accordingly, we conclude that claimant separated
from her employment under non-disqualifying conditions.
DECISION: The initial determination of the Out of State
Resident Office is overruled.
The decision of the
administration law judge is affirmed
COMMENT
This rule should be
carefully applied and limited to the specific elements present in this case. If
claimant's new spouse had a permanent job location and it was their intent to
move, claimant's working for a limited period of time after the wedding would
not suffice to change the nature of the quit from one due to marriage (c.f. AB
386,025). Similarly, a claimant who informs the employer, prior to marriage, of
a definite date she intends to leave, quits due to marriage.
INDEX
1420-14
1480 E-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
Total or Partial Unemployment
Self Employment
SPOUSES OF FAMILY HOME CARE PROVIDERS
A claimant may be
totally unemployed despite assisting his/her spouse, a Family Care Provider, by
sharing in domestic chores and lending a helping hand to the residents in their
home as a matter of common courtesy.
AB 405,115
FINDINGS OF FACT: Claimant was employed as a truck driver and
lost that employment under non-disqualifying conditions. Claimant's wife has
been certified by the New York State Office of Mental Health as a Family Care
provider in her own home. She cares for six elderly women in her home. Claimant
is not certified to provide any care to these residents nor is he employed by
his wife or the State to render any service for the residents. Claimant does no
more at home than he would do if his wife did not care for these residents. He
removes the garbage, does some house cleaning, and the normal chores of
changing a light bulb and so forth.
On his original claim
form, claimant stated he did not work or perform services for a company owned
by a relative.
OPINION: The evidence establishes that claimant is not
employed by his wife who is a certified Family Care home provider by the New
York state Office of Mental Health. Even if claimant rendered a helping hand to
his wife or these residents, it is merely common courtesy on his part. In
cleaning his own home or taking out garbage, he did no more than any other
spouse in sharing domestic chores. The determination that claimant lacks total
unemployment under these circumstances is erroneous and tends to obstruct state
policy encouraging family care home providers. We conclude that claimant is
totally unemployed and is eligible for unemployment insurance benefits since
claimant was not employed by a relative, claimant did not make a
misrepresentation. Accordingly, no forfeiture penalty should be imposed.
DECISION: The initial determinations of the local office
are overruled.
The decision of the
administrative law judge insofar as appealed from is reversed.
COMMENTS
- Although this case deals with the Office of Mental
Health, a similar program is also run by the Office of Mental Retardation
and Developmental Disabilities.
- A Family Home Care Provider is a licensed individual
whose private home is supervised by the New York State Office of. Mental
or the Office of Mental Retardation and Developmental disabilities as a
residence for clients of these agencies. These clients live-under the same
roof, share meals, social hours and family experiences with the provider
family.
It is
important to establish by fact finding, with both the claimant and the
licensing agency whether the claimant as well as the spouse has been licensed.
Spouses of licensed family Home Care Providers are considered totally
unemployed unless that spouse is also a licensed Family care provider.
- The amount of time the spouse of a Family Care Provider
spends helping his/her spouse or the residents should be examined to
determine whether claimant is available for work.
INDEX
1605-A-15
1615-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
Voluntary Separation
General
Voluntary or Involuntary
Anticipation of Discharge or Layoff
EMPLOYER AGREES TO EARLIER DISCHARGE
Where a definite date of
separation under non-disqualifying conditions has been set by the employer, a
request by claimant to leave the job at an earlier date, when agreed to
by the employer, did not. constitute a voluntary leaving without good
cause.
AB 405,053
FINDINGS OF FACTS: Claimant worked as a bartender at a restaurant
for about 11 months until August 30, 1990. He was informed on that day by the
employer's president that he was being discharged because of unsatisfactory
work performance and that his last day of work would be September 8, 1990. He
finished his shift that evening, but felt uncomfortable about continuing to
work for the next week. On the following night, he returned to work and asked
the president if the president would agree to terminate him immediately because
he felt uncomfortable. The president agreed and gave the claimant his last
paycheck.
OPINION: The record establishes that the claimant was
discharged on August 30, 1990 because of unsatisfactory work performance, said
discharge to take effect September 9, 1990. The employer consented to
accelerate claimant's discharge to August 31, 1990 upon claimant's request.
Under these circumstances, the Board concludes that there was no voluntary
separation (see Appeal Board 393,146). The initial determination should be
overruled.
DECISION: The initial determination of the local office
is overruled.
The decision of the
administrative law judge is reversed.
COMMENTS
- As a general principle, a claimant who quits in
anticipation of discharge does so without good cause. An exception to this
general rule was first enunciated by the Appellate Division in Matter
of Grieco (41 AD. 2nd 799). The Court found that the
claimant's leaving with the employer's acquiescence one day earlier than
his scheduled date of discharge did not constitute a voluntary leaving,
but rather an involuntary termination. Based on this case, and AB 391,146
cited by the Appeal Board, it is clear that the number of days should not
be considered controlling. The essential, question is whether the employer's
decision to discharge is definite and irrevocable (i.e. could any
improvement in claimant's job performance between the date of notice and
the intended date of discharge change the employer's decision). If so, and
the employer consents to an earlier date, the separation is involuntary.
- This case should be distinguished from the rule
reported in A-750 -1914 that:
"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."
If
the claimant refuses to continue working to the proposed date
of discharge, the two day time limit established in A-750-1914, would apply and
an earlier leaving would be voluntary. If the claimant's request for an earlier
discharge is granted, then the leaving is involuntary. Obviously, careful
fact-finding is required to distinguish between these two different scenarios.
- A claimant who files an original claim prior to the
effective date of the initially scheduled discharge should be questioned
regarding availability. The reason for requesting an earlier leaving may
indicate either an inability or unwillingness to work during that period.
- This case replaces the rule listed in the Interpretation
Service Index at 1615-2. There was no A-750 released in support of that
comment.
INDEX
1125-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIM
MISCONDUCT
ALCOHOL
ALCOHOLISM - CAUSAL RELATIONSHIP
Alcoholism can excuse
misconduct only if there is substantial evidence to show that the claimant is
an alcoholic, and that the alcoholism caused the behavior for which claimant
was terminated.
Matter of Allen 162 AD 2d 753
Appeal from a decision
of the Unemployment Insurance Appeal Board, filed September 9, 1986, which
ruled that claimant was disqualified from receiving unemployment insurance
benefits because his employment was terminated due to misconduct.
Claimant was employed as
a laborer for the United states Department of the Interior, National Park
Service. His employment was terminated following various incidents in which
claimant allegedly made threatening remarks to his superiors and others at his place
of employment. There were further claims that claimant drank alcoholic
beverages on the job contrary to his conditions of employment. Claimant
initially was determined eligible for unemployment benefits because of
alcoholism. The employer objected and a hearing, at which claimant did not
appear, was held. An Administrative Law Judge (hereinafter ALJ) overruled the
initial determination and concluded that claimant was disqualified from
receiving benefits due to misconduct.
Claimant applied to
reopen and a further hearing was held. Claimant appeared and testified at this
hearing, along with his supervisor. Claimant acknowledged that he was an
alcoholic and testified that he had undergone successful treatment in the
1970s. He denied making any threats or drinking on the job. He made no claim
that any alcoholism affected his behavior. Claimant's supervisor detailed the
incidents of claimed misconduct. The ALJ granted reopening and sustained the
employer's objection, finding that claimant's misconduct was responsible for
his discharge. On administrative appeal, the Unemployment Insurance Appeal
Board affirmed the ALJ finding that despite any alcoholism, claimant's behavior
constituted misconduct. This appeal followed (while this appeal was pending, we
affirmed resettlement of the record {154 AD 2d 732}).
Claimant contends that
the finding of misconduct is not supported by substantial evidence and the
failure to consider claimant's alcoholism is arbitrary and capricious. We
disagree. Alcoholism can excuse disqualifying misconduct if there is
substantial evidence to show that the claimant is an alcoholic, the alcoholism
caused the behavior for which the claimant was terminated and the claimant was
available for and capable of work (see, e.g., Matter
of Moore {County of Monroe- Hartnett},
144 AD 2d 123, 124). In this case, claimant never argued that any alcoholism
caused the behavior at issue. Rather, claimant's defense to the charge of
misconduct was simply to deny the alleged threatening conduct. These
conflicting versions of the circumstances raised a factual issue for the Board
which it resolved contrary to claimant's position. That claimant is an admitted
alcoholic, even if recovered, does not foreclose the possibility of his
committing disqualifying misconduct (see, Matter of Gaiser {General
Mills-Ross}, 82 AD 2d 629, 630, appeal dismissed 55 NY 2d
1039). On this record we conclude that the Board's determination that claimant
is disqualified from receiving unemployment benefits due to misconduct is
supported by substantial evidence and is not arbitrary and capricious.
COMMENTS
- The principles established by this decision were
discussed in detail in Field Memorandum 6-82, Alcoholism. That
memorandum should be reviewed in conjunction with this release.
- In the Matter of Moore cited by the
Court, claimant was discharged for excessive absenteeism. In that case, in
which determination of misconduct was ultimately affirmed, the Court held
that unless there is evidence that specific absences were caused by
claimant's illness, alcoholism could not excuse claimant's misconduct.
This type of case requires careful fact-finding to identify the exact
incident that caused claimant's discharge and to demonstrate the causal
connection, if any, between claimant alcoholism and that incident.
- Anytime we find that claimant is suffering from
alcoholism, we must consider whether claimant was available for and
capable of work.
INDEX
1125-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol
ALCOHOLISM -REPORTING TO WORK
A discharge for
reporting to work intoxicated is not misconduct if the claimant is an alcoholic
whose drinking is beyond his control.
AB 191,630
FINDINGS OF FACT: Claimant, a maintenance man, worked for a
hospital for approximately 5 1/2 years until October 29, 1973. At various times
during the period of his employment claimant reported for work in an
intoxicated condition or with the smell of liquor on his breath. The employer
tried to assist him with his drinking problem. The employer suggested that if it
deducted $25 a week from his salary and deposited it in a savings account
for him, he would not have enough money to drink. On November 17,
1970, the claimant acknowledged that he had been spending all his money on
drink and authorized the employer to deduct $25 a week from his salary and save
it for him. The claimant was repeatedly warned that if he continued to report
to work smelling of liquor, he would be discharged. On October 29, 1973, he
reported for work in an intoxicated condition and was sent home. When he
reported on the following day in the same condition, the employer terminated
his employment on October 31, 1973. The claimant is an alcoholic, who tried to
overcome his condition, but was unable to do so.
OPINION: Alcoholism is a disease. The claimant is an
alcoholic and was sick during the period of his employment. Although he made an
effort to overcome his addiction to alcohol, he was unable to do so. The
employer tried to help claimant to stop his drinking, but did not meet with
success. Claimant lost his employment because he reported to work in an
intoxicated condition. Since it appears that his drinking was beyond his
control and he was unable to overcome his illness, we conclude that claimant
did not deliberately provoke his discharge, nor did he voluntarily leave his
employment.
However, the matter of
claimant's availability for and capability of employment should be referred to
the insurance office for investigation and determination.
DECISION: The initial determination of the Local office
is overruled.
The decision of the
referee is affirmed.
The matter of claimant's
availability for and capability of employment is referred to the insurance
office for investigation and determination.
COMMENTS
1. Although this case
was decided under the provoked discharge theory which was greatly restricted
by Matter of James 34 NY2d 491; (A-750-1775), the principle
that such an action is not misconduct remains valid. The causal connection
between claimant's illness and his action is clear.
2. This case was previously
reported under Index 1125-2 without an A-750 release in support of that rule.
INDEX
1125-8
NEW
YORK STATE DEPARTMENT OF IABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol
ALCOHOLISM -ALCOHOL FREE AGREEMENT
A discharge for failure
to remain alcohol free as agreed by a stipulation to an arbitration award is
not misconduct if claimant's failure to do so is the direct result of
claimant's alcoholism.
AB 384, 707
The claimant worked as a
community associate for the sanitation department of a large municipality from
June 29, 1971 through November 5, 1984, when he was discharged. The claimant
grieved his discharge. By arbitration award, dated August 23, 1986, predicated
on a settlement reached upon between the employer and the claimant's union the
claimant was reinstated to his position on October 14, 1986, and placed on
probation for one year. Included in the award were provisions that the claimant
remain involved in a program for alcoholic abuse and meet the requirements of
said program that he remain alcohol and drug free on a permanent basis and
that: the employer had the right to submit the claimant to relevant tests for
alcohol or drug abuse. The said award included a finding that claimant was
suffering from alcoholism. On August 4, 1987, the claimant was given a
breathalyzer test and the test read .142, indicative that he was under the
influence of alcohol. The claimant was summarily discharged because he violated
the stipulation entered into by the said arbitration award, namely to remain
alcohol free.
OPINION: The credible evidence establishes that the
claimant was discharged due to his violating the terms of the stipulation made
part of the arbitration award, that he remain alcohol free.
Significantly, there is no indication or contention that the claimant was
discharged because he failed to attend the alcohol assistance program. Under
the circumstances, it is clear that the direct cause for his discharge was his
alcoholism. The Court and the Appeal Board have repeatedly held that alcoholism
is an illness, so that the claimant may not be held responsible for actions
which directly result from his drinking. (See Matter of Francis, 56
NY 2d 600; Appeal Board 371,774). The case before the Board is similar in
relevant circumstances to a previous Appeal Board case, wherein the Board held
that a claimant who was absent because he had been drinking, was suffering from
alcoholism and was discharged because of this absence, was discharged under
non-disqualifying conditions. (See Appeal Board 382,990). Although an
employer may discharge an employee for any lawful reason, not every such reason
rises to the level of misconduct. Under the circumstances, we conclude that the
claimant was discharged 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.
COMMENTS
1. This case is being
substituted for the rule associated with AB 218,416. It stresses the causal
connection between claimant's action and his illness.
2. If claimant had
failed to attend the alcohol assistance program, this would have resulted in a
disqualification due to misconduct, consistent with Matter of Restifo, 88
AD2d 1045; A-750-1950.
3. Field Memorandum 6-82
"Alcoholism", should be reviewed in connection with this
decision.
INDEX
1110-16
1125-11
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August, 1991
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Absence and Lateness
Alcohol
ALCOHOLISM -ABSENTEEISM
A discharge for repeated
absence from work is not misconduct if claimant's absences are attributable to
claimant's disease of alcoholism.
AB 382,990
FINDINGS OF FACT: The claimant worked as a clerk-typist for the
United States Postal Service from November, 1983 until May 29, 1987. During the
course of his employment the claimant had several absences which were
unauthorized. On January 1, 1987, a notice of proposed removal was issued to
the claimant because of his unauthorized absences. The employer and the
claimant's union met, and stipulated that the proposed notice of removal be
stayed, and that the claimant be placed on three months probation. It
was further stipulated that the claimant would be considered to be on final
warning, and that he would face discharge if he violated the employer's rules
and regulations. Subsequently, on March 3, April 17 and April 21, the claimant
was absent without leave. His absences were due to his having been drinking. He
made an effort to contact supervisory personnel. The claimant is an alcoholic.
As a result of these last three unauthorized absences, the claimant was
discharged.
Before these last
three absence, management suggested to the claimant that he attend the
employer's program for employees with a drinking problem. The claimant attended
almost ten open sessions of this program. He also was advised that if he could
not make the schedule and session to let the counselor know. Claimant found
that these sessions were not productive. In May, 1987, claimant started
attending and has continued attending programs given by alcoholics anonymous.
He has been attending such program. several times a week.
OPINION: The credible evidence establishes that the
claimant was discharged due to his last three unauthorized absences, which were
attributable to his alcoholism. significantly, there is no indication nor
contention that the claimant was discharged because he failed to attend the
employer's assistance program or that such attendance was a condition of
continued employment. Under similar circumstances an employee's failure to
participate in such a program on a level which was acceptable to the employer
has been held not to rise to the level of misconduct (see Matter
of Grajales, 104 AD 2nd 688; see Appeal Board 378,787).Under the
foregoing circumstances, his discharge was directly due to his disease of
alcoholism, and does not constitute misconduct (see Matter of Francis, 56
NY 2nd. 600). Accordingly, we conclude that the claimant was discharged 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.
COMMENTS
1. This rule is being
substituted for the rule associated with AB 245,002. It stresses the causal
connection between the claimant's action and his illness.
2. Field Memorandum 6-82
"Alcoholism", should be reviewed in connection with this decision.
A-750-2043
INDEX
1195-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Criminal Acts (Section 593.4)
FELONY MISCONDUCT -DETAILS DISCOVERED AFTER DISCHARGE
A claimant is subject to
the twelve month disqualification for criminal misconduct when subsequently
convicted of related acts constituting a felony if such actions occurred while
engaged in the employment in question and there is a sufficient link between
these acts and the reason for the loss of employment, even if the original
reason for discharge was only based on suspicion.
Matter of Powers AD2d decided November 21, 1991
Appeal from a decision
of the Unemployment Insurance Appeal Board, filed June 22, 1990, which ruled
that claimant was disqualified from receiving unemployment insurance benefits
because he lost his employment as a result of an act constituting a felony in
connection with his employment.
Claimant's employer
suspected that claimant had misappropriated its funds and had engaged in other
financial improprieties for his personal gain. When claimant could not
satisfactorily explain the financial irregularities, he was permitted to submit
a resignation in lieu of discharge.
After his termination
and following an investigation by Federal authorities, claimant was charged
with two felony counts of bribing a public official in violation of 13 USC
201(c)(1)(A). Subsequent to his resignation, claimant obtained employment
elsewhere until August 12, 1987 when he lost that employment under non
disqualifying conditions. After filing a claim for unemployment insurance
benefits, he received benefits through February 21, 1988 which were
subsequently determined recoverable by the Commissioner of Labor because
claimant was disqualified from receiving benefits in that he lost his
employment as a result of the acts alleged in the felony charges. An
Administrative Law Judge overruled the Commissioner's determination. Following
the Commissioner's appeal, the Board reversed the Administrative Law Judge's
decision and sustained the Commissioner's determination.
We affirm. Claimant was
properly disqualified from receiving benefits pursuant to Labor Law Section
593(4) because he lost his employment due to an act constituting a felony in
connection with his employment. Claimant conceded that the acts which led to
his indictment occurred while engaged in the employment at issue. Given that
these actions were committed during the course of claimant's employment and
eventually led to his felony conviction, we find a sufficient nexus between
claimant's loss of employment and those actions to warrant disqualification (see,
Labor Law Section, 593{4}). Accordingly, inasmuch as the determination is
supported by substantial evidence in the record, it should be affirmed
(see, Matter of Mende {Levine}, 50 AD2d 662).
COMMENTS
1. This case dealt only
with the issue of a discharge for a felony misconduct (Section 593.4)
because the claimant had subsequent employment prior to filing his claim. A
similar rule concerning the same principle, regular misconduct (Section 593.3)
is reported in the Interpretation Service Index in Section 1150 C-4 (AB
1360-39).
2. Determinations of
criminal misconduct are issued by Adjudication Services Office (U.I. Manual III
6226).
INDEX
1110-17
1120-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Absence and Lateness
Acknowledgment and Agreements
ABSENTEEISM IN SPITE OF AGREEMENT
Discharge for absenteeism
caused by a verified illness is not misconduct despite a probation agreement
that any future absences would be cause for immediate dismissal.
AB 408,972
By initial determination
of the local office, the claimant was disqualified from receiving benefits
because of a loss employment through misconduct in connection therewith
effective March 16, 1991. The claimant requested a hearing.
The Administrative Law Judge
held a hearing at which all parties were accorded a full opportunity to be
heard and at which testimony was taken. There were appearances on behalf of the
claimant and of the employer. By decision dated May 16, 1991 the Administrative
Law Judge sustained the initial determination.
The claimant appealed
the judge's decision to the Board.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a machine
operator for a manufacturing company for about two years until March 15, 1991.
He had a record of excessive absenteeism for which he was discharged in
January, 1991. After his union intervened, the claimant was reinstated on a 180
day probation period, with the condition that any future absences would be
cause for immediate dismissal. On March 15, 1991 the claimant called the
employer shortly after the start of his shift, stating he would be absent
because he was ill. He visited his doctor later that day. The claimant
presented a doctor's note to the employer on his return indicating that he was
unfit for work on March 15, 1991, and was cleared to return to work on March
18, 1991. Nevertheless, the claimant was discharged pursuant to the terms of
the reinstatement agreement, because he was absent on March 15.
OPINION: The credible evidence establishes that the
claimant was discharged for being absent on March 15, 1991, in violation of a
probation agreement during which the claimant would be subject to dismissal for
any absence in the probationary period. However, the claimant had a doctor's
note to verify that he was ill on that day and the claimant had called his
employer to report the circumstances of his absence. Accordingly, we conclude
that the claimant's actions did not constitute misconduct and his job ended
under non disqualifying circumstances.
DECISION: The initial determination of the local office
is overruled. The decision of the Administrative Law Judge is reversed.
INDEX
1640 B-9
1735 B-2 c
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Assignment To Other Work
Promotion
VOLUNTARY QUIT -DEMOTION
Choosing layoff, rather
than accepting demotion to a position previously held, is a voluntary quit
without good cause when the employer, after a reasonable trial period,
determined that claimant is not performing satisfactorily in the new position.
AB 406,302
By initial determination
of the local office, the claimant was disqualified from receiving benefits
because of a voluntary leaving of employment without good cause effective
November 3, 1990. The claimant requested a hearing.
The administrative law
judge held a hearing at which all parties were accorded a full opportunity to
be heard and at which testimony was taken. There were appearances on behalf of
the claimant and of the employer. By decision dated January 25, 1991, the
administrative law judge overruled the initial determination.
The Commissioner of
Labor appealed the judge's decision to the Board. In connection with its review
of the case, the Board considered the arguments contained in the written
statement submitted.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked for a retail auto parts
store for about one year until November 2, 1990. He was hired as a
clerk/cashier at an hourly wage, earning $250 per week. He was subsequently
promoted to a parts manager, at a salary status, earning $350 per week. He
underwent a three week training period and worked in such capacity for another
three weeks. Based on a review of his performance during these periods, the
employer concluded that claimant was not suited for the position, citing
problems with lateness, his attitude toward workers, and perception of the job
scope. The district manager told claimant he would be relieved of his duties as
manager and offered him the option to return to his prior position, at the
lower salary. Claimant declined, saying it was not in his best interest and
that it was just time for him to "get out."
OPINION: The evidence establishes that claimant was
relieved of his duties as manager a few weeks after being promoted to the
position because the employer was dissatisfied with his performance, which did
not meet the employer's expectations. The employer had the prerogative to
remove an employee who was found not suitable for the position. Furthermore,
the employer did not intend to discharge claimant but offered to return him to
his former position. We disagree with the judge's conclusion that claimant was
entitled to decline the offer because the promotion was not conditioned upon
returning to his former position if his performance as manager was deemed
unsatisfactory.
Under these
circumstances, we conclude that claimant voluntarily left his employment for
non-compelling reasons and without good cause.
DECISION: The initial determination of the local office
is sustained.
The decision of the
administrative law judge is reversed.
COMMENTS
1. This decision is
consistent with similar holdings involving civil service employees who revert
to their permanent title from a provisional appointment (AB 300,900;
A-750-1901). It is significant in this case that the claimant's inadequacies
became apparent only three weeks after he began to function in his new job.
Clearly after some period of time claimant's promotion and increased salary
become a part of the terms and conditions of employment. Once this occurs, then
a proposal by an employer to demote claimant for poor job performance may
constitute a violation of these terms and conditions and provide claimant good
cause to quit. The period of time necessary to evaluate claimant's performance
may be built into the promotion in the form of a probation period. But even if
it is not specifically stated, some trial period is inherent in every
promotion. How long this is depends on the nature of the job and the practices
in the industry.
2. The principles used
to resolve cases involving demotion for cause are different than those used in
cases involving "bumping" caused by reductions in force and site
closings. For these purposes the Matter of Bus (32 NY 2d 955;
A-750-1741) would control.
A 750-2046
INDEX
1665.5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Irregular, Part-time or
Temporary Employment
V0LUNTARY QUIT -INCREASED TRANSPORTATION COST
Claimant has good cause
to quit a part-time jab paying less than the benefit rate when increased
transportation costs, relating to that job, are caused by the loss, under
non-disqualifying conditions, of a concurrent full-time job located nearby.
AB 409,186
By initial determination
of the local office, the claimant was disqualified from receiving benefits
because of a voluntary leaving of employment without good cause effective March
31, 1991. The claimant requested a hearing.
The Administrative Law
Judge held a hearing at which all parties were accorded a full opportunity to
be heard and at which testimony was taken. There was an appearance by the
claimant. By decision dated June 6, 1991 the Administrative Law Judge sustained
the initial determination.
The claimant appealed
the judge' s decision to the Board.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: Two days after the claimant lost her
full-time, 40 hour position as an electronics worker, under non-disqualifying
conditions, she resigned her concurrent part-time job. She worked 10 to 14
hours and had net earnings of about $45.00 a week at that job. The claimant's
shift at her full-time job ended at 4:30 P.M. She would take public
transportation to the part-time job, which started at 5:00 P.M. As there was no
public transportation available at 9:30 P.M., when the shift at her part-time
job ended, the claimant had to take a cab home. The cab ride costs $8.00 a
trip. Since claimant would no longer be going from her full-time job to her
part-time job, it would have been necessary for her to leave from her home. As
there was no public transportation available from claimant's home to her
part-time job, she would have had to take cabs both to and from work. Claimant
quit her part-time job because she believed that she would lose money if she
continued working there.
OPINION: The credible evidence establishes that the
claimant quit her part-time employment because an unreasonable amount of her
earnings would have to be dedicated to transportation expenses. We
believe That under these circumstances, the claimant was placed in an
untenable situation which gave her good cause to leave her part-time job.
Furthermore, we believe
that the judge's reliance on Matter of Grandy, (64 AD 2d
796) is misplaced. The claimant in Grandy did not have the
unreasonable transportation expense that the claimant herein had.
DECISION: The initial determination of the local office is
overruled.
The decision of the
Administrative Law Judge is reversed.
COMMENT
This case is a further
exception to the Matter of Grandy (64 AD. 2d 796;
A-750-1862), which holds that quitting a part time job because the salary is
less than the benefit rate is without good cause if there is no change in the
terms and conditions of the part-time employment. An exception to this
principle was established in AB 355,494 (A-750-1962) which held that such a
quit can be with good cause. That case involved child care costs. In the
present case the issue is the travel costs which increased. In any event, we
should be aware of the possibility of situations outside the part-time
employment itself that may provide good cause.
INDEX
1605E-3
1615-11
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Voluntary Separation or Misconduct
Anticipation of discharge or layoff
Voluntary Quit -Resignation in Lieu of Pursuing a Grievance
Resigning, rather than
pursuing a grievance, is not a voluntary leaving of employment when claimant
has been suspended without pay pending discharge and the employer, in return,
for claimant's resignation, agrees to remove all charges, but if by pursuing
such grievance and losing claimant would be unable to work In his/her chosen
occupation again.
AB 398,125
The claimant appeals
from the decision of the administrative law judge filed January 9, 1990,
sustaining the initial determination of the local office disqualifying the
claimant from receiving benefits effective November 8, 1989 because he
voluntarily left his employment without good cause.
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, a representative of the
employer and a representative of the Commissioner of Labor appeared and
testimony was taken. The Board considered the arguments contained in the
written statement submitted on behalf of the claimant on appeal.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked as a police officer for a
municipality for about two years until November 7, 1989. On that date, claimant
was charged with violating the employer's rules by having unauthorized people
in his patrol car and was suspended without pay, pending discharge. Pursuant to
terms of the contract between claimant's union and the employer, claimant could
have requested a grievance hearing. Subsequently, a meeting was held, attended
by the claimant, his union representatives and representatives of the employer.
At this meeting, claimant was informed that, if he pursued his contractual
right to a grievance and lost, it was likely that he could never again work as
a police officer. As a result, a settlement agreement was entered into whereby
claimant was permitted to submit a resignation "for personal
reasons." In exchange therefor, the employer agreed to delete all
references, to the charges from claimant's record and the claimant agreed that
he would take no legal action against the employer. Claimant consented to these
terms in order to protect his employment record so that he could seek
employment as a police officer in other jurisdictions.
OPINION: The undisputed evidence establishes that the
claimant was permitted to submit a resignation in settlement of charges brought
against him by the employer in order to preserve his employment record. Prior
decisions by the Board and by the Courts have held that the failure to pursue
grievance proceedings does not, in and of itself, constitute a voluntary
leaving of employment. (Appeal Board 267,540A; 311,041; Matter of
Guerin, 88 AD2d 1018, motion for leave to appeal denied, 57 NY2d 604; Matter
of Batemark, 147 AD2d 738). Furthermore, the facts in this case are
distinguishable from those in Matter of Cahill, 77 AD2d 734,
wherein a claimant served with charges seeking his termination sent a letter to
the employer indicating that he accepted the dismissal. In the instant case,
claimant did not simply accept the employer's decision to discharge him but
resigned only after discussing with his union the adverse ramifications if he
went ahead with the grievance and lost and after having the employer agree to
remove all charges from his record. Accordingly, we conclude that the claimant
did not leave his employment voluntarily and that his 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
- In all cases of this nature complete and detailed fact
finding is required to determine if the reason for claimant's suspension
without pay constitutes misconduct. If it does, a misconduct determination
is appropriate even though the charges are not part of claimant's official
personnel file. This misconduct determination would not end with
claimant's resignation. Claimant must obtain the requisite weeks of
employment and earnings to terminate the disqualification. In Matter
of Slade (34 NY2d 919; A-750-1776), claimant was suspended
without pay for a definite period. At the end of this period claimant was
scheduled to return to work but did not do so because of lack of work. The
Court found the claimant eligible as of that date. In this case claimant
ended his grievance by resigning.
- Unlike the situation reported in A-750-1963, in this
case the claimant in addition to not pursuing a grievance, performed
the overt act of submitting a resignation. The Appeal Board decided
however, in light of the offer made to the claimant, his decisions was not
truly voluntary.
- This case should be distinguished from situations where
claimant is served with the charges and a notice of intent to discharge,
but continues to work or receive a salary from the employer pending
arbitration. In that circumstance claimant's leaving would be voluntary.
INDEX
910-12
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Base Period Earnings and Employment
COVERAGE -EMPLOYEES OF RELIGIOUS ORGANIZATIONS
To exclude a claimant's
services other than as a caretaker under Section 563(2)(c) it is necessary to
review the claimant's functions and duties to determine if the duties were
religious in nature.
Matter of Conde, 180 AD 2d 911, decided February 20, 1992
Appeal from a decision
of the Unemployment Insurance Appeal Board, filed February 6, 1990,
which, inter alia, assessed Gates Community Chapel Inc. for
unemployment-insurance contributions.
It is not disputed that the
campus facility for troubled teenagers which is operated by the employer a
Christian Church, serves a religious purpose. Rather, the question is whether
claimant's duties were of a "religious nature" so as to exclude him
from unemployment insurance coverage under Labor Law Section 563(2)(c).
Claimant's duties involved the development and repair of the campus when it was
first purchased by the employer and to raise funds for that purpose. On the
basis of the record before us, there is substantial evidence to support. the Unemployment
Insurance Appeal Board's conclusion that claimant's activities were inherently
secular in nature and were therefore covered by the Labor Law (see, Matter
of Vecchio [Long Is. Lutheran High School -Hartnett],
176 AD 2d 1100, [Oct. 24, 1991]). The employer's remaining constitutional
arguments have been considered and likewise rejected as being without merit
(see, Matter of Klein [Hartnett], 78 NY 2d 662, [Dec.
23, 1991]).
Mikoll, J.P., Yesawich Jr., Mercure,
Crew III and Casey, JJ., concur.
ORDERED that the decision is affirmed, without
costs.
COMMENTS
- Section 563(2)(c) excludes from coverage "a person
employed at a place of religious worship as a caretaker or for performance
of duties of a religious nature, or both, unless voluntary election has
been made."
- In Matter of Conde, the Court
upheld the Appeal Board's decision that claimant's duties involving the
development and repair of a campus and raising funds for that purpose were
inherently secular in nature, even though the campus facility operated by
a Christian Church serves a religious purpose
- In Matter of Vecchio, the Court upheld
a decision by the Appeal Board that a history and social studies teacher
in a school operated by the Lutheran Church was covered. The Court found that
claimant did not teach any religious subjects, nor provide any religious
instructions. Although she did attend weekly religious services, this was
merely as a monitor. On the other hand in Matter of Klein, the
Court upheld a decision by the Appeal Board that the services of an
English teacher in a Jewish school were religious in nature, and
therefore, excluded. The Board found that the administrators screened the
books and observed the work of the teachers to insure that the students
were taught along traditional Jewish lines.
In a
subsequent case, Matter of Faith Bible Church, 179 AD 2d 308,
decided March 18, 1992, the Court made it clear that the commissioner is not
required to accept the employer's characterizations of claimant's services as
being "of a religious nature." That case involved church secretaries.
4.
The issue of whether a claimant's employment in a religious school is covered
is to be resolved by the Liability and Determination Section (see U.I.
Manual 3401, especially footnote 1). To facilitate this process, the Request
for Coverage Determination should contain information as to the job duties, the
religious training required, and in what respect the junctions and duties might
be considered religious in nature. In addition, with regard to teachers,
information should be included as to the courses the claimant taught, any
screening or supervision by administrators of books or services to insure
compliance with; religious tenets, requirements and responsibilities in
connection with religious services, and requirement to provide religious
instruction.
INDEX
1605 D-9
1605 F-9
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Effective Date and Termination.
Voluntary Separation or Refusal
Voluntary Resignations and Scheduled Temporary Lay-offs
When a claimant
voluntarily resigns without good cause prior to a scheduled temporary lay-off,
the effective date of disqualification is the day following the last day of
claimant's employment even though this date coincides with the date of the
scheduled temporary lay-off.
AB 411,606
By initial determination
of the Out-of-State Resident Office, the claimant was disqualified from
receiving benefits because of a voluntary leaving of employment without good
cause effective May 31, 1991, and by further determination issued on July 30,
1991, was held ineligible to receive benefits under Section 590.10 based on
claimant's school employment. The claimant requested a hearing.
The Administrative Law
Judge held a telephone conference hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the employer. By decision dated
September 3, 1991, the Administrative Law Judge overruled the initial
determinations.
The employer appealed
the judge's decision to the Board. In connection with its review of the case,
the Board considered the arguments contained in the written statement
submitted.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: Claimant was an instructor at business
college for three years until May 30, 1951, when the semester ended. The
employer hired the claimant on a semester by semester basis. The number of
hours claimant was to teach were usually determined in late June or
early July. On May 20, 1991, the claimant submitted a letter of resignation to
the employer because she was relocating to Florida with her husband. Neither
claimant nor her husband had any definite offer of other employment. Claimant
continued to teach through .the last day of school and moved to Florida shortly
thereafter. The employer fully expected to offer an assignment to claimant in
the 1991-92 school year but did not do so because of claimant's
relocation.
OPINION: The credible evidence establishes that the
claimant submitted a letter of resignation before the semester ended on June 1.
Since the claimant was aware that the employer normally informed teachers of
fall semester assignments at the end of June, the employer was prevented from
offering an assignment to the claimant because of her resignation and
relocation. We also note that neither claimant nor her husband had job offers
in Florida at the time of her relocation. Accordingly, we conclude that the
claimant left her employment for reasons which are personal and non-compelling
and without good cause. In view of the foregoing, the further initial
determination is academic and need not be decided.
DECISION: The initial determination of the Out-of-State
Resident Office of voluntary quit is sustained.
The decision of the
Administrative Law Judge, insofar as it overruled the initial determination
voluntary quit, is reversed.
COMMENTS
1. Claimant tendered a
voluntary resignation prior to a temporary layoff, effective
the last day of scheduled work. The Board affirmed a disqualification effective
the day following the last day of work.
2. This case is
distinguished from the case discussed in A-750-1917, in which the Board ruled
that a voluntary termination of employment without good cause which
occurs during a period of temporary layoff results in a disqualification
from benefits effective the date scheduled for return to work.
3. In that case, the
Board expressly overruled AB 142,178 which held that voluntary leaving of
employment without good cause during a period of temporary layoff results in a
disqualification from benefits effective the date the claim for unemployment
benefits was filed during the period of temporary lay-off.
4. Comment 2 in
A-750-1917 should be marked obsolete and no longer followed.
INDEX
1010-9
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November
1992
INTERPRETATION
SERVICE-BENEFIT CLAIMS
Hearings and Appeals Timeliness
TIMELINESS -TELEPHONE REQUEST
Claimant's attempt to
request a hearing by telephone within thirty days of the mailing of the initial
determination does not constitute a timely hearing request if claimant is
advised of the necessity to make such request in person or by mail and claimant
has sufficient time to comply but does not act promptly to make such request
within the statutory period.
AB 409,185
By initial determination
of the Out-of-State Resident Office, the claimant was disqualified from
receiving benefits because of a voluntary leaving of employment without good
cause effective December 8, 1990 and claimant's right to future benefits was
reduced by 4 effective days because claimant wilfully made a false
statement. The claimant requested a hearing. The Commissioner of Labor imposed
a preliminary objection that the hearing request was not made within the
statutory period.
The Administrative Law
Judge held a hearing at which all parties were accorded a full opportunity to
be heard and at which testimony was taken. There was an appearance by the
claimant. By decision dated May 28, 1991 the Administrative Law Judge overruled
the initial determinations and the Commissioner of Labor's timeliness objection.
The Commissioner of
Labor appealed the judge's decision to the Board. In connection with its review
of the case, the Board considered the arguments contained in the written
statement submitted.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: Claimant filed an original claim for benefits
effective December 8, 1990. The initial determinations were mailed to Claimant
on February 7, 1991 and received by him shortly thereafter. On the back of each
determination there is a notice to the parties that, hearing requests must be
made in writing, by mail or in person at the local office, not more than 30
days from the date of the determination. On March 4, 1991, claimant called the
local office and requested a hearing. He was advised that his request must be
made in person or in writing. He did not make a written request for a hearing
until ten days later, on March 14, 1991.
OPINION: The credible evidence establishes that the
initial determinations were mailed to claimant on February 7, 1991 and received
by him shortly thereafter. Claimant telephoned his local office on March 4,
about a hearing, and was advised to make a request by mail or in person at the
local office. He did not make a request in writing until March 14, 1991, five
days after the statutory period had passed. The requirement that a hearing
request be made in writing or in person at the local office, is more than a
mere technicality (See: Appeal Board Rules and Regulations 12 NYCRR 461.1).
Furthermore, claimant was duly advised of his obligation to make a request in
writing, and had sufficient time to comply, but failed to act promptly. We,
therefore, conclude that the claimant's failure to make a timely request for a
hearing cannot be excused. Accordingly, the administrative law judge lacked
jurisdiction to rule on the merits of the issues in this case.
DECISION: The Commissioner of Labor's timeliness objection
is sustained.
The initial
determinations remain in effect.
The decision of the
Administrative Law Judge is reversed
Index
1715-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
1993
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
School or Training Course,
Quit To Attend
VOLUNTARY QUIT TO CONTINUE TRAINING
Employment which
coincides with attendance at training is not "stopgap"; therefore,
quitting such employment because a change in the training schedule conflicts
with the hours of work is without good cause.
AB 415,284A
The Board on its own
motion, pursuant to Section 534 of the Law, hereby reopens for reconsideration
its decision filed in the Department of Labor on January 14, 1992 (Appeal Board
No. 407,499) insofar as it affirmed the decision of the Administrative Law Judge
filed April 3, 1991, insofar as it sustained the initial determinations of the
local office disqualifying the claimant from receiving benefits effective
January 21, 1990, because he voluntarily left his employment without good
cause, charging him with a recoverable overpayment of $598 in benefits, and
denying his application for vocational training pursuant to Section 599 of the
Law.
A further hearing was
held before the Board at which all parties were accorded a full opportunity to
be heard, at which testimony was taken, and at which there were appearances on
behalf of the claimant, the employer and the Commissioner of Labor.
Upon due consideration
of the entire record herein, and Due deliberation having been had,
Now, therefore, based on
the entire record and testimony in this case, and on all of the proceedings
heretofore had herein, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a driver by an
automobile parts retailer for about four months until January 20, 1990. He was
hired to work from 8 a.m. until 1 p.m. on Tuesdays, Thursdays and Saturdays. He
decided to leave his job because he wanted to continue his course in air
conditioning and heating repair at a college. His class hours for the Spring,
1990 semester were changed so that they conflicted with his Tuesday work hours.
He had made no agreement with the employer that would have enabled him to vary
his hours based upon changes in his class schedule. The employer had no work
for the claimant that conformed to his class schedule. He filed a claim for
benefits effective January 22, 1990. He received $598 in benefits before his
claim was redetermined on May 30, 1990.
The claimant had begun
the course in air conditioning and heating repair in August, 1988, while
claiming benefits under a prior claim effective November, 1988. He had received
approval under Section 599 of the Law for such course in connection with the
November, 1988 claim. That benefit year expired in November, 1989. The course
was not to be completed until May, 1990.
OPINION: The credible evidence now before the Board
establishes that the claimant left his part-time employment in order to continue
his studies. There was a conflict between his hours of employment and the class
hours, and the claimant chose to pursue his studies so that he could increase
his prospects of more gainful employment in the future.
It has been repeatedly
held that a resignation from employment in order to continue one's education is
without good cause under the Unemployment Insurance Law (See Matter of Manning, 59
AD 2d 818, rev'g Appeal Board No. 237,398. Also, see Appeal Board No.
386,586). In the case before us the course of study happens to be one on which
the local office had conferred approval in connection with a previous claim for
benefits. In Appeal Board No. 165,640, the Board held that the language of
Section 599 indicates that a claimant must be eligible to receive benefits and
does not become ineligible by reason of attendance at a training course
approved by the Commissioner. It follows that a disqualification for voluntary
leaving without good cause of the last employment prior to the filing (if a
given claim for benefits negates any possibility of approval of a training
course until and unless that disqualification is broken by the claimant
according to the provisions of the Law.
The fact that the
claimant had secured prior approval of the same course of study does not by
itself give him good cause to leave any employment he may undertaken during
the course. This case is distinguishable from Appeal Board No. 173,143F in
which a claimant, after applying to a training facility for admission to
vocational training, obtained employment intending to work until the training
started. In that case the Board held that good cause existed for the claimant
to leave the stopgap employment. In the case at hand the employment can
not be considered as stopgap, because the claimant was so employed prior
to filing the latest claim. His eligibility was a condition precedent to the
approval of training. The application for training which had been approved
under the prior claim constitutes approval under the prior claim, only, and can
not extend in to the period of the new claim. We conclude that the
claimant left his employment to continue his education, a personal and
non-compelling reason within the law, and without good cause.
Since he is not eligible
to receive benefits, he was overpaid $598 in benefits which he received prior
to the redetermination of his claim. His application for vocational training
must also be disapproved.
DECISION: The decision of the Board filed January 14,
1992 (Appeal Board No. 407,499), insofar as it has been reopened, is hereby
rescinded.
The initial
determinations of voluntary leaving of employment without good cause,
recoverable overpayment and denial of application for vocational training are
sustained.
The decision of the
Administrative Law Judge is affirmed.
COMMENTS
1. In general, quitting
a job to attend school is without good cause (Matter of Manning, 59
AD2d 818; cited. A-750-1842). The major exception to this holding is
a quit of "stopgap" employment (AB 173,143 F; A-750-1750).
These two releases should be reviewed in conjunction with this case.
2. Complex issues of
this nature may be referred through channels to Adjudication Services Office,
Interpretation and Central Services Section, Telephone (212)352-6850.
INDEX
2030-B4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
1993
INTERPRETATION
SERVICE-BENEFIT CLAIMS
SECTION 599
Employment opportunities
Future Occupation (after training)
SECTION 599 -CAREER GOAL
In order to be
approvable under section 599, claimant's course of study must lead to the
qualifications or skills for a specific occupation. Attendance at college
without a specific occupation in mind does not satisfy this requirement.
AB 416,084
By initial determination
of the local office, the claimant was denied approval for career and related
training under section 599. The claimant requested a hearing.
The Administrative Law
Judge held a hearing at which all parties were accorded a full opportunity to
be heard and at which testimony was taken. There were appearances on behalf of
the claimant and of the Commissioner of Labor. By decision dated February 21,
1992 the Administrative Law Judge overruled the initial determination.
The Commissioner of
Labor appealed the judge's decision to the Board. In connection with its review
of the case, the Board considered the arguments contained in the written
statement submitted.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant filed his claim for benefits
effective December 9, 1991. While serving in the military he accumulated
credits for courses which he hopes to combine with credits he will accumulate
at a two-year college in New York in order to obtain a Bachelor's degree. He
requested approval for his studies in the Spring, 1992 semester at the
two-year college at which he is a full-time but non-matriculated student. While
awaiting the decision as to which of his credits would be accepted toward a
degree, he had not yet made a decision as to his major course of study.
OPINION: Following the 1991 amendments to section 599
of the Labor Law, the Commissioner of Labor promulgated new regulations
interpreting the amended legislation. Among these are Rule 482.2(b).
This regulation defines "career or related training", the term which
was substituted by the Legislature in 1991 for "vocational and related
training", as "any training program clearly leading to the
qualifications or skills for a specific occupation..." In order to obtain
approval for training, a claimant's training program must satisfy the new
regulations. In the case at hand, the claimant was not even certain as to his
degree plans because he was not a matriculated student and did not know how
many credits would be counted towards his four-year degree. He therefore was
attending college for the Spring, 1992 semester without a specific
occupation in mind. Under the amended law and the new regulations, his training
was properly disapproved.
DECISION: The initial determination of the: local office
is sustained.
The decision of the
Administrative Law Judge is reversed.
COMMENT
For a more detailed
discussion of the regulations see Field Memorandum 8-91, Section 599
Regulations.
INDEX
2030-B5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
1993
INTERPRETATION
SERVICE-BENEFIT CLAIMS
SECTION 599
Employment opportunities
Future Occupation (after training)
SECTION 599 -COMPLETION OF TRAINING WITHIN TWO YEARS
To determine whether a
claimant can complete a program of training within two years, the duration of
time required for claimant to acquire the skills, certificate, or degrees
necessary to achieve claimant's ultimate occupational goal
must be considered.
AB 417,515
By initial
determinations of the local office, the claimant was held ineligible to receive
benefits because claimant was not available for employment effective January
13, 1992; and denied approval for training under section 599 of the New York Unemployment
Insurance Law. The claimant requested a hearing.
The Administrative Law
Judge held a hearing at which all parties were accorded a full opportunity to
be heard and at which testimony was taken. There were appearances on behalf of
the claimant and of the Commissioner of Labor. By decision dated April 7, 1992
the Administrative Law Judge overruled the initial determination of denial of
approval of vocational training and made no ruling on the issue of
unavailability.
The Commissioner of
Labor appealed the judge's decision to the Board. In connection with its review
of the case, the Board considered the arguments contained in the written
statement submitted.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant, who prior to the filing of a
claim of benefits had worked as a cashier, enrolled in a two-year college in
January 1992 to obtain an Associate's degree in Individual Studies. The
claimant attends classes five days per week. As part of one course entitled
"community service Seminar", the claimant does volunteer work for a
biogenetics research company. After receiving her Associate's degree, which,
she expects by January 1994, the claimant plans to continue her studies in the
evening with the goal of a Bachelor's degree in Biology, while working full
time during the day at the company at which she does volunteer work. Her
ultimate career goal is to become an oceanographer, which requires a graduate
degree. The claimant is unwilling to accept full-time employment while she is
pursuing her education.
OPINION: The credible evidence establishes that the
claimant was pursuing training which leads to a degree in Individual Studies, however
her ultimate goal is a graduate degree and a career in oceanography. We
disagree with the conclusion of the Administrative Law Judge that the
claimant's training should be approved. Her own testimony indicates that she is
not interested in a career as a medical laboratory technician, and she did not
pursue that specific course of study which is available at the same college.
Even though the claimant
suggests that her current course work, in addition to her volunteer work, will
enable her to work as a laboratory technician at the biogenetics research
company for which she now volunteers, she has not shown that the completion of
the two-year degree will clearly lead to qualifications or skills for her
specific career occupation. All that the two-year degree will do for her
is enable her to continue toward a graduate degree. That is her goal.
The regulations issued by the Commissioner of Labor, which were promulgated
following the 1991 amendments to Section 599, require such a showing {See 12
NYCRR 482.2(b)}. Based on the foregoing, we conclude that the claimant's
request for approval of training under Section 599 of the Law was properly
denied.
The claimant is no
longer willing to work full time due to her full time school attendance.
Therefore, the claimant is ineligible for benefits due to unavailability for
employment.
DECISION: The initial determinations of the local office
are sustained.
The decision of the
Administrative Law Judge is reversed.
COMMENTS
1. For a more detailed
discussion of the regulations see Field Memorandum 8-91 Section 599
Regulations.
2. Under section
599.2(c), a training program must not require more than twenty-four months to
complete. This is measured by the amount of time remaining in the course. As in
the instant case there are some programs of training that may extend beyond one
educational institution. Careful fact finding is required to identify
claimant's occupational goal. It is that goal which must be achieved within
twenty-four months. The fact that claimant may complete the requirement
for a certificate or degree at one of the institutions providing the training
within the time limit is not controlling.
INDEX
2060-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
1993
INTERPRETATION
SERVICE-BENEFIT CLAIMS SECTION
SECTION 599
Additional Benefits
ADDITIONAL BENEFITS (599.2)
Claimant's eligibility
for additional benefits pursuant to section 599.2 is measured by the number of
effective days of regular benefits claimant has remaining at the time she
applies for, is accepted in, or begins approvable training. Regular benefits mean
benefits payable under state law, excluding extended benefits,
additional benefits or federally legislated emergency benefits.
AB 421,351
By initial determination
of the local office, the claimant was denied additional benefits for attending
an approved course of training pursuant to section 599.2 of the Labor Law. The
claimant requested a hearing.
The administrative law
judge held a hearing at which all parties were accorded a full opportunity to
be heard and at which testimony was taken. There was an appearance by the
claimant. By decision dated August 18, 19!12, the administrative law judge
overruled the initial determination.
The Commissioner of
Labor appealed the judge's decision to the Board. In connection with its review
of the case, the Board considered the arguments contained in the written
statement submitted on behalf of the Commissioner of Labor.
Based on the record and
testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant filed an original claim for
benefits and was held eligible without disqualifying conditions effective May
20, 1991. She received 26 weeks of unemployment insurance benefits, the last
payment of such benefits having been made to her for the statutory week ending
November 24, 1991. The claimant then applied for and received Emergency
Unemployment Compensation (hereinafter referred to as "EUC")
benefits, the last payment of such benefits having been made to her for the
statutory week ending July 12, 1992.
On or about March 8,
1992, the claimant applied for and was accepted in a paralegal training program
which began March 26, 1992, and was scheduled to end November 2, 1992. The
training was approved under section 599.1 of the Labor Law, and the claimant
attended the training while she received the remaining weeks of EUC benefits.
The claimant seeks additional benefits pursuant to section 599.2 of the Labor
Law for the weeks beginning July 13, 1992, the period beyond the Exhaustion of
EUC benefits.
OPINION: Section 599.2(a) of the Labor Law, provides in
pertinent part that "... a claimant attending an approved training course
or program under this section may receive additional benefits of
up to 104 effective days following exhaustion of regular and
if in effect, any other extended benefits ...The duration of
such additional benefits shall in no case exceed twice the
number of effective days of regular benefits to which the
claimant is entitled at the time the claimant is accepted in, or demonstrates
application for, appropriate training." (Emphasis added.) Under this
section of the law, a claimant may receive "additional benefits"
while pursuing approved training only if the claimant is entitled to
"regular benefits" at the time of acceptance in, or demonstration of
application for, the approved training.
It is undisputed that
the claimant applied for and was accepted in the training program on or about
March 8, 1992, and that she was receiving EUC benefits at that time. Initially,
we note our disagreement with the conclusion of the judge that claimant was entitled
to additional benefits because "she was receiving extended benefits at the
time she started the training." The benefits which claimant was receiving
were not "extended benefits", as provided for in section 601 of the
Labor Law, enacted pursuant to the Federal-State Extended Unemployment
Compensation Act of 1970. (Title II of Public Law 91-373, 84 Stat. 695,
708, approved August 10, 1970, as amended). Such benefits were not in
effect during the periods in issue herein. The question remains, however,
whether the EUC benefits that claimant received constituted "regular
benefits" within the meaning of Section 599.2 of the Labor Law.
The only definition of
"regular benefits" found in the Labor Law is contained in Section
601.1(f), which defines "regular benefits" as "benefits payable
to a claimant under this article or any other State unemployment insurance law
other than extended benefits." This definition, however, is expressly
limited as being for the purposes of Section 601, only, and relates only to "extended
benefits" , but does not define "regular benefits" in the
context of the federally-legislated EUC benefits which the claimant received.
We must therefore look at other legislative provisions.
Section 101(b) of the
Emergency Unemployment Compensation Act of 1991 provides, in pertinent part,
that:
the State
agency of the State will make payments of emergency unemployment compensation
--
(1) to individuals
who --
(A) have exhausted
all rights to regular compensation under the State law,
{and}
(B) have no
rights to compensation including both regular compensation and extended
compensation...(and are not paid or entitled to be paid any additional
compensation under any State or Federal law), …
(Title I of Public Law
102-164, 105 Stat. 1049, approved November 15, 1991, as amended). (Emphasis
added). (Hereinafter referred to as the "Emergency Act").
Section 101(c) of the
Emergency Act defines:
"Exhaustion of
Benefits" --For purposes of (b)(1)(A), an individual shall be deemed to
have exhausted such individual' s rights to regular compensation under a State
law when --
1.
no payments of regular
compensation can be made under such law because such individual has
received all regular compensation available to such individual
based on employment or wages during such individual's base period, or (2) such
individual's rights to such compensation have been terminated by reason of
expiration of the benefit year with respect to which such rights existed.
(Emphasis added).
Section
106(a) (1) of the Emergency Act further provides that "the terms
'compensation', 'regular compensation', 'extended compensation', {and}
'additional compensation', ... have the respective meanings given such terms
under Section 205 of the Federal-State extended Unemployment Compensation Act
of 1970." (Title II of Public Law 91-373, 84 Stat. 695, 708, approved
August 10, 1970, as amended). (Emphasis added). (Hereinafter referred to
as the "Extended Act") .Pursuant to the regulations issued to
implement the Extended Act, as amended, the following terms are defined:
"Compensation and Unemployment compensation means cash benefits to individuals with
respect to their unemployment, and includes regular compensation {and}
additional compensation ..." {Code of Federal Regulations, Part 20,
Section 615.2(d)}.
"Regular compensation means compensation payable to an individual under a State law,
...but does not include extended compensation or additional
compensation." {Code of Federal Regulations, Part 20, section
615.2(f)}.
"Additional compensation means compensation totally financed by a State
and payable under a State law by reason of conditions of high unemployment or
by reason of other special factors ..." {Code of Federal Regulations, Part
20, section 615.2(f)}.
"Extended compensation means the extended unemployment compensation
payable to an individual for weeks of unemployment which begin in an Extended
Benefit Period, under those provisions of a State law which satisfy the
requirements of the Act and this Part with respect to the payment of extended
unemployment compensation,... Extended compensation is referred to in this
Part as Extended Benefits." {Code of Federal Regulations, Part 20, section
615.2 (9) } .
Labor
Law, section 601.2 provides for an almost identical condition with regard to a
claimant's eligibility for extended benefits, namely, the prerequisite of
exhaustion of the claimant's rights to regular benefits. Section 590.4 of the
Law further provides that the duration of benefits shall not be paid for more
than 104 effective days in any benefit year, except as provided in sections 601
and 599.2 of this chapter.
The
claimant in this case was receiving benefits under the federally-legislated
Emergency Act (also referred to herein as EUC benefits), and not under any
State law, as of November 25, 1991. Since the definition under the Emergency
Act of 1991 conditions eligibility for benefits upon exhaustion of regular
compensation, and adopts from the Extended Act the definition of regular
compensation as "compensation payable to an individual under a State
Law," it follows that these EUC benefits are not "regular
benefits" within the meaning of section 599.2. By the time claimant
applied for and was accepted in an appropriate course of training, she,
therefore, had no entitlement to "regular benefits." We therefore
conclude that she is ineligible for additional benefits under section 599.2 of
the Labor Law.
DECISION: The initial
determination of the local office is sustained.
The
decision of the administrative law judge is reversed.
COMMENT
Regular
benefits include state Unemployment Insurance (UI), Combined Wage Claims (CWC),
Unemployment compensation: for Federal Employees (UCFE) and Unemployment
compensation for Ex-servicemen (UCX).
INDEX 2060-2
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 1993
INTERPRETATION
SERVICE-BENEFIT CLAIMS
Section 599
Additional Benefits
TRAINING COURSES -MINIMUM REQIREMENTS
Effective
October 1, 1991, approvable training must consist of attendance at training for
at least twelve hours per week.
AB 413,857
By
initial determination of the local office, the claimant was denied approval for
vocational training' under section 599 of the New York Unemployment Insurance
Law because her training consisted of fewer than 12 hours per week. The
claimant requested a hearing.
The
Administrative Law Judge held hearings at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor. By
decision dated December 11, 1991 the Administrative Law Judge overruled the
initial determination.
The
Commissioner of Labor appealed the judge' s decision to the Board. In
connection with its review of the case, the Board considered the arguments
contained in the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant filed an original claim for unemployment insurance
benefits effective April 22, 1991, and was ruled eligible. Subsequently, in
September 1991, she was accepted into a nurse's aide training program. The
program began on October 1, 1991. It consists of five hours of training per
week. The claimant did not go to the Local office to request approval of her
training under the provisions of section 599 until October 1, 1991.
OPINION: The credible evidence
establishes that the claimant's training program consists of only five hours
per week. Regulations were issued by the Commissioner of Labor effective
October 1, 1991, requiring attendance at training for at least 12 hours each
week (See 12 NYCRR 482.2{b}). These regulations apply to applications for
training course approvals under section 599 of the Law made on or after October
1, 1991. Since the claimant went to the local office to request approval of her
training on October 1, 1991, the new regulations apply to her. Accordingly,
since the claimant's training consists of only five hours per week, her request
for approval under section 599 of the Law was properly denied.
DECISION: The initial
determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENT
This
requirement was established by the regulations of the Commissioner of Labor
issued effective October 1, 1991. For detailed discussion of these regulations
refer to Field Memorandum 8-91, section 599 Regulations.
INDEX 810-7
NEW YORK STATE DEPARTMENT
OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 1993
INTERPRETATION SERVICE
BENEFIT CLAIMS
REGISTRATION, REPORTING AND CERTIFICATION
Evidence of Registration, Reporting, and Certification
PEER Appointment Notice -Proof of Mailing
A
claimant's failure to report for a PEER interview scheduled by mail is not
excused, when the notice to claimant to report for the interview is properly
addressed and not returned by the Post Office, because the Department's normal
office procedures in processing, addressing and mailing computer generated mass
mailings of PEER appointment notices is presumptive evidence that a particular
claimant received mail delivery of the properly sent notice in due course. The
claimant's unsubstantiated contention that the mailed notice was not delivered
is insufficient to rebut the presumption.
AB 421,884
By
initial determination of the local office, the claimant was held ineligible to
receive benefits effective July 8, 1992 because she failed to comply with
reporting requirements. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances by the claimant and on behalf of the Commissioner of Labor. By
decision dated September 3, 1992 the Administrative Law Judge overruled the
initial determination.
The
Commissioner of labor appealed the judge's decision to the Board. A further
hearing was held before the Board, at which all parties were accorded a full
opportunity to be heard and at which testimony was taken. There was an
appearance on behalf of the Commissioner of Labor. In connection with its
review of the case, the Board considered the arguments contained in the written
statement submitted.
Based
on the record and testimony in this case, the Board makes the following:
FINDINGS OF FACT: The claimant filed an original claim for benefits effective
February 3, 1992. She received all of her benefit checks through the date of
the Administrative Law Judge hearing. The benefit checks were mailed to the
address of record with the Department of Labor.
Prior
to Wednesday night, each local unemployment insurance office enters into the
Department computer the number of interviews to be scheduled at that office for
the weekly period (Monday through Friday) that is two and one-half weeks away.
Every Wednesday night, the Data Processing section of the Department of labor
runs an automated selection computer program which picks claimants for Periodic
Eligibility and Employability Review (PEER) interviews at their respective
local offices. The number of claimants selected and the dates and times
assigned are based on the schedule which had been entered into the computer by
the local office. The program assigns a date and time to each claimant who is
selected. The program then produces on-line appointment listings which identify
the claimants selected. The list is arranged by local office and by claimant
name, Social Security number, and the date and time of the interview for each
claimant scheduled. These listings, are available on-line to the local offices
for viewing or printing on the following Friday. The program also posts the
on-line PEER record of each claimant scheduled with the date of the PEER
interview.
The
program then prints a PEER Appointment Notice (form LO 343.3X) for each claimant
scheduled. The program completes a printed form by entering the variable data,
including the local office address, information about the PEER interview
(including the location, date and time), and information about the claimant
(including name, address, Social security number and DOT code, if any). The
claimant's address on the PEER Appointment Notice comes from the Benefit
Control Record (BCR) which is the same source for the claimant's address as is
used to mail benefit checks. Finally, the program produces a report which gives
the total number of letters generated. Both the completed PEER Appointment
Notices and the report on the, number of letters are delivered to the
Department's Mail and Service on Thursday morning.
The
Mail and Service Unit runs the PEER Appointment Notices through a mechanical
device that inserts each Notice, along with an eligibility questionnaire, into
a window envelope. The device then seals the envelope. The claimant's name and
address show in the addressee window and the local office's address shows in
the return window. This unit keeps a log to assure that the number of PEER
Appointment Notice s received from the Data Processing Unit equals the number
of PEER Appointment Notices inserted into envelopes.
Following
the performance of its assigned task relative to these Notices, the Mail and
Service unit delivers them to the mail room where they are picked up that day
by the U.S. Postal Service. PEER Appointment Notices are sent first class mail.
The
Mail and Service Unit routinely notifies the Administrative Analysis Unit of
any mutilated PEER Appointment Notices that cannot be mailed. In the event that
a PEER Appointment Notice is mutilated, the Administrative analysis Unit will
pick it up from Mail and Service, type a new replacement Notice and put the
completed replacement Notice in the mail out basket for delivery to the mail
room.
On
the night of June 18, 1992, the program selected claimant to be scheduled for a
PEER appointment during the week beginning July 7, 1992. On June 18, 1992, the
number of PEER Appointment Notices processed by the Data Processing section was
the same as the number of PEER Appointment Notices processed by the Mail and
service unit. Included in that number was a Notice to the claimant in this
case. The Notice was mailed to the claimant at the same address at which
she received all of her benefit checks. The claimant's name and Social Security
number appear on the on-line appointment listing for July 8, 1992. The letter
which was sent to the claimant was not returned to the local office.
The
claimant was scheduled for an interview at her local office on July 8, 1992, at
10:30 a.m. She did not appear for the interview. She did not report to the
local office until July 27, 1992.
OPINION: The first issue which
we must address is the question of whether the claimant was properly notified
to appear for a PEER interview. There is no direct testimony to establish the
mailing of a specific PEER Appointment Notice to the claimant. In cases such as
this one, it is then incumbent upon the Commissioner of Labor to show through
competent evidence the normal office procedures with regard to the preparation
and mailing of such notices.
In
this case, the witness for the Department gave competent testimony regarding
the way in which the computer program runs to select and notify individual
claimants to report for a PEER interview. The program completes the form to
give all relevant information to identify the addressee and to advise the
addressee of when and where to report for the PEER interview. There is a method
to verify that the number of notices prepared corresponds to the number mailed
and, for the notices prepared on June 18, 1992, the numbers match. There is
also an established procedure which is followed whenever a notice is mutilated
while being inserted into the envelope. The address used was the one to which
the claimant's benefit checks were sent. There is documentary proof that the
claimant's name and Social Security number appear on the on-line appointment list
for July 8, 1992. Finally, there is evidence that the notice was not returned
by the Postal Service.
The
evidence necessary to activate the presumption that an item was mailed is proof
of an office practice and procedure in the regular course of the sender's
business, which shows that the notices have been duly addressed and mailed
(see Nassau Insurance Company v. Murray, 46 NY 2d 828). The
evidence need not rise to the quantum required in a judicial action or
proceeding so long as it constitutes reasonable evidence of mailing (see Matter
of Gonzalez, 47 NY 2d 922, rev'g the decision of the Appellate
Division, Third Department, filed February 9, 1978, unreported, aff'g Appeal
Board 229,143). In the case at hand, the Commissioner of Labor has satisfied these
requirements. All of the evidence presented on behalf of the Commissioner of
Labor, pertaining to the procedures for printing and mailing of appointment
letters, are exceptions to the general rule against admission of hearsay
evidence because they are documents produced in the ordinary course of the
business of the Department of Labor. The testimony as to procedure is competent
evidence of the usual course of conduct of the Department in arranging the PEER
appointments. As such, a decision of this Board may be based upon this
evidence. Accordingly, we conclude that a PEER Appointment Notice for July 8,
1992 was properly mailed to the claimant at her correct address (see Matter
of Askew, 50 AD 2d 647, aff'g Appeal Board 195,233).
The
Administrative Law Judge found in his decision that the PEER Appointment Notice
in question had been sent, but not delivered. Because we have also found that
the Notice was mailed, it is likewise necessary for us to determine whether the
notice was delivered. The Courts have traditionally recognized a presumption of
delivery. Once a letter is found to have been properly addressed and mailed,
there is a presumption that the letter has been delivered in due course
(see News syndicate v. Gatti Paper Stock Corp., 256
N.Y. 211). If the letter was sent, then the presumption of delivery applies and
can only be rebutted by substantial evidence (see People v. Langan, 303
N.Y. 474).
In
this case, the claimant stated that she did not receive the appointment notice.
Although the claimant requested, in writing, an adjournment of the further
hearing held before the Board, we found no valid reason for the adjournment.
The claimant merely stated in her letter to the Board that she could not
comprehend the subject of the further hearing and wanted more detailed
information sent to her. The Notice of Hearing states that the purpose of the
hearing was: "To receive additional testimony and evidence on the issues
in this case, including the practices and procedures of the Department of Labor
regarding the scheduling of Periodic Employment and Eligibility Review
reporting requirements and regarding how claimants are advised of those PEER
appointments". We were of the opinion that this stated purpose of hearing
is sufficient notice for the claimant to be able to prepare. Therefore, her
adjournment request was denied, and she was notified of the denial prior to the
commencement of the hearing. It was then incumbent upon the claimant to appear
at the hearing to explain further why the stated purpose of the hearing was
insufficient to enable her to prepare for the hearing. Having been specifically
advised that the request for an adjournment had been denied, claimant could not
simply rely on the written application for an adjournment. Although notified of
the time and place of the further hearing held before the Board, as well as an
explanation of the purpose of the hearing, the claimant did not appear at that
hearing to renew her request in further detail or with greater specificity. We,
therefore, conclude that the claimant was afforded the opportunity to rebut the
evidence presented by the Department of Labor and that she did not avail
herself of the opportunity.
The
Claimant has denied receipt of the PEER Appointment Notice. We note that she
testified at the hearing before the Administrative Law Judge that she had
received all of her benefit checks up to the date of the hearing before the
Administrative Law Judge. Testimony as to the procedure utilized by the
Department of Labor included details on the PEER reporting system's utilization
of the Benefit Control Record as the source for the claimants' addresses on the
appointment letters. Those same records are used for the issuance of benefit
checks. Accordingly, we find that denial of receipt of the PEER Appointment
Notice to be insufficient to overcome the presumption of regularity regarding
the delivery of mail properly sent (see Matter of Askew,
supra) Therefore, we conclude that the PEER Appointment Notice was
received by the claimant.
The
evidence establishes that the claimant was properly notified to report for a
PEER interview. She failed to do so for her own reasons, which are not known to
this Board. Accordingly, the claimant's failure to report for the interview
cannot be excused. We, therefore, conclude that she is, ineligible to receive
benefits for the period in issue.
DECISION: The initial
determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
1)
The Appeal Board addressed the question of whether the claimant was properly
notified to appear for a PEER interview. In the absence of direct testimony to
establish the mailing of a specific PEER Appointment Notice, the Board held
that it is incumbent upon the Commissioner of Labor to show through competent
evidence the normal office procedures with regard to the preparation and
mailing of such notices. This evidence included the following:
a)
Copy of the PEER Appointment Notice (LO 343.3X).
b)
The on-line appointment listing for the appointment date (US 2401 or US 2402)
on which the claimant's name and appointment time is listed.
c)
Claimant's PEER record showing the PEER appointment date and the claimant's
address.
d) A
statement from the Community Service Center/ Local Office that the letter was
not returned as undeliverable.
e) An
affidavit from the Administrative Analysis Section as to the printing and
mailing of the PEER Appointment Notices.
f)
Reports from the Administrative Analysis Section and the Mail and Service Unit
in Albany regarding the printing and mailing of such notices.
The
first four items are available to Community Service Center personnel and should
be examined in making a determination. They must be provided at the time a case
is processed for hearing. A copy of the affidavit from administrative analysis
should be provided to claimants upon request. Any irregularities in mailing
will be reported to the Community Services Division offices by the
Administrative Analysis section.
2)
Once a letter is found to have been properly addressed and mailed, there is a
presumption that the letter has been delivered in due course. If the letter was
sent, then the presumption of delivery applies and can only be rebutted by
substantial evidence.
3)
Presumptive evidence is, by definition, evidence which can be refuted. The
Appeal Board held mere denial of receipt of the PEER appointment notice is
insufficient to overcome the presumption of regularity of the delivery of mail
properly sent. If the claimant presents substantial evidence of difficulty with
receipt of mail (i.e. , prior complaints about non-receipt of benefit
checks), this presumption will not prevail. Therefore, it is important that if
a claimant alleges problems with receiving mail, he/she be asked for specific
details of such problems including whether a report was ever made to the
community Service Center or Post Office. Such complaints are made via a U.S.
Postal Service Consumer Service Card (P.S. Form 4314C). The Postal Service
Consumer receives a copy of this complaint. Claimant should be requested to
produce such as evidence of a complaint made prior to the alleged failure to
receive the PEER Appointment Notice. In general, in the absence of such
evidence the presumption has not been rebutted and the failure to report for
the PEER interview usually should not be excused.
4)
This case replaces the rule listed in the Interpretation Service Index at
810-7. This A-750 replaces A-750-2028 which should be marked obsolete.
INDEX 1635A-5
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
SEPTEMBER 1993
INTERPRETATION SERVICE
BENEFIT CLAIMS
VOLUNTARY SEPARATION
Domestic Reasons
Children, Care of
CHILDCARE ALTERNATIVES TO RESIGNATION
Voluntary
leaving of employment to stay home and provide childcare is without good cause
when claimant fails to pursue available alternatives offered by the employer
(i.e., a change in hours or a leave of absence).
AB 414,684
By
initial determination of the local office, the claimant was held eligible to
receive benefits without any disqualifying conditions effective June 15, 1991.
The employer requested a hearing contending that the claimant should be
disqualified from receiving benefits because of a voluntary leaving of
employment without good cause.
The
Administrative Law Judge held hearings at which testimony was taken. There were
appearances on behalf of the employer. By decision dated, January 21, 1992 (ALJ
Case #091-38889), the Administrative Law Judge sustained the initial
determination.
The
Board, on its own motion pursuant to section 620.3 of the Labor Law, has
determined to reopen and reconsider the decision of the Administrative Law
Judge.
A
further telephone hearing was held before the Board, at which all parties were
accorded a full opportunity to be heard and at which testimony was taken. There
were appearances on behalf of the employer.
Now,
based on the entire record and on all of the proceedings heretofore had herein,
the Board makes the following
FINDINGS OF FACT: The claimant, a front desk clerk, worked for a hotel for
approximately three years until she resigned her employment on June 14, 1991.
The claimant worked the night shift, from 11 p.m. until 7:30 a.m. On or about
June 12, 1991, the claimant told the assistant manager that she was thinking
about leaving her job because she had child care problems for her infant
daughter. The claimant was offered the option to request a leave of absence or
a change of hours in lieu of resigning her job. Later that week she resigned
her employment, saying that she wanted to stay home with her daughter.
OPINION: The credible evidence
now before the Board establishes that the claimant resigned her employment on
June 14, 1991 because she wanted to stay home and care for her daughter. The
claimant was offered the opportunity to request leave time or even a change in
her schedule until her child care problems were resolved, which she declined,
for reasons test known to herself. Therefore, claimant did not take
reasonable or prudent steps to protect her employment. Accordingly, the
claimant left her employment for personal, non-compelling reasons and without
good cause and is therefore disqualified from receiving Unemployment Insurance
benefits.
DECISION: The initial
determination of the local office is overruled.
The
employer's objection that the claimant voluntarily left her employment without
good cause is sustained. The claimant is disqualified from receiving benefits
effective June 15, 1991, until she has worked in employment on not less than
three days in each of five weeks and earned remuneration at least five times
her benefit rate. Self employment and earnings therefrom will not
count.
The
decision of the Administrative Law Judge is reversed.
COMMENT
Whenever
a claimant withdraws from the labor market for any reason, including childcare
obligations, an issue of availability exists and must be resolved.
INDEX 1152-7
1110-18
1655-10
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
OCTOBER 1993
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Drugs
Absence and Lateness
VOLUNTARY SEPARATION
Health
ABSENT DUE TO DRUG REHABILITATION
1.
Claimant was discharged when he notified his employer of his admittance to a
hospital for drug rehabilitation sometime after being admitted. Claimant's
absenteeism is not excused because it was caused by his admittance to a drug
abuse rehabilitation program inasmuch as his drug abuse problem was a
foreseeable result of his use of an illegal substance.
2.
After reemployment, it was not good cause for claimant to voluntarily leave his
job in order to avoid the location near the worksite where alleged drugs were
available for purchase.
AB 409,188
By
initial determinations of the local office, the claimant was disqualified from
receiving benefits because of a loss of employment through misconduct in
connection therewith effective March 1, 1991, or, in the alternative, because
of a voluntary leaving of employment without good cause Effective March 1,
1991; was disqualified from receiving benefits because of a voluntary leaving
of employment without good cause effective April 16, 1991; and disqualified
from receiving benefits because of a refusal of suitable employment without
good cause effective April 16, 1991; and held ineligible to receive benefits
because claimant was not available for employment effective April 1, 1991,
only. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the employer. By decision dated
May 28, 1991, the Administrative Law Judge sustained the initial determination
holding the claimant ineligible to receive benefits effective April 1, 1991,
only, because he was not capable of employment and overruled all of the
remaining initial determinations.
The
Commissioner of Labor appealed the judge's decision to the Board, insofar as
the judge overruled the alternative initial determination of misconduct in
connection with employment and voluntary leaving of employment without good
cause effective March 1, 1991 and insofar as the judge overruled the initial determination
of voluntary leaving of employment without good cause effective April 16, 1991.
In connection with its review of the case, the Board considered the arguments
contained in the written statement submitted.
A
further hearing was held before the Board, at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked as a driver for a private sanitation company
for over four years until March 1, 1991. Prior to commencing this employment
the claimant had undergone treatment for drug abuse on two occasions. On March
1, 1991, claimant entered a hospital to undergo further treatment for drug
abuse. The employer was aware of the claimant's drug problem. While the
claimant was in the hospital, the employer was notified by the hospital staff
that he had been admitted there. When the claimant personally informed the
employer of his whereabouts, he was notified of his discharge.
On
April 12, 1991, the claimant became aware that the employer had work available.
He returned to work there. He worked on April 13, 15, and 16. On April 16,
1991, he completed his last assignment for the day. He was due back in the
office shortly thereafter, but he did not return on that day. The claimant used
cocaine that was offered to him at a location near to his job. He did not
contact the employer or report back to his job. The claimant had been advised
by doctors and other specialists at the treatment center that he should avoid
the locations in which was most likely to have access to illegal
drugs. During the course of his employment, claimant had often bought drugs
near the location of the employer's operation.
OPINION: The credible evidence
establishes that the claimant's first phase of employment ended when he was
discharged upon informing the employer of his admittance to a drug abuse
rehabilitation program. Although there was a clear need for the claimant to
have undergone treatment we also note that his drug abuse problem was a
foreseeable result of his use of an illegal substance. Under these
circumstances, we conclude that his loss of employment is due to misconduct in
connection therewith. (See Matter of Kuehn, 174 AD 2d
776, aff'g Appeal Board no. 398,533A).
The
credible evidence also establishes that the claimant voluntarily left his job
when he decided not to report back to the location of his employment on April
16, 1991, and thereafter failed to contact his former employer. Even accepting
the claimant's testimony that he was offered cocaine near to his job, used, and
had a relapse, his own voluntary, illegal use of drugs whether on April 16,
1991, or on the very first occasion that he had used an illegal substance,
resulted in the foreseeable consequence of a drug abuse problem. The claimant's
desire to avoid the location of his employer's establishment may be
understandable, but we do not find good cause for purposes of entitlement to
unemployment benefits where his voluntary use of an illegal substance was the
cause of his problem. Accordingly, we conclude that the claimant voluntarily
left his employment without good cause and is therefore, disqualified from
receiving benefits effective April 16, 1991.
In
view of the fact that we have ruled that the claimant is disqualified from
receiving benefits because he voluntarily quit his job effective April 16,
1991, it is not necessary that we rule on the issue of refusal of employment
without good cause effective the same day.
DECISION: The initial
determinations of misconduct in connection with employment, effective March,
1991, and of voluntary leaving of employment without good cause effective April
16, 1991, are sustained.
The
decision of the Administrative Law Judge, insofar as appealed from, is
reversed.
COMMENT
Matter of Kuehn, 174 AD 2d 776, affirming AB 398,533A was reported as A-750-2030.
Index No. 795-16
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
November 1993
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Other Causes of Unavailability
AVAILABILITY – ALIENS
A
claimant, who is an alien legally present in the United States with a visa
authorizing her to work, but only for a specific employer, is not able and
available to work when laid off from that employment. Under her visa, she could
not legally accept an offer for immediate employment with a different employer.
AB 417,640
By
initial determination of the local office, the claimant was held ineligible to receive
benefits effective August 5, 1991 because claimant was not available for
employment. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances by the claimant and on behalf of the Commissioner of Labor. By
decision dated April 10, 1992, the Administrative Law Judge overruled the
initial determination.
The
Commissioner of Labor appealed the judge’s decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in
the written statement submitted on behalf of the Commissioner of Labor.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant, a ballet dancer, is an alien. During the period in
issue, she had an H-1 visa, permitting her to work in the United States, but
only for ABT, a ballet company which was her only base period employer.
The
claimant was laid off at the end of the company’s season, and filed a claim for
benefits effective August 5, 1991.
OPINION: United States
Department of Labor Unemployment Insurance Program Letter No. 1-86 clarifies
the Department’s position regarding Section 3304(a)(14)(A) of the Federal
Unemployment Tax Act. See 26 U.S.C. 3304. See also Labor
Law, Section 590.0 and 591.2. The Program Letter provides that aliens must
satisfy two requirements in order to be deemed eligible to receive benefits.
First,
the wage credits used to establish a valid claim must be earned while an alien
is legally authorized to work in the United States. Second, the person must be
"able and available" to work; in this regard, the unemployed alien
must be legally authorized to work in the United States to be considered
available for employment.
The
claimant’s base period earnings record is not in dispute; it is clear that her
visa permitted her to work in this country, and her weeks of employment by ABT,
and her earnings, were properly counted in determining her eligibility.
The
evidence also establishes, however, that during the period for which she claimed
benefits the claimant was unable to legally work for any employer other than
ABT. While it may have been possible for her to obtain permission from the
Immigration and Naturalization Service to work for other employers, she did not
have such permission and could not legally accept an offer for immediate
employment.
Therefore,
the claimant may not be deemed to be available for employment because during
the period in issue she lacked proper authorization permitting her to work for
any employer other than ABT.
Accordingly,
we conclude that the claimant was not eligible to receive benefits during the
period in issue.
DECISION: The initial
determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- For a detailed discussion of this subject see A-710-52
(Revised) Alien Claimants.
- This is one of a series of cases similarly decided by
the Appeal Board. In AB 396,713, the Board reached a similar conclusion
when the period claimant was seeking benefits was "A short hiatus in
the company’s performances."
Index No. 1505 D-4
1505 E-6
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 1993
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISREPRESENTATION AND REDETERMINATION
Relationship to Benefit Rights
Other Considerations
WILFUL MISREPRESENTATION – BENEFIT CHECK
Claimant’s
action in signing the back of the benefit check and then cashing it constitutes
a wilful false statement when claimant knew she was not entitled to
receive the benefits.
AB 396,995
By
initial determination of the local office, the claimant was disqualified from
receiving benefits because of a loss of employment through misconduct in
connection therewith effective April 15, 1989; and charged with a recoverable
overpayment of $1,368.00 in benefits. By further initial determination issued
effective June 5, 1989, the claimant was held ineligible to receive benefits
because claimant was not totally unemployed; and claimant’s right to future
benefits was reduced by eight effective days because claimant wilfully made
a false statement. The claimant requested a hearing.
The
Administrative Law Judge held hearings at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There was an
appearance by the claimant and on behalf of employer and of the Commissioner of
Labor. By decision dated November 8, 1990 the Administrative Law Judge
overruled the misconduct and wilful misrepresentation determinations,
sustained the lack of total unemployment determination and reduced the
overpayment determination from $1,368.00 to $456.00
The
Commission of Labor and the employer appealed the judge’s decision to the Board
insofar as it overruled the misconduct and wilful misrepresentation
determinations and insofar as it modified the overpayment determination. In
connection with its review of the case, the Board considered the arguments
contained in the written statements submitted.
No
appeal has been taken from that portion of the judge’s decision that sustained
the determination holding the claimant ineligible effective June 5, 1989,
because she was not totally unemployed.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed at a hospital as a special security
officer for three and a half years until April 14, 1989. On that day, the claimant
left her post in order to attend to an urgent personal matter. She knew that
ordinarily she must obtain authorization to leave her post, and she tried to do
that on this occasion. She called her office for up to 15 minutes but the
telephone was not answered. The dispatcher was unable to reach the claimant’s
supervisor. The claimant could wait no more, so she left her post for the few
minutes that were necessary to deal with her problem.
While
she was returning to her post, the claimant heard a commotion, which sounded
like people fighting. She went to investigate and was assaulted by an
individual who was involved in the altercation.
She
called the hospital dispatcher for assistance, but the dispatcher was unable to
reach the claimant’s supervisor or other security officers. The claimant then
called the police. When the claimant’s supervisor finally arrived in the
dispatcher’s office, the claimant told him that she had already called for
police assistance.
Later
that same day, the claimant was instructed by her supervisor, who was a
Sergeant, to submit to a blood test. The claimant was prepared to comply with
the directive until she was informed by another Sergeant, who belonged to her
union, that under the circumstances which had occurred that day, she was not
obliged to take the test. The claimant then refused to take the blood test. The
claimant then refused to take the blood test.
The
claimant was suspended on April 17 without pay because of the April 14
incidents. During her disciplinary suspension, the claimant was not paid for
the period April 17 through June 4, 1989. Formal charges were brought against
the claimant which her union grieved on her behalf. After a
disciplinary hearing, the claimant was found guilty of ten charges of
misconduct and her immediate termination was recommended. The grievance then
proceeded to arbitration.
The
claimant filed an original claim for benefits effective May 1, 1989, and was
held eligible. Thereafter, she received $1,368.00 in benefits before her claim
was redetermined and she was disqualified.
The
arbitration was resolved by an agreement dated October 3, 1989, in which the
claimant pled guilty to four charges:
First,
that she abandoned her post without authorization. Second, that she
called for police assistance without authorization. Third, that she was
insubordinate by refusing to obey an order to submit to a blood test. The
claimant also pled guilty to a charge that on April 25, 1988, she had engaged
in conduct unbecoming an employee by using profanity in addressing her superior
officer.
The
claimant agreed to accept an eight-week suspension in order to end the dispute
and return to work. She was restored to the payroll in a non-work status
effective June 5, 1989, and was fully reinstated and returned to duty on
October 10, 1989.
After
the claimant was restored to the payroll, she received a benefit check for
$456.00 for the weeks ending June 11 and June 18, 1989. The claimant signed and
cashed the check.
OPINION: The credible evidence
establishes, through the claimant’s admissions in the stipulated settlement of
her grievance, that on April 14, 1989 she left her post without first obtaining
authorization to do so, and that later the same evening she telephoned for
police assistance after becoming involved in an altercation during which she
was assaulted. She did not obtain authorization to call for police assistance,
although she knew that she also was required to that before making such a call.
The
claimant tried to communicate with a supervisor before leaving her post, and
later, before telephoning for police assistance after she was assaulted. The
hospital dispatcher was unable to reach a supervisor, leaving the claimant no
reasonable alternative to attending promptly to the matters at hand in each
instance. We conclude, therefore, that the claimant’s acting as she did on each
occasion did not constitute misconduct under the Unemployment Insurance Law.
The
credible evidence also establishes that the claimant refused to provide a
specimen for a blood test later that evening. Although the claimant’s
supervisor directed her to provide the sample, the claimant was understandably
confused when another Sergeant intervened and told her that she was not
required to obey the order. We conclude that under these peculiar circumstances,
the claimant’s refusal did not rise to the level of misconduct.
The
credible evidence establishes in addition that fully one year earlier, the
claimant used profanity in addressing a superior officer. Inasmuch as
discipline was not imposed for that independent occurrence over the course of a
year, we cannot conclude that it was a material element in the claimant’s
suspension in 1989. Accordingly, she should not be disqualified for that
offense.
As we
have concluded that the claimant is eligible to receive benefits, she is
entitled to the $912.00 that she received for the period prior to being
restored to her employer’s payroll. The claimant does not dispute the
determination that she was not entitled to benefits after being restored to the
payroll on June 4, 1989, and has not appealed from that portion of the judge’s
decision that sustained the determination that she was not entitled to
unemployment insurance benefits for the weeks ending June 11 and June 18.
With
respect to the issue of wilful misrepresentation to obtain benefits,
the claimant, by her own admission, knew that she was not eligible to receive
benefits after she was restored to her employer’s payroll effective June 4. In
effect, when she signed the back of the benefit check for that and the
following week, and then cashed it, she certified for benefits that she knew
she was not entitled to receive. That act constitutes a wilful misrepresentation.
Accordingly, we conclude that the forfeiture penalty of eight effective days
was properly imposed.
DECISION: The initial
determination disqualifying the claimant because she lost her employment
through misconduct is overruled.
The
initial determination that the claimant made a wilful misrepresentation
to obtain benefits, and imposing a forfeiture penalty of eight effective days,
is sustained.
The
initial determination that the claimant received an overpayment of $1,368 in
benefits is modified to reflect and overpayment of $456 in benefits, and as so
modified, is sustained.
The
decision of the Administrative Law Judge, insofar as appealed from, is modified
accordingly, and as so modified, is affirmed.
COMMENTS
- The back of the benefit check now contains the
following certification:
I
certify that on each day during the period(s) shown on the front of this check
I did not work in employment or self-employment and I was ready, willing and
able to work except as reported to the local office. I informed the local
office of all job offers, any refusal of job offers and of any vacation,
holiday, pension or retirement pay due or received. I did not claim benefits
for any part of this period(s) under any State or Federal Unemployment
Insurance Law.
Signature,
Date
- Of course, prior to using the statement on the back of
the check, every effort should be made to locate the certification
document. If such is not available then, after obtaining a copy of the
check for the week at issue, the certification on the back can be the
basis for the wilful misrepresentation.
- The date of the wilful misrepresentation is
the date claimant cashed and signed the check, which appears next to
claimant’s signature. If this date cannot be established by an
examination of the check, the day before the Bank Batch date on the
Benefit Ledger Transcript should be used. This date is the first five
digits of the Bank Batch number.
Index No. 1540-2
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 1993
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISREPRESENTATION AND REDETERMINATION
Refusal of Employment
WILFUL MISREPRESENTATION
Claimant’s
negative response on the certification coupon to the specific question,
"Did you refuse any job offer or job referral?", constitutes
a wilful false statement to obtain benefits, when in fact claimant
did refuse a job offer or job referral.
AB 422,157A
The
Board, on its own motion pursuant to Section 534 of the Law, hereby reopens for
reconsideration its prior decision which was mailed and filed on July 9, 1992,
(Appeal Board No. 415,874), which affirmed the decision of the Administrative
Law Judge filed February 6, 1992, which sustained the timeliness objection
imposed by the Commissioner of Labor and continued in effect the initial
determination by which the claimant was disqualified from receiving benefits
because of a refusal of suitable employment without good cause effective
October 18, 1991; and charged with a recoverable overpayment of $217.25 in
benefits; and claimant’s right to future benefits was reduced by 16 effective
days because claimant wilfully made false statements to obtain
benefits.
Upon
due consideration of the entire record, and
Due
deliberation having been had,
Now,
therefore, based on the entire record and testimony in this case, and on all of
the proceedings heretofore and herein, the Board makes the following:
FINDINGS OF FACT: The claimant, a substitute teacher, was offered employment in
such capacity for October 18 and October 25, 1991. She refused these offers
because she wanted to be available for full-time employment and because she was
unsure of the effect that acceptance of such offers would have on her
eligibility for unemployment insurance benefits.
The
claimant received benefits amounting to $217.25. On her benefit certification
coupons for the weeks ending October 20 and 27, 1991, the claimant certified
that she had not refused any offer or employment.
The
claimant received an initial determination shortly after November 27, 1991, but
the record does not establish whether or not such determination contained
instructions concerning a request for a hearing or the time limit within which
to request a hearing. The claimant requested a hearing by written
correspondence postmarked December 30, 1991.
OPINION: The credible evidence
shows that the claimant refused employment for two days in October because she
wanted to be available for full-time employment and because she was unsure of
the effect that per diem employment would have on her eligibility for
unemployment under the law. She was therefore overpaid $217.25 in benefits
which the Commissioner of Labor has a right of action to recover pursuant to
Section 597.4 of the Law.
Also,
the claimant’s certifications that she had not refused employment on the days
in issue constitute wilful false statements made to obtain benefits.
She knew that she had refused the offers of employment, and her uncertainty as
to the effect on per diem work on her eligibility for benefits is immaterial to
this issue.
In
consideration of our ruling on the aforementioned issue, and in light of the
insufficient evidence that the claimant received a determination in the mail
which informed her of the right to request a hearing, and of the time limit in
which to request a hearing, we will overrule the timeliness objection. The only
determination admitted for the record was a computer-generated sheet which does
not contain any instructions regarding a hearing.
DECISION: The decision of the
Board filed on July 9, 1992 (Appeal Board No. 415,874), is hereby rescinded.
The
timeliness objection is overruled.
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
- The Appeal Board’s decision in this case eliminates the
necessity of finding other additional evidence indicating claimant’s
knowledge of the falsity or willfulness. This is because the current
certification format asks the claimant a specific question about refusal
of employment. A discussion on this topic is contained in Field Memorandum
4-91 entitled Wilful Misrepresentation Re: Refusal and the
New Certification format.
- This rule replaces A-750-1691 reported
at 1540-2 which should be marked obsolete.
Index No. 1160-8
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 1994
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Insubordination
INSUBORDINATION –
VULGARITY
Vulgarity
directed toward a supervisor to express defiance, as opposed to an uncalculated
remark made under stress, a misconduct.
AB 427,946
By
initial determination of the local office, the claimant was disqualified from
receiving benefits effective January 1, 1993 because of a loss of employment
through misconduct in connection therewith. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances by the claimant and on behalf of the employer. By decision dated
March 23, 1993, the Administrative Law Judge overruled the initial
determination.
The
employer and the Commissioner of Labor appealed the judge’s decision to the
Board. In connection with its review of the case, the Board considered the
arguments contained in the written statements submitted on behalf of the
employer and of the Commissioner of Labor.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked as a waiter and set-up man in a hotel
restaurant for about two years until December 31, 1992. On New Year’s Eve, the
claimant was on duty as a waiter. As it was a very busy night, at about 2 AM,
the claimant’s supervisor asked a group of waiters, including the claimant, to
rack glasses. The claimant became irritated because he believed the set-up crew
was not performing their duties. The claimant raised his voice and argued with
the supervisor who, after unsuccessfully trying to calm him, told him to go
home. The supervisor intended to discuss this matter with the claimant at
another time. When the claimant continued to argue, the supervisor called
security personnel.
When
security personnel arrived, the claimant felt embarrassed in front of his
co-workers. As he left the premises, he called the supervisor a "fucking
asshole". The claimant was discharged for his use of foul language towards
the supervisor. The claimant had received the employer’s handbook outlining
that an employee directing vulgar language towards a supervisor is subject to
summary dismissal.
OPINION: The credible evidence
establishes that the claimant was discharged for addressing his supervisor with
vulgarity after that supervisor had ordered him to leave the premises. The
supervisor’s request for the claimant to rack glasses, during a very busy night
at the restaurant, was reasonable, as was the supervisor’s direction for the
claimant to go home after unsuccessfully trying to calm him down.
We do
not agree with the Administrative Law Judge’s conclusion that the decision in
this case is governed by the Matter of Marquez, 107 AD 2d
959, rev’g Appeal Board No. 345,077. There, in the midst of an
argument over alleged errors in the claimant’s work, the claimant’s supervisor
said, "What the hell are you talking about?" The claimant then
replied, "I am not going to take this shit from you
anymore". The Court found that the claimant’s remarks were
"uncalculated and made under stressful circumstances", and that she
could not have realized or expected that her conduct would provoke her
discharge. In the case at hand, the claimant had already been instructed to
leave. His remark to the supervisor was calculated to indicate his defiance. He
also had received the company handbook which stated the employer’s policy on
vulgarity uttered towards a supervisor. Under the circumstances, we conclude
that the claimant lost his employment through misconduct.
DECISION: The initial
determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENT
Unlike
an uncalculated remark containing vulgar language which is made under stressful
conditions, a vulgarity, directed toward a supervisor to express defiance after
being warned such behavior could result in discharge is insubordinate
misconduct.
INDEX 1420-15
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE
April 1994
INTERPRETATION
SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Self-employment
EXPLORING SELF-EMPLOYMENT
Although
exploring the possibility of opening a business, a claimant is totally
unemployed provided there is no financial commitment to the business venture
nor is substantial time or effort devoted to preparing for it.
AB 423,599
By
initial determinations of the local office, the claimant was held ineligible to
receive benefits because claimant was not totally unemployed effective March 17
through June 10, 1992; and charged with a recoverable overpayment of $1,369 in
benefits. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor. By
decision dated November 10, 1992 the Administrative Law Judge sustained the
initial determinations.
The
claimant appealed the judge's decision to the Board.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant, who had previously worked as a landscaper, filed
an original claim for benefits effective October, 1991. He was found eligible
without any disqualifying conditions and received benefits at the weekly rate
of $296. Between the period of March 17 through June 10, 1992, the claimant
began exploring the possibility of opening and operating a sports
bar/restaurant. During this period, the claimant spent approximately 20-30
minutes on several days speaking to a potential investor. The claimant also
sporadically looked at and priced restaurant equipment. The claimant did not
engage in any other preparatory work such as consulting with an attorney,
entering into contracts, signing a lease, opening a checking account,
advertising or making financial commitments towards the furtherance of the
business venture. After making his initial inquiries, the claimant abandoned
the idea. Throughout this period, claimant was also looking for work in his
regular field.
OPINION: The credible evidence
establishes that claimant was totally unemployed during the period in issue
herein. Although the claimant was interested in becoming self-employed, the
actions taken by the claimant were merely to explore the possibility of opening
a business. Significantly, the claimant did not devote substantial time and
effort engaging in preparatory activities necessary to becoming self-employed.
Furthermore, he continued searching for work in other areas during this period
and made no financial commitments towards the furtherance of the business
venture. Accordingly, we find that the minimal work and inquiries the claimant
made towards his plans to become self-employed did not go beyond the exploratory
stage. Therefore, the claimant was totally unemployed and is entitled to the
benefits he received.
DECISION: The initial
determinations of the local office are overruled.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- This rule is consistent with the holding reported in
A-750-1708 that a claimant is not totally unemployed while preparing for
the commencement of business. In that case, claimant had signed a lease
and purchased equipment. In the instant case claimant had made no
financial commitment and his activities in exploring self-employment were
sporadic in nature.
- The issue of availability must always be considered
when a claimant is exploring self-employment. A claimant who restricts
himself solely to seeking self-employment is not available for work. In
the instant case the Appeal Board found claimant was looking for work in
his regular field. In evaluating such a contention we should consider
claimant's opportunity for work in his regular field, knowledge of the means
of seeking employment and other pertinent considerations.
Index No. 1420-16
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 1994
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
TOTAL OR PARTIAL UNEMPLOYMENT
Self-Employment
ESTABLISHING A BUSINESS VENTURE
A
claimant lacks total unemployment during the period he/she is performing
substantial activities, including efforts to obtain the licenses necessary to
establish a business and committing money to the venture.
AB 413,557
By
initial determination of the local office, the claimant was held ineligible to
receive benefits because claimant was not totally unemployed effective October
30, 1989 through April 8, 1990; and charged with a recoverable overpayment of
$5,390 in benefits; and claimant’s right to future benefits was reduced by 108
effective days because claimant wilfully made false statements to
obtain benefits; held ineligible to receive benefits because claimant was not
totally unemployed effective November 5, 1990 through April 21, 1991; and
charged with a recoverable overpayment of $5,740 in benefits; and claimant’s
right to future benefits was reduced by 92 effective days because
claimant wilfully made false statements to obtain benefits. The
claimant requested a hearing.
The
Administrative Law Judge held a hearing at which testimony was taken. There
were appearances on behalf of the claimant and of the Commissioner of Labor. By
decision dated November 21, 1991 the Administrative Law Judge overruled the
initial determinations.
The
Commissioner of Labor appealed the judge’s decision to the Board. In connection
with the review of the case, the Board considered the arguments contained in
the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was laid off from her job as ambulette driver,
and filed an original claim for benefits effective October 30, 1989. The
claimant received $5,390 in benefits following the filing of this unemployment
insurance claim, and she certified that for each week that she received
benefits, she had done no work in employment or self-employment. She was
approached by an individual, who had done business with the claimant’s
employer, regarding the possibility of going into the ambulette business.
They filed a certificate of partnership on November 13, 1989.
In
order to operate the ambulette service, the partners had to obtain
licenses from the New York State Departments of Transportation, Motor Vehicles
and social Services, approval from the last-mentioned agency necessary in order
to obtain a provider number for Medicaid reimbursement. A bank account was
opened, and $4,000 was deposited into the account. Both partners had the
authority to sign checks on the account.
The
claimant and her partner made telephone calls and visits to government
agencies, and they prepared and filed the necessary documents with which to
obtain the licenses. They also took physical examinations necessary for the
issuance of the licenses, and they took driving safety courses. From her five
years of work in the ambulette business the claimant had acquired
expertise in the field which her partner did not possess. The claimant also
contributed out-of-pocket monies for business purposes, for which she was
reimbursed by checks from the business account.
The
claimant returned to work for three months for her former employer in the
summer of 1990, after which she filed for benefits again in November 1990. The
claimant received $5,740 in benefits in connection with her claim in November
1990, and she certified that during each week for which she received benefits
she had done no work in employment or self-employment. By November 1990, all of
the necessary licenses had been obtained. Beginning in November 1990, the
claimant and her partner ordered business cards, wrote checks,
acquired vans, purchased insurance and prepared advertising and promotional
letters in anticipation of opening for business. For 1990, the claimant claimed
losses from the ambulette business on her personal income tax return.
The ambulette service opened for business in April 1991.
The
determinations holding the claimant ineligible for the period beginning October
30, 1989, charging her with a recoverable overpayment of $5,390 and imposing
the forfeit penalty of the 108 days was issued on July 29, 1991.
OPINION: Pursuant to Section
597.3 of the Labor Law, in order for the Commissioner of Labor to review a
determination concerning a claim for benefits as a result of new or corrected information
more than a year following the issuance of such determination, there must be
fraud or wilful misrepresentation. As the redetermination in this
case took place more than a year after the claimant had received benefits for
the period from October 30, 1989 through April 8, 1990, we must first decide if
there was fraud or wilful misrepresentation.
The
credible evidence establishes that the claimant and her partner had, in the
weeks immediately following the filing of the earlier of the two unemployment
insurance claims which are in issue, embarked upon establishing an ambulette business.
They applied for the necessary licenses after filing the partnership
certificate. The claimant performed necessary tasks in furtherance of the
business objective. A business name was selected and a bank account was opened.
The claimant’s expertise in the field was important to the establishment of the
business. She was clearly acting in furtherance of the partnership objective
throughout the period in issue. We find that her activities during the period
from October 30, 1989 through April 8, 1990 were so concerted that they should
have generated an awareness in her that her certifications to the
local office were misrepresentations of reality. Accordingly, we find that the
claimant wilfully misrepresented to the local office that she was
totally unemployed between October 30, 1989 and April 8, 1990, and that the
local office, therefore, had the authority to redetermine the claim
even at such a late date.
The
claimant’s substantial activities toward the establishment of the business
render her ineligible to receive benefits for this period because she was not
totally unemployed. The benefits which she received constitute an overpayment
which the Commissioner of Labor has a right of action to recover, pursuant to
Section 597.4 of the Labor Law. The forfeit penalty of 108 effective days was
correctly imposed with the regard to the wilfully false
certifications cited above.
Insofar
as the later period under review is concerned, the credible evidence
establishes that the claimant was even more heavily engaged in activities
directly connected to the imminent operation of the business. The purchase of
insurance, supplies and equipment and the creation and dissemination of
advertising for the business occupied much of the claimant’s time during the
period of the second claim. The claimant’s tax return for 1990 sets forth
certain losses incurred by the claimant in establishing the business. It
follows, therefore, that she was not totally unemployed for the period from
November 5, 1990 through April21, 1991.
She
was overpaid the benefits which she received for this period, and the
Commissioner has a right of action to recover such monies. The claimant, by
certifying that during these periods she was not engaged in self-employment,
made wilful false statements to obtain benefits. The forfeit penalty
of 92 effective days was correctly imposed.
DECISION: The initial
determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- In this case the Appeal Board found claimant to lack
total unemployment even though during the earlier period involved the
business could not have commenced because the licenses were still pending.
The combination of the activities to get the licenses, commitment of funds
and claimant’s necessary expertise support the determination of lack of
total unemployment.
- Unlike the situation in AB 423,599; A-750-2064, the
partners in this venture committed $4,000 to open a checking account, cost
were incurred and checks were drawn from that account. The commitment of
money to a venture is usually a good indication that the person has moved
from the "exploring" phase to the "establishing"
phase.
- It is also significant that the claimant, alone, among
the partners, possessed the skills necessary to operate the business.
- It should be noted that this determination of lack of
total unemployment was sustained even though there was no evidence or
allegation that claimant was unavailable for work and claimant did in fact
return to work as an employee for a former employer for a period of time.
Index No. 915 B-8
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 1994
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
REGISTERATION, REPORTING AND CERTIFICATION
Reduction Due to Pension
Amount of Reduction
PENSION REDUCTION – PARTIAL WEEK
A
statutory week is not divisible for purposes of Section 600.7. Thus, if
claimant is subject to a pension reduction because the eligibility for the
pension began on any day during a week, the reduction is applied to the entire
week.
AB 386,208
The
Commissioner of Labor appeals from the decision of the administrative law judge
filed March 9, 1988, insofar as it modified the initial determination charging
claimant with an overpayment of $1,620 in benefits, ruled to be recoverable, to
an overpayment of $1,543, ruled to be recoverable. No appeals was taken from
that portion from the decision sustaining the initial determination holding
that effective October 1, 1987, claimant’s benefit rate be reduced from $180 to
zero, pursuant to Section 600 of the Law.
A
hearing was held 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 Commissioner of Labor on appeal.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: Claimant, a purchasing manager, worked for the employer herein
for approximately 30 years until September 4, 1987. He filed an original claim
for benefits effective September 4, 1987, and was held eligible to receive
benefits at the rate of $180 per week. Claimant received $180 in benefits for
the statutory week ending October 4, 1987. The recoverability of the benefits
received thereafter is conceded by the claimant and is not an issue herein.
Within
a few months after losing his employment with the base period employer herein,
claimant began receiving pension payments of $875 per month. The payments were
paid retroactively to October 1, 1987 and were paid from a fund to which the
employer was the sole contributor.
OPINION: The issue to be
resolved herein is whether the claimant’s receipt of $875 in pension payments
for the calendar month commencing October 1, 1987, should be applied on a
pro-rata basis to the entire statutory week ending October 4, 1987, or only
that portion of the statutory week comprising October 1, through October 4,
1987.
Section
600.7(b) of the Law provides, in part: "If the claimant made no
contribution for the pension…his benefit rate shall be reduced by the largest
number of whole dollars which is not more than the pro-rated weekly amount of
such payment." Since the pro-rated weekly amount of claimant’s payments
exceeds claimant’s benefit rate of $180 per week, claimant’s benefit rate must
be reduced to zero for the statutory week ending October 4, 1987. We note but
disagree with the judge’s conclusion that the statutory week is divisible for
Section 600 purposes. Since claimant received more than $180 in pension
payments for the statutory week ending October 4, 1987, his pension rate for
that week was properly reduced to zero. The benefits he received for that week
are recoverable in their entirety.
Since
no appeal was taken from that portion of the judge’s decision which held that
effective October 1, 1987 claimant’s benefit rate was reduced from $180 to zero
pursuant to Section 600 of the Law, it remains the law of the case.
DECISION: The initial
determination of the local insofar as appealed from is sustained.
The
decision of the administrative Law judge is modified accordingly and, as so
modified, is affirmed.
COMMENTS
- The maximum benefit in 1987 was $180 per week. Claimants pension
began on Thursday, October 1, 1987.
- This case was inadvertently not reported at the time it
was decided.
- The Unemployment Insurance manual III 3245 provides a
method to calculate partial weeks. This method should no longer be used.
It is not required that we seek out determinations previously issued under
that procedure.
Index No. 1010-10
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
October 31, 1994
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
HEARINGS AND APPEALS
TIMELINESS
HEARING REQUEST – SPANISH LANGUAGE
When
claimant’s need for Spanish language material is clearly evident, a notice of
determination sent without it is defective and cannot be the basis for holding
a hearing request untimely.
AB 429,173
By
initial determination of the local office, the claimant was disqualified from
receiving benefits because of a loss of employment through misconduct in
connection therewith effective October 2, 1992. The claimant requested a
hearing. The Commissioner of Labor imposed a preliminary objection that the
hearing request was not made within the statutory period.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the employer. By decision dated
May 11, 1993 the Administrative Law Judge sustained the timeliness objection
and continued in effect the initial determination.
The
claimant appealed the judge’s decision to the Board. In connection with its
review of the case, the Board considered the arguments contained in the written
statement submitted by the claimant.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked for the employer, in the shipping and
receiving department, for about five years until October 1, 1992. On or about
September 1992, the office manager of the employer performed an audit of the
telephone calls made from the employer’s premises. That audit showed that
$1,000.00 to $3,000.00 worth of calls were made from the employer’s
offices to Puerto Rico. The office manager investigated, and discovered that
the claimant had made the telephone calls to his wife in Puerto Rico. Claimant
made these calls without the authorization or permission of the employer.
When
the claimant was confronted with making such calls, he at first denied doing
so. He eventually admitted making the unauthorized calls and offered to
reimburse the employer. The claimant was discharged on October 1, 1992, for
"misuse" of company funds, by making these calls.
On
October 16, 1992 the claimant filed an original claim for benefits. The
claimant has difficulty understanding and reading English. A notice of
determination, disqualifying the claimant for misconduct, was mailed to the
claimant on January 3, 1992 and duly received by him. The aforesaid notice of
determination and the instructions that were provided to the claimant, were
only in English. There was no testimony at the hearing indicating that the
claimant had the initial determination translated into Spanish.
OPINION: The credible evidence
establishes that the local office went to the claimant the initial
determination only in English, without Spanish translation or Spanish materials
was clearly evident. There is no indicating that claimant had the initial
determination translated into Spanish or had the opportunity to do so. The
claimant, therefore, cannot be penalized for failing to make a hearing request
within thirty days of the mailing of the notice of determination. The Board will,
therefore, consider the case on the merits.
The
credible evidence also establishes that the claimant was terminated for making
at least $2,000.00 worth of telephone calls to Puerto Rico without the
employer’s permission or authorization. Claimant’s offer to reimburse the
employer for these calls indicate that claimant was aware of his culpability.
The claimant’s actions were detrimental to the employer’s legitimate interest,
and constitute misconduct in connection with his employment.
DECISION: The initial
determination of the local office is sustained. The Commissioner of Labor’s
timeliness objection is overruled. The decision of the Administrative Law Judge
is reversed.
COMMENTS
- Community Services Division (CSD) Procedure Book III
6240D requires that if a determination is issued to a Spanish speaking
claimant with English language deficiencies, a LO 412.S must be attached.
This form is written in Spanish and informs claimants of the statutory
determination, advises them that the local office staff will explain the
reason portion of the determination and explains their hearing rights and
reporting responsibilities. It is required by the Municipal Labor
Consent Judgement. If the C.S.D. does not issue this form it has
failed to follow its own procedures and a claimant’s hearing request,
regardless of when it is made, must be considered timely.
- Please note Procedure III 6235 A #1 and footnote 4. A
412C must likewise be issued for Chinese speaking claimants with English
language deficiencies.
- There is no provision in procedure for similar forms in
other languages. Consequently, claimants who speak other than Spanish
or Chinese, may not be excused from the requirement to make a
timely request.
Index No. 1430-9
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
October 31, 1994
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
TOTAL OR PARTIAL UNEMPLOYMENT
CORPORATE OFFICERS
CORPORATE PRINCIPALS
When
a business entity is no longer viable having given up the business premises,
having liquidated the inventory, and having no accounts receivable, claimant’s
limited and sporadic activities to pay the accounts payable do not render the
claimant ineligible due to lack of total unemployment.
AB 424,288
By
initial determination of the local office, the claimant was held ineligible to
receive benefits because claimant was not totally unemployed effective August
17, 1992. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor. By
decision dated December 10, 1992 the Administrative Law Judge sustained the
initial determination.
The
claimant appealed the judge’s decision to the Board.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was president and owner, with his wife, of a bed
and bath retail corporation from April 1988 to August 14, 1992. On that date
the claimant ceased doing business at his store, and vacated the premises by
August 17, 1992, pursuant to a settlement with his landlord. The claimant had
previously sold off the inventory, and liquidated the assets, due to business
difficulties.
The
claimant moved the books and records for the corporation to his home and began
to seek employment. There were no accounts receivable and the only activity in
which claimant engaged, for the corporation, was to research and pay residual
accounts payable, on a sporadic basis. This amounted to about 10 or 12 checks
in the month following close down of the store. The claimant planned to consult
his accountant about the cheapest way to terminate the corporation. Any
anticipated, subsequent tax liability would be paid from the claimant’s
personal funds.
OPINION: The credible evidence
establishes that the claimant’s business had deteriorated to the point that it
was no longer a viable business entity. He had given up his business premises
and liquidated his inventory. He does not stand to gain financially from this
business. The sole service performed for the company, by the claimant, was the
payment of past accounts payable on a limited and sporadic basis, not a
substantial service. We, conclude, under the circumstances of this case, that
claimant was totally unemployed and, therefore, eligible to received benefits.
DECISION: The initial
determination of the local office is overruled.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- This case represents an exception to the general
principle that a corporate officer lacks total unemployment as long as the
corporation remains in existence. It should be carefully applied only to
situations where the business of the corporation has ceased. It does not
apply to slack periods (A-750-1837), temporary shutdowns due to fire
(A-750-1995), or seasonal closings (A-750-2016).
- Accounts payable are the bills owed by the corporation.
The Appeal Board held the paying of accounts payable was not a basis to
hold claimant to lack total unemployment. Accounts receivable are monies
owed to the corporation. The Appeal Board has held that where claimant
stands to gain financially from collecting the accounts receivable,
claimant should be held not totally unemployed. This is true even though
the funds from the accounts receivable would have been used to minimize
claimant’s losses (AB 195,279). The fact that the majority of the effort
to collect the receivables was made by the accountant did not prevent a
finding of not totally unemployed (AB 420,443)
Index No. 2060-3
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 1995
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
SECTION 599
Receipt of Other Training Allowances
CALCULATION DATE
The
calculation date used to determine eligibility for additional benefits cannot
be earlier than the first date on which claimant has less than two years
remaining in the program of training.
AB 435,695
By
initial determination of the local office, dated November 9, 1993, the claimant
was held ineligible to receive additional benefits, while in approved
vocational training, under Section 599.2. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There was an
appearance by the claimant. By decision dated December 3, 1993 the
Administrative Law Judge overruled the initial determination.
The
Commissioner of Labor appealed the judge’s decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in
the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDNGS OF FACT: The claimant filed an original claim for unemployment insurance
benefits in September 1992, and was held eligible to receive such benefits. At
that time she also reported to the local office that she was enrolled as a student
at Hunter College in a pre-nursing program. The claimant was scheduled to
complete these classes in 1994, at which time she would enter the nursing
program, which she expected to complete in June 1995. The local office did not,
at that time, advise the claimant that she could apply for career training
under Section 599 of the Labor Law. The claimant exhausted her entitlement to
regular benefits on March 28, 1993. Thereafter, she applied for and began
receiving Emergency Unemployment Compensation benefits.
On
October 13, 1993, the claimant received approval pursuant to Section 599.1 of
the Labor Law for her nursing studies, retroactive to June 1993, at which time
she would have less than two years until completion of the program. However,
the claimant was ruled ineligible to receive additional benefits under Section
599.2 because the claimant was no longer entitled to regular benefits at the
time that her training program became approvable.
OPINION: The undisputed
evidence establishes that, from September 1992, when the claimant filed her
original claim and through March 1993, when she exhausted her entitlement to
regular unemployment benefits, the course which she was attending was not
approvable for career training under Section 599.1 of the Labor because the
course required more than 24 months until completion. Furthermore, at the time
the course became approvable in June 1993, the claimant was no longer entitled
to any further regular benefits on her original claim.
Section
599.2(a) of the Labor Law provides, in pertinent part, that "a
claimant attending an approved training
course or program under this section may receive additional benefits…" and
that "the duration of such additional benefits shall in no case exceed
twice the number of effective days of regular benefits to which the claimant is
entitled at the time the claimant is accepted in or demonstrates application
for appropriate training" *emphasis added. The statutory
language therefore requires that the course be approvable when eligibility for
regular benefits still exists. Inasmuch as the claimant could not meet this
requirement, we conclude that she is not entitled to such additional benefits.
Furthermore,
while the record fails to disclose the reasons why an application for career
training approval was not processed earlier, we note that, in view of the
undisputed facts, this would have no bearing on the ultimate result.
DECISION: The initial
determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- This decision affirms the principle stated in Field
Memorandum 2-93, "Section 599: Final Regulations and
Clarifications."
- The calculation date is the earliest of three dates.
The date claimant applied for, was accepted in, or began appropriate
training. Section 599.1c requires that the training not require more than
twenty-four months to complete. Prior precedent determined that this
meant the amount of time remaining in the training course. In this case the
completion date of the training course exceeded twenty-four months both at
the time claimant had applied for or was accepted into the training.
Therefore, neither could be used as the calculation date for the purpose
of determining eligibility under 599.2 even after less than twenty-four
months remained in the training.
Index No. 1625-8
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 1995
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
VOLUNTARY SEPARATION
Corporate officer and stockholder
SALE OF BUSINESS
Despite
a corporate officer’s contention that he was forced to sell his business due to
losses, the claimant quits without good cause when the business continued to
pay the officers salaries, found a buyer who continued to run the
business and there was no specific factor or even which changed the viability
of the business. The claimant failed to establish the business was no longer
viable.
AB 442,233
By
initial determination of the local office, the claimant was disqualified from
receiving benefits because of a voluntary leaving of employment without good
cause effective August 19, 1992. The claimant requested a hearing.
The
Administrative Law Judge held hearings at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor. By
decision dated July 21, 1993 the Administrative Law Judge sustained the initial
determination.
The
claimant appealed the judge’s decision to the Board. In connection with its
review of the case, the Board considered the arguments contained in the written
statement submitted.
FINDINGS OF FACT: The claimant was an officer and 50 percent owner of a
corporation which operated an automobile brake repair business for about
twenty-five years until the business was sold on August 29, 1992. The claimant
and two partners originally paid a total of $27,000 dollars for the business. The
third partner was bought out 1981. In 1989, the business had gross sales of
about $123,000, which resulted in a net loss of about $400 after deducting the
salaries of the claimant and his partner of $20,800 each. In 1990, the business
had gross sales of $118,500, a net loss of about $5,000 and salaries to the
claimant and his partner of $20,800 each. In 1992, and until the date of sale
of the business, the business had gross sales of about $77,000, a net loss of
about $6,500 and salaries of the claimant and his partner of $14,000 each.
The
claimant’s accountant advised the claimant that the business was minimally
profitable and should therefore consider an offer to buy the business. The
business was sold for $30,000 and continued to operate in the same capacity
without interruption under the new ownership.
OPINION: The credible evidence
establishes that the claimant voluntarily left his employment when he and his
partner sold their business. However, the record fails to establish that the
business was no longer financially viable at the time of the sale.
Significantly, in each of the last four years the claimant and his partner were
able to draw a substantial salary from the business. Furthermore, they were
successful in finding someone to purchase the business who continued to run the
business, in the same capacity, as a viable enterprise. As such, the
circumstances of this case are readily distinguishable from those cases where
the sale of a business was deemed to be for compelling financial reasons. In Matter
of Samuel Confino, 189 AD 2d 962 (1993), the Appellate Division held
that a claimant had a compelling reason to sell a business after the business
had lost its sole account. In Matter of Matilda L. Crawford, 182 AD
2d 1047 (1992), the Court held that a claimant had a compelling reason to sell
a business when the principal of the business became afflicted with arthritis
and could no longer perform his crucial functions. In Matter of
Anthony Spinella, 168 AD 2d 817 (1990), the Appellate Division held
that a claimant had a compelling reason to sell a business when the business
lost key employees who could not be replaced. In Matter of Seymour Katz,
123 AD 2d 489 (1986), a business had three consecutive years of losses and the
claimant was forced to infuse personal funds into the business to keep it
going.
Applying
the above situations, we find that, while the claimant’s business was producing
losses, the claimant was still able to draw a salary and there was no specific
factor or event which changed the viability of the claimant’s business so as to
compel the claimant to sell at the time he did. Accordingly, we conclude that
the claimant sold his business for personal non-compelling reasons and without
good cause. Inasmuch as the business was sold on August 29, 1992, the effective
date of the determination should be modified accordingly.
DECISION: The initial
determination of the local office is modified to be effective August 29, 1992,
and as so modified, is sustained.
COMMENT
The
claimant has appealed this case to the Appellate Division.
Index No. 1110-19
1125-12
1152-8
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 1996
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Absence and Lateness
Alcohol
Drugs
DRUGS & ALCOHOL
Unsatisfactory
attendance is not excused by claimant’s addictions to both a controlled
substance and alcohol. Because the controlled substance is illegal, the
claimant’s alcoholism should not be considered in determining the reason for
separation.
AB 445,500
By
initial determination of the local office, the claimant was held eligible to
receive benefits without any disqualifying conditions effective September 19,
1994. The employer requested a hearing contending that the claimant should be
disqualified from receiving benefits because of a loss of employment through
misconduct in connection therewith.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the employer. By decision dated
November 23, 1994 the Administrative Law Judge sustained the initial
determination.
The
employer appealed the judge’s decision to the Board.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a probationary quality control
technician from June 6, 1994 to August 17, 1994. The claimant had been warned
several times about his tardiness, the last time being July 14, 1994. The
claimant did not report to work after August 17, 1994, due to his addiction to
alcohol and cocaine. He sought treatment for his condition. He entered a
residential treatment program on August 18, 1994. He was discharged from his
position because of his unsatisfactory attendance while on probation.
OPINION: The credible evidence
establishes that the claimant lost his employment as a result of his
unsatisfactory attendance. His last absence was caused at least in part by his
use of cocaine, which is in violation of the law. The claimant admitted this at
the hearing. In Matter of Kuehn, 174 AD 2d 776, aff’g Appeal
Board No. 398,533A, the Court affirmed a decision of the Board which observed
significant difference in the way alcoholism and drug addiction are judged by
society and, consequently, how each is and should be viewed under New York
State law. As procurement, possession, and use of a controlled substance
constitutes criminal activity, the negative consequences of which can be
reasonably foreseen, the claimant must bear the responsibility for his last
absence.
The
employer had a legitimate expectation that its employee would be present during
scheduled hours of work. This record establishes that the claimant, while on
probation and already having been warned about tardiness, was unable to meet
this expectation due to his use of cocaine and alcohol. We will not, in the face
of the claimant’s admission to use of cocaine, apportion the reason for his
last absence between use of alcohol and use of cocaine where there is evidence
of both. So long as his course of conduct, culminating in his failure to report
for work, is clearly attributable to voluntary use of cocaine, we find that he
lost his employment through misconduct in connection therewith. The claimant
should, therefore, be disqualified from receiving benefits. The
disqualification is effective August 18, 1994.
DECISION: The initial
determination of the local office is overruled.
The
decision of the Administrative Law Judge is reversed.
Index No. 1137-5
1155-6
1160-9
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 1996
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Civil Rights
Hours (Including Overtime, Weekend)
Insubordination
JURY DUTY
Refusal
to work an evening shift while serving jury duty is not misconduct because such
work would be contrary to public policy and would infringe upon and inhibit the
claimant’s physical ability to properly serve as a juror the following day.
AB 432,522
By
initial determination of the local office, the claimant was held eligible to
receive benefits without any disqualifying conditions effective May 10, 1993.
The employer requested a hearing contending that the claimant should be
disqualified from receiving benefits because of a loss of employment through
misconduct in connection therewith.
The
Administrative Law Judge held a hearing at which testimony was taken.
There were appearance on behalf of the claimant and of the employer.
By decision dated September 1, 1993 the Administrative Law Judge sustained,
effective May 19, 1993, the employer’s objection to the initial determination.
The
claimant appealed the judge’s decision to the Board. A further hearing was held
before the Board, at which all parties were accorded a full opportunity to be
heard and at which testimony was taken. There were appearances on behalf of the
claimant, of the employer and of the Commissioner of Labor. In connection with
its review of the case, the Board considered the arguments contained in the
written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked for two years as a counselor for a health
center until May 5, 1993. The claimant’s normal work hours were Monday to
Friday, 9 AM to 5 PM, except on Wednesdays, when the center stayed open late
and the claimant worked to 9 PM. The claimant was called for jury duty and
designated as a juror some time in April 1993. On April 30,1993 the
employer advised the claimant that they wanted her to work her late hours on
Wednesday, May 5, 1993, after jury duty. The claimant told her employer that
she could not do this because she felt she would be too tired to work after
jury duty. The employer therefore issued a memo, dated April 30,1993, which
ordered the claimant to report for work on Wednesday May 5, 1993, after jury
duty, or face possible discharge. The claimant served on jury duty on May 3,
1993, for a brief period and reported to work afterward. The claimant served on
jury duty on May 4 and May 5, 1993 until about 4:30 PM and was scheduled to
serve the following day. She called her employer on May 5, 1993, to let them
know that she would not be coming in to work. After receiving this phone call,
the employer discharged the claimant for failing to report to work after jury
duty despite the written directive to do so.
OPINION: The credible evidence
now before the Board establishes that the claimant was discharged for failing
to report to work after a full day of service on jury duty. The employer’s
order, that the claimant report for work after jury duty, is contrary to public
policy, as embodied in Section 500 and Section 519 of the Judiciary Law, which
provides, in pertinent part, "Any person who is summoned to serve as a
juror under the provisions of this article and who notifies his or her employer
to that effect prior to the commencement of a term of service, shall not, on
account of absence from employment by reason of such jury service, be subject
to discharge or penalty."
While
the employer argued that they were asking the claimant to work after her jury
duty was complete for the day in question, we find that this would still
violate the policy expressed in the aforesaid statute, because he would
infringe upon and inhibit the claimant’s physical ability to properly serve as
a juror. It is furthermore significant that the claimant was scheduled for jury
duty the following day. Accordingly, we conclude that claimant's failure to
work after serving jury duty cannot be considered an act of misconduct.
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.
COMMENT
The
employer’s order is contrary to the public policy of sections 500 and 519 of
the Judiciary Law, which provides in part: "Any person who is summoned to
serve as a juror under the provisions of this article and who notifies his or
her employer to that effect prior to commencement of a term of service, shall
not, on account of absence from employment by reason of such jury service, be
subject to discharge or penalty."
INDEX 1505-B4
INDEX 1580-C6
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE
DIVISION
ADJUDICATION SERVICES
OFFICE
MARCH 1996
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISREPRESENTATION AND REDETERMINATION
Agent or Impersonator
Deviations from standards
TEL-CERT
When
a claimant obtains or attempts to obtain benefits fraudulently, by having
another person certify for benefits on his behalf by giving that person access
to his personal identification number (PIN), this constitutes an aggravated
circumstance, for which a forfeiture penalty of 80 effective days of future
benefits may be imposed.
AB 453,811
By
initial determination of the local office, claimant's right to future benefits
was reduced by 80 effective days because claimant wilfully made a
false statement. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There was an
appearance by the claimant. By decision dated August 18, 1995 the Administrative
Law Judge overruled the initial determination.
The
Commissioner of Labor appealed the judge's decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in
the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS
OF FACT: The claimant was employed as a journeyman by a stamping plant until
December 18, 1994 when he lost his employment under non-disqualifying
conditions. In applying for unemployment insurance benefits on February 1,
1995, he received a claimant's handbook in which he read that no one could
certify for benefits on his behalf. Claimant thought that this had to do with
signing documents and sending them in to the local office, and did not apply to
certification by telephone. In addition to reading the handbook requirement
regarding certification for benefits, the claimant attended an orientation
session in which certifying for benefits by telephone through the use of a pin
number was discussed. The claimant certified for benefits by telephone through
the use of his pin number every Sunday until the week ending April 9, 1995.
Claimant was out of state on vacation and gave his wife his pin number to
certify on his behalf. The claimant did not ask local office personnel if he
could give his pin number to anyone to certify for him.
OPINION:
The credible evidence establishes that claimant made a wilful false
statement when he had his wife certify for benefits on his behalf on April 9,
1995. Claimant acknowledged reading the claimant's handbook which advised
claimant that no one is to certify for the claimant. Claimant's assumption that
this prohibition only applied to certifications by document and not tel-certification,
is not credible. The prohibition is clear and is without exception. No one may
certify for a claimant. Given the claimant's knowledge of the prohibition, his
behavior in giving his wife his pin number and to certify for him on April 9
constitutes a wilful false statement. Accordingly, we find that the
claimant's right to future benefits is reduced by 80 effective days.
DECISION:
The initial determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- In prior cases the Appeal Board held that authorization
by a claimant, express or implied, to have an imposter claim his benefits,
constitutes a wilful misrepresentation made to obtain benefits,
for which the maximum penalty of 80 effective days should be imposed.
- In the present case, the Appeal Board held that the
claimant made a wilful false statement when he had his wife
certify for benefits on his behalf, by allowing her access to his PIN
number which she used to certify for benefits while the claimant was on vacation.
The Appeal Board sustained the determination of 80 forfeit effective days,
which is the penalty for flagrant fraud.
- The Appeal Board acknowledged that the claimant
handbook prohibits anyone else from certifying for a claimant, and that
such prohibition is clear and without exception. In addition, claimant
also signs a form, Receipt of Telephone Certification Information (LO
329.1), which further instructs him not to tell anyone his personal
identification number (PIN) and advises him that he could lose up to 20
weeks of benefits if he allows someone else to use his PIN number. This
form should be forwarded to the Adjudication Services Office when
processing such cases for hearing.
- This ruling reinforces the policy discussed in Field
Memorandum 4-93. The Appeal Board finds this wilful misrepresentation
does constitute flagrant fraud, as discussed in Special Bulletin A-710-21.
Index 1690.8
1705.5
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE
DIVISION
ADJUDICATION SERVICES
OFFICE
MAY 1996
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Pension or retirement
Reduction-in-force situations
CLIMATE OF UNCERTAINTY
Where
an employer established a substantial down-sizing goal, a climate of
uncertainty and fear of losing one's employment may constitute good cause for
participation in a voluntary severance or retirement incentive program. All the
following factors must be present: the employer established a substantial
down-sizing goal; did not rule out layoffs in the event such goals were not
achieved; did not establish clear criteria for selection of individuals if
layoffs were necessary; and provided substantial incentives to participate in
the work force reduction.
AB 432,222A
By
initial determination of the Commissioner of Labor, the claimant was held
eligible to receive benefits without any disqualifying conditions effective
October 1, 1990. The employer requested a hearing contending that the claimant
should be disqualified from receiving benefits because of a voluntary leaving
of employment without good cause.
The
Administrative Law Judge held telephone conference hearings at which all
parties were accorded a full opportunity to be heard and at which testimony was
taken. There were appearances on behalf of the claimant, of the employer and of
the Commissioner of Labor. By decision dated May 23, 1991 the Administrative
Law Judge sustained the initial determination.
The
employer appealed the judge's decision to the Board. In connection with its
review of the case, the Board considered the arguments contained in the written
statements submitted. By decision dated May 19, 1993 the Board overruled the
initial determination and reversed the Administrative Law Judge.
The
Commissioner of Labor applied, under Section 534 of the Labor Law, for a
reopening and reconsideration of the decision by the Board dated May 19, 1993
(Appeal Board 409,398). Due deliberation having been had, the Board determined
to reopen and reconsider said decision. In connection with its review of the
case, the Board considered the arguments contained in the written statement
submitted.
Based
on its further review the record and testimony in this case, the Board makes
the following
FINDINGS
OF FACT: The claimant was employed by a bank as a clerk for more than 10 years
until September 21, 1990. She was not a member of a union. She filed an
original claim for benefits effective October 1, 1990.
On
August 8, 1990, the employer sent a memo to its employees in the United States
announcing a voluntary separation or "buyout" program for employees
with at least 10 years of service. The memo stated as follows, in pertinent
part:
"The
Voluntary Separation Program is being offered for only a limited period of time
-- from now through September 10. It is an integral part of the recent
announcements to restructure the Corporation. Our plans for reorganization are
being undertaken as a result of the severe economic environment in which we are
operating and the competitive pressures we are facing. We must increase
efficiency and achieve immediate and substantial reductions in operating
expenses of $300 million annually. This, coupled with streamlining the
organization, necessarily will result in the elimination of several thousand
jobs within the [employer's] network."
Neither
the August 8 memo nor the information packet for the program communicated the
exact number of jobs that the employer wished to eliminate. Nor did they rule
out involuntary layoffs in the event that the employer determined that further
down-sizing was required or establish criteria for the selection of individuals
to be separated if layoffs were necessary. Although no official announcements
were made concerning layoffs, there were rumors that they were being planned
and the news media reported both before and after the announcement of the
buyout program that the employer would be eliminating thousands of jobs.
The
voluntary separation program provided severance payment incentives based on the
employee's years of service. Employees who had 10 to 19 years of service
received two weeks of severance pay for each year, and employees who had 20 or
more years of service received three weeks of severance pay for each year, up
to a maximum of 104 weeks. In addition, a participating employee was provided
with life insurance and COBRA medical insurance coverage at the employer's
expense until one year after the separation date (September 21, 1990) or the
date that the employee began new employment, whichever was earlier.
The
August 8 memo also indicated that after the September 10 deadline for applying
for the program severance benefits for staff reductions would be made in
accordance with the employer's regular policy. Under the regular policy,
employees with 10 to 12 years of service received only one week of severance
pay for each year, and employees with 13 or more years of service received two
weeks of severance pay for each year, up to a maximum of 52 weeks. Life insurance
and COBRA medical insurance coverage was not provided to employees at the
employer's expense under this policy.
Approximately
2,000 U.S.-based employees opted for the voluntary separation program, and
another 170 employees were laid off after the September 10 deadline.
Additionally, 1,500 to 2,000 employees overseas were separated from their
employment.
The
claimant was informed by her supervisor that the purpose of the buyout program
was to avoid massive layoffs, which otherwise could be expected to occur at the
end of the year. He also told her that a new computer system which was
installed shortly before the buyout program was announced would cause his staff
to be reduced since there was less work to be done. She was not given any
assurance by the employer that her own job was secure.
The
claimant was eligible for 20 weeks of severance pay, as well as the other progrm benefits
described above. She weighed the uncertainty of her continued employment
against the benefits she would receive and resigned under the buyout program
effective September 21, 1990.
OPINION:
The credible evidence establishes that the claimant's decision to accept the
employer's voluntary separation package offer was compelled by a climate of
uncertainty and her fear of losing her employment. This fear was not
unreasonable in view of the content of the August 8 memo to the work force
announcing the buyout offer. The memo unequivocally stated that "the
severe economic environment" in which the employer was operating and
"the competitive pressures" the employer was facing created the need
for "immediate and substantial reductions in operating expenses of $300
million annually," and that this "necessarily will result in the
elimination of several thousand jobs within the [employer's] network."
It is
also significant in view of the reports in the news media regarding the
employer's serious financial troubles and the anticipated large scale work
force reduction, that the buyout program materials did not rule out layoffs in
the event that further down-sizing was considered necessary by the employer or
specify the criteria for selecting individuals to be laid off. This contributed
to the climate of uncertainty and fear in which the participants in the buyout
program decided to resign their jobs voluntarily rather than risk layoffs and
loss of the enticing benefits being offered by the employer.
Subsequent
to our May 19, 1993 decision in this case we refined our approach in connection
with limited situations where claimants are compelled to particpate in
voluntary severance or retirement incentive programs as a result of a climate
of uncertainty and fear of losing one's employment. See Appeal Board 430,863
where we delineated various factors which led us to conclude that such
claimants resigned their jobs with good cause. Briefly, in that case, as in the
case now before us, the employer established a substantial down-sizing goal,
did not rule out layoffs in the event such goals were unachieved, did not
establish clear criteria for selection of individuals to be separated if
layoffs were necesessary, and provided substantial incentives to
participate in the work force reduction.
Having
revisited the facts in this case, and applying the criteria detailed above, we
now conclude that the claimant voluntarily left her employment with good cause.
We
are aware of Matter of Fisher, 36 NY 2d 146, 1975 aff'g Appeal
Board 181,289, but conclude that the case is clearly distinguishable. In Fisher the
prospect of continued employment was not questionable because the claimant was
covered by a collective bargaining agreement that contained a no-layoff
provision (Ibid at p. 148). However, the claimant herein was not protected by
such a union contract. Also, as the Court found in Fisher, the
claimant could have recouped the offered increase in retirement benefits by
continuing to work (Ibid at p. 153), but in the instant case the claimant would
have received substantially less benefits if the claimant declined the buyout
offer and was subsequently laid off.
DECISION:
The decision of the Board dated May 19, 1993 (Appeal Board 409,398) is hereby
rescinded.
The
initial determination of the Commissioner of Labor is sustained.
The
decision of the Administrative Law Judge is affirmed.
COMMENTS
- In this case the Appeal Board has explicitly recounted
its criteria for finding good cause for voluntary participation in a
severance or retirement incentive program. Each of these criteria must be
present: an employer's express intention to reduce staff and to use
involuntary separations if voluntary separations are too few; a lack of
clear criteria for targeting layoffs; and a substantial incentive for
voluntary participation.
- When one of these criteria is missing, it can not be
shown that "uncertainty or fear of involuntary layoff"
constitutes good cause for voluntarily leaving one's employment. If the
claimant is not subject to being targeted for involuntary layoff, he does
not have good cause for voluntarily electing severance (See Matter
of Fisher, 36 NY 2d 146, Index 1705.2, A-750-1784). Where there is no
evidence that the claimant's job was being eliminated, claimant does not
have good cause to accept an incentive (AB 415,459A not reported).
- This rule replaces Index 1615.10, 1690.8 and 1705.5
(A-750-1983) which should be marked obsolete.
Index 1690.9
1705.6
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE
DIVISION
ADJUDICATION SERVICES
OFFICE
MAY 1996
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Pension or retirement
Reduction-in-force situations
NO THREAT OF LAYOFF
Where
claimant was not in danger of being involuntarily laid off or forced to retire,
voluntary leaving of employment merely to obtain a financial incentive is
without good cause.
AB 419,971
By
initial determination of the local office, the claimant was disqualified from
receiving benefits because of a voluntary leaving of employment without good
cause effective December 23, 1991. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant, of the employer and of the Commissioner
of Labor. By decision dated July 13, 1992 the Administrative Law Judge
overruled the initial determination.
The
Commissioner of Labor and the employer appealed the judge's decision to the
Board. In connection with its review of the case, the Board considered the
arguments contained in the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant voluntarily left employment with a telephone
company under a retirement incentive plan for its unionized employees. The plan
was offered for the purpose of reducing the employer's work force in light of
mechanization projects and competitive pressures. The claimant's prospects of
continued employment beyond December 31, 1991, the end of a two month period
for electing to retire under the plan, were not in question. No threats of
involuntary layoff were made to employees who were eligible for the plan.
Indeed, such layoffs had never been instituted by the employer. Nor were these
employees subject to a mandatory retirement age.
The
retirement incentive consisted of (i) a 15% increase in the employee's monthly
pension from date of retirement to age 62 and (ii) a guarantee that the
employee would at no time have to pay a portion of the premiums for medical
insurance coverage. Although the employer had never obtained the unions'
agreement to having employees or retirees contribute to the cost of their
medical benefits, the employer could seek to negotiate a change in this
arrangement after 1995 except with respect to employees who accepted the
retirement incentive offer. The most any management or non-unionized employer
paid for medical benefits was $75 per month, which was for coverage for the
employee and his or her spouse and children.
The
claimant chose to opt for the retirement incentive offer and retired under the
plan by the December 31, 1991 deadline. If the claimant had instead continued
working for the employer, the claimant could have recouped the 15% increase in
the pension.
OPINION: The credible
evidence establishes that the claimant decided to retire in order to obtain a
15% increase in the claimant's monthly pension until age 62 and a guarantee of
never having to contribute to the cost of the medical benefits. The evidence
further establishes that the claimant was not in danger of being laid off or
forced to retire, and the claimant could have recouped the value of the pension
increase by continuing to work for the employer. Moreover, the claimant's
desire to obtain the medical benefit guarantee was based on speculation that
the employer might someday prevail upon the unions to agree to having employees
and retirees contribute to the cost of their medical benefits. Since the unions
had never made such a concession to the employer in the past and there is
nothing in the record which suggests that the unions would change their
position, the claimant's concern that this might happen in the future is not
compelling.
This
case is similar to Matter of Fisher, 36 NY 2d 146, 1975, aff'g Appeal
Board 181,289, where the claimant opted for a retirement incentive when the
prospect of continued employment was not in question. The Court concluded
in Fisher that the claimant retired for non-compelling
reasons, and thus without good cause for unemployment insurance purposes,
because he could have recouped the offered increase in retirement benefits by
continuing to work. As noted above, in the instant case the claimant could have
likewise recouped the value of the pension increase, and therefore had no
compelling reason for retiring.
The
Administrative Law Judge's reliance on Appeal Board 351,375 is misplaced. That
case is distinguishable because the employer therein was facing imminent
extinction if a substantial reduction in force did not occur and the employer
communicated this information to its employees in connection with the voluntary
separation incentive offer.
In
view of the foregoing, we hold that the claimant herein is disqualified from
receiving benefits because of a voluntary leaving of employment without good
cause.
DECISION: The
initial determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- In this case, a retirement incentive plan was offered
to unionized employees for the purpose of reducing the work force.
Nevertheless, there were no threats of involuntary layoff; claimant could
have continued to work.
- Although the employer offered a significant financial
incentive in the form of an increase in pension and guarantee of medical
benefits, there is no evidence that claimant could not have recouped these
financial benefits through continued employment (See Matter of
Fisher, 36 NY 2d 146 Index 1705.2, A-750-1784).
- In another case wherein the Appeal Board found claimant
was not told her job would end, even a severance payment of $25,000 which
would not otherwise have been available to the claimant does not justify
voluntary separation (AB 455,520 not reported).
Index 1590.1
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE
DIVISION
ADJUDICATION SERVICES
OFFICE
AUGUST 1996
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISREPRESENTATION and REDETERMINATION
Recovery of Overpayment
RECOVERY OF OVERPAYMENT
The
Commissioner of Labor has the right to recoup outstanding prior overpayments by
withholding and offsetting current benefits.
AB 444,503
By
determination of the Commissioner of Labor, the claimant's benefit rate of $300
was reduced to $150, effective July 4, 1994, because of a 50% offset due to a
prior overpayment. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor. By
decision dated October 18, 1994 the Administrative Law Judge overruled the
determination.
The
Commissioner of Labor appealed the judge's decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in
the written statements submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS
OF FACT: The claimant filed an original claim for benefits effective February
22, 1993. By initial determination dated March 11, 1993, she was disqualified
from receiving benefits because she left her employment without good cause. The
claimant requested a hearing and, by decision dated June 11, 1993 (ALJ Case No.
093-17272), the initial determination was overruled. The employer in that case
applied to reopen the decision and, by decision dated July 30, 1993 (ALJ Case
No. 093-24170), the disqualification was reinstated. Pursuant to this decision,
the claimant was charged with an overpayment of $5025, the amount of benefits
she had received as a result of the first decision, and which amount has
apparently not been disputed. The claimant appealed the latter decision to the
Board.
During
the pendency of claimant's appeal, she filed a new original claim for benefits
effective July 4, 1994 and was held eligible to receive benefits at the weekly
rate of $300. Thereafter, $150 was withheld from each benefit check as an
offset for the outstanding overpayment.
OPINION:
Section 597.4 of the Labor Law provides that, "Whenever a new
determination...or a decision by a referee, the appeal board, or a court
results in a decrease or denial of benefits previously allowed, the
commissioner shall have a right of action for recovery of moneys paid pursuant
to the prior determination or decision." The Court of Appeals, in Matter
of Schwartfigure v. Hartnett, 82 NY 2d 296, ruled that, in
addition to providing a statutory remedy to recoup previously overpaid funds,
the 1983 amendment to this section "effectively restored the (Commissioner
of Labor's) common law right of setoff to recoup those erroneously paid
funds." Schwartfigure at p. 300. The Court then set aside
the offset in that case because the policy had not been established in
accordance with the State Administrative Procedures Act.
Subsequent
thereto, and in compliance with SAPA, the Commissioner of Labor proposed and
promulgated the rule codifying the setoff policy, effective April 7, 1994, to
withhold 100% of current benefits for a prior overpayment received as a result
of fraud or wilful misrepresentation and 50% if the overpayment was
not obtained through fraud or wilful misrepresentation (12 NYCRR
470.5).
Given
the plain and unlimited language of Section 597.4, and notwithstanding that the
underlying issue may be on appeal to the Board, the Commissioner of Labor's
policy to withhold 50% of the claimant's current benefits due to the
outstanding overpayment is a reasonable exercise of the powers granted by
Section 530 of the Labor Law to the Commissioner "to make all rules and
regulations...as may be necessary in the administration of this article."
Significantly, this policy allows for a recovery of public funds that were
improperly received while still providing a certain degree of economic security
to those individuals who are unemployed through no fault of their own.
Accordingly, we conclude that the claimant is properly subject to the 50%
setoff of her benefit rate.
DECISION:
The determination of the Commissioner of Labor is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- In this case the Appeal Board affirms the Commissioner
of Labor's right to recover unrepaid overpayments by offsetting
a claimant's current benefits.
- The Commissioner of Labor, having promulgated the rules
necessary to codify the setoff policy, has the authority to withhold 50%
of a claimant's current benefits, to recover the prior overpayment, where
the overpayment was not obtained through fraud or wilful misrepresentation.
- The language of this decision also acknowledges the
Commissioner of Labor's authority to withhold 100% of a claimant's current
benefits to recover a prior overpayment received as a result of fraud
or wilful misrepresentation.
- It should also be noted that an overpayment must be
offset even if the underlying issue that gave rise to the overpayment is
currently on appeal.
Index 1127.2
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
AUGUST 1996
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Appearance
FACIAL HAIR
Refusal
to be clean shaven in accordance with the employer's policy is not misconduct
if the employer fails to offer a compelling reason for having such an intrusive
policy.
AB 460,731A
The
Commissioner of Labor has applied to the Board, pursuant to Section 534 of the
Labor Law, to reopen and reconsider its prior decision which was mailed and
filed on February 23, 1996 (Appeal Board No. 436,948), which reversed the
decision of the Administrative Law Judge filed January 25, 1994 (A.L.J. No.
093-47678), which sustained the initial determination by which the claimant was
disqualified from receiving benefits because he lost his employment through
misconduct in connection therewith, effective November 11, 1993.
Due
deliberation having been had, the Board has determined to reopen and reconsider
its prior decision. In connection with its review of the case, the Board
considered the arguments made in the written statement submitted on behalf of
the Commissioner of Labor in its application to reopen.
Now,
based on all of the foregoing and on all of the proceedings heretofore had
herein, the Board makes the following
FINDINGS
OF FACT: The claimant worked at an indoor fun center for children for approximately
one year until November 10, 1993. He was employed as a maintenance worker. The
claimant had had a beard which he kept neatly trimmed since hire. The employer
instituted a policy in October 1995 that employees were not to have beards. The
claimant's supervisor told him on several occasions to shave his beard. The
claimant did not do so. On November 10, 1993, the claimant was discharged for
refusing to shave his beard. The employer could offer no reason for its ban on
neatly trimmed beards.
OPINION:
Upon reconsideration, the evidence establishes that the claimant was discharged
because he refused to shave his beard, despite directions to do so and the
employer's new policy that he was not to wear a beard. The Board, however, has
consistently held that failure to comply with an unreasonable policy is not
misconduct. While employer policies requiring employees to be "neatly
groomed" are reasonable, a policy prohibiting facial hair or beards, is
so intrusive, that the employer must present a compelling reason for having
such a policy before we will disqualify a claimant from receiving benefits
because he will not comply with an order to shave off the beard or facial hair.
The employer has shown no reason, compelling or otherwise, for its policy. We,
therefore, conclude that the claimant's failure to shave his beard in the
absence of a compelling reason for demanding that he do so does not constitute
misconduct. To the extent prior Board cases held that claimants could be
disqualified for not complying with such a policy, in the absence of the
employer proving a compelling reason for the existence of such policy, such
cases will no longer be followed.
DECISION:
The decision of the Board filed February 23, 1996 (AB 436,948), is hereby
adhered to.
The
initial determination of the local office is overruled.
The
decision of the Administrative Law Judge is affirmed.
COMMENTS
- The Appeal Board is hereby explicitly reversing its
prior precedent. The Board held that while employers have the authority to
implement policies requiring employees to be neatly groomed, in order to
justify an intrusive policy to require employees to shave off facial hair,
a compelling reason for such policy must be presented.
- In the instant case, the employer instituted the new
policy which was not a condition of hire when the claimant first began
employment. The employer offered no compelling reason for this policy.
However, where the employer has articulated a compelling reason for having
such a policy, for example to ensure proper fitting of personal protective
equipment like a dust mask or breathing apparatus, claimant's failure or
refusal to adhere to the policy is misconduct.
- In another case (AB 458,483, not published) even where
the employer's policy banning all facial hair was a condition of hire, the
Appeal Board finds that refusal to comply with the policy is not
misconduct when the employer fails to justify this intrusive policy.
- This principle should be narrowly interpreted to apply
only to facial hair, and not to other employer policies on appearance such
as dress codes.
- This rule therefore replaces the rule published as
1127.2, which is withdrawn.
INDEX 2020.1
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE
DIVISION
ADJUDICATION SERVICES
OFFICE
AUGUST 1996
INTERPRETATION SERVICE-BENEFIT
CLAIMS
SECTION 599
Training facility, acceptability of
COMPETENT AND RELIABLE
AGENCY
Training
may not be approved under Section 599 unless it is offered by a competent and
reliable agency, which itself is approved under specific regulations
promulgated by the Commissioner of Labor.
AB 454,240
By
initial determination of the local office dated June 26, 1995, the claimant was
denied approval for vocational training under Section 599. The claimant
requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor. By
decision dated September 1, 1995, the Administrative Law Judge overruled the
initial determination.
The
Commissioner of Labor appealed the judge's decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in
the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS
OF FACT: The claimant filed an original claim for benefits effective December,
1994, and was ruled eligible to receive benefits. She received information
about making application for career and related training under Section 599 at
the local office. In May 1995, the claimant learned that she would need
computer training in order to seek employment for which her prior experience
would otherwise qualify her. She inquired at the local office for a list of
schools which provided computer skills training. Various state agencies approve
courses offered by various schools. The local office policy is to make inquiry
with these agencies after a claimant completes an application for Section 599
training which lists a particular school, course work and hours. The department
does not know that courses are offered by the various schools prior to
receiving and examining an application from claimants. Additionally, the State
agencies change the list of approved schools each week. The claimant enrolled
in a school which offered a computer training course beginning in June, 1995.
The school informed the claimant that it had filed an application for a license
from the New York State Education Department. After an investigation, the
department discovered that the school had not been licensed. The claimant was
therefore denied approval for Section 599 training.
OPINION:
The credible evidence establishes that the claimant was denied approval for
Section 599 training because the school at which she enrolled was not licensed
by the New York State Department of Education nor any other State
agency. Section 530 of the Labor Law authorizes the Commissioner to make all
rules and regulations to administer the Unemployment Insurance Law. Section
599.1(c) provides that the Commissioner shall not approve career and related
training unless "the training is offered by a competent and reliable
agency." The Commissioner's regulation states as follows: "competent
and reliable agency means an entity approved by the State Department of
Education or other appropriate state agency (12 NYCRR 482.2(c)). The school
selected by the claimant had still not been licensed as of the date of the
hearing. The Commissioner's witness further testified credibly that the school
owner informed him that she had never followed up on the application for
approval. The Commissioner's regulation is reasonable in order to avoid
dissipating limited training funds. Accordingly, we find that the claimant was
properly denied approval for Section 599 training because the school in which
she enrolled was not properly licensed.
DECISION:
The initial determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- One statutory requirement for approval of training
under Section 599 is that the course or training be offered by a competent
and reliable agency. This decision affirms the principle stated in Field
Memorandum 8-91, "Section 599 Regulations," as pertains to
"competent and reliable agency."
- In this case the training facility was not approved by
the Commissioner of Labor because it is not licensed and it had not
pursued its application for approval.
- The Appeal Board affirms the reasonableness of the
Commissioner of Labor's regulations, "in order to avoid dissipating
limited training funds."
- Questions regarding whether an agency is
"competent and reliable" should be referred through 599 liaisons
or other appropriate designees in the Regional Directors' offices.
Index 2060.4
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE
DIVISION
ADJUDICATION SERVICES
OFFICE
AUGUST 1996
INTERPRETATION
SERVICE-BENEFIT CLAIMS
SECTION 599
Additional Benefits
FAILURE TO REQUEST
APPROVAL
A precondition to the receipt of additional
benefits under Section 599.2 is approval of claimant's training program. Where
claimant fails to request approval until all regular benefits are exhausted, no
additional benefits can be paid.
AB 456,271
By initial determination of the local office,
the claimant was denied approval for vocational training under Section 599.2,
effective July 10, 1995. The claimant requested a hearing.
The Administrative Law Judge held a hearing at
which all parties were accorded a full opportunity to be heard and at which
testimony was taken. There were appearances on behalf of the claimant and of
the Commissioner of Labor. By decision dated November 2, 1995 the
Administrative Law Judge overruled the initial determination.
The Commissioner of Labor appealed the judge's
decision to the Board. In connection with its review of the case, the Board
considered the arguments contained in the written statement submitted.
Based on the record and testimony in this case,
the Board makes the following
FINDINGS OF FACT: Claimant received benefits for
a full 26 weeks, with his last payment being received on July 7, 1995.
On or about September 5, 1994, claimant entered
a nursing program to acquire an associate degree. Said program was scheduled to
be completed by December of 1995. Claimant requested extended benefits on
August 23, 1995, and was denied. The extended benefits were denied because
claimant's regular benefits had expired prior to her request for extended
benefits for the training program.
When claimant filed for her original benefits
she intentionally replied "no" to the question asking, "Are you
enrolled in school now?" Claimant replied in this manner because she
believed that she could not attend school and collect benefits simultaneously.
Claimant received a booklet from the local
office explaining the 599.2 program, but failed to read same until on or about
August 23, 1995.
OPINION: The credible evidence establishes that
the claimant did not apply for extended benefits until her regular benefits
expired.
Section 599.2 provides in pertinent part that:
"The duration of such additional benefits shall in no case exceed twice
the number of effective days of regular benefits to which the claimant is
entitled at the time the claimant is accepted in, or demonstrates application
for appropriate training."
Therefore, claimant's additional benefits cannot
exceed twice the number of effective days of regular benefits to which the
claimant is entitled to at the time she is accepted.
First and foremost, claimant was never
officially approved/accepted into the 599.2 training program. The local office
did not approve or review claimant's training program, because claimant did not
advise the local office of the training program until after her regular
benefits were exhausted. However, even if claimant's training program was
approved, claimant does not have any effective days of regular benefits
remaining.
Claimant, further contends that she did not
apply for the program earlier because she was not aware of it's existence.
However, the local office did not inform the claimant of the program because
when she filed her original claim she intentionally stated that she was not in
school. Claimant filled out her original claim in this way because she believed
she would not be entitled to benefits if she was in school.
Furthermore, claimant acknowledges receiving the
booklet, which explained the 599.2 program, but failed to read it until August
of 1995.
Therefore, based upon the foregoing, we do not
agree with the Judge because section 599.2 does provide that a claimant must be
approved for the 599.2 program while she still has regular benefits remaining,
in order to be eligible for additional benefits. Accordingly, the Judge's
decision should be reversed.
DECISION: The initial determination of the local
office is sustained.
The decision of the Administrative Law Judge is
reversed.
COMMENTS
1. A training course or program cannot be approved by the
Commissioner of Labor until the Commissioner of Labor is made aware of the
training. Under no circumstances can claimant be found eligible for additional
benefits under Section 599.2 when claimant's attendance in a training program
was not disclosed and no request for approval had been made.
2. In this case, claimant had no days of regular benefits remaining
when her request for approval under Section 599.2 was made. Therefore, no
additional benefits under Section 599.2 were payable.
3. It should be noted that the subsequent revision of Regulation 482
effective January 26, 1996, explicitly articulates this condition for approval.
Section 482.2(e) now reads:
"Demonstrates application for appropriate
training means the date on which the claimant applies, in writing to the
Commissioner requesting approval to participate in a training course in which
the claimant has been accepted."
This definition changes the date claimant
demonstrates application for appropriate training from the date the claimant
applied to the school to the date the claimant applies to the local office.
Operationally, this date will usually be the same as the calculation
date. This regulation was obsoleted October
1996
In determining the amount of additional benefits
to which the claimant is entitled, the earliest calculation date that can be
used is the date the Commissioner (local office) is advised of and subsequently
approves such training. Therefore, prior references to determining the
calculation date referred to in Field Memorandum 2-95 should be marked obsolete
and should no longer be followed.
4. A more recent Appeal Board decision (AB 462,207, 7/9/96, not
reported) made subsequent to the revision of applicable Rules and Regulations,
Section 482.2(e), reaffirmed this principle.
Index No. 1010.11
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
October 1996
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
HEARINGS AND APPEALS
Timeliness
INCARCERATED CLAIMANT
Claimant’s
failure to request a hearing within 30 days of the initial determination is not
excused by claimant’s incarceration, since claimant was not prevented by
physical condition or mental incapacity from filing a hearing request.
AB 455,169
By
initial determinations of the local office, the claimant was disqualified from
receiving benefits because of a voluntary leaving of employment without good
cause effective October 30, 1993; charged with a recoverable overpayment of
$508 in benefits and a $58 recoverable overpayment based upon a previous claim
and determination; and claimant’s right to future benefits was reduced by eight
effective days because claimant wilfully made a false statement. The
claimant requested a hearing. The Commissioner of Labor interposed a
preliminary objection that the hearing request was not made within the
statutory period.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard. There was an appearance on behalf of the
employer. The claimant was not present. By default decision dated August 15,
1995 (A.L.J. Case No. 095-24566) the Administrative Law Judge sustained the
initial determinations.
The
claimant applied to reopen and reconsider the decision of the Administrative
Law Judge filed August 15, 1995. Upon due notice to all parties a further
hearing was held at which all parties were accorded a full opportunity to be
heard and at which testimony was taken. There were appearances by the claimant
and the employer. By decision dated October 4, 1995 the Administrative Law
Judge granted the claimant’s application to reopen A.L.J. Case No. 095-24566;
overruled the Commissioner of Labor’s timeliness objection; overruled the
initial determinations regarding a voluntary leaving of employment without good
cause, recoverable overpayment of $506 in benefits and a wilful false
statement; and sustained the initial determination of a $58 overpayment.
The
employer appealed the judge’s decision to the Board. In connection with its
review of the case, the Board has considered the arguments contained in the
written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a cook at the employer’s snack bar.
An initial determination disqualifying the claimant because of a voluntary
leaving of employment without good cause was mailed to the claimant’s home on
March 31, 1994. The claimant was incarcerated at that time. The initial
determination was received by the claimant’s mother shortly after March 31,
1994. The claimant’s mother read the initial determination to the claimant over
the telephone shortly after receiving it. The claimant disagreed with the
initial determination but did not request a hearing at that time. The claimant
remained incarcerated until November 3, 1994. On December 5, 1994 the claimant
mailed a letter to the Board requesting a hearing. The claimant is not nor was
not physically or mentally incapacitated at any time relevant herein.
OPINION: The credible evidence
establishes that the claimant’s request for a hearing is untimely. The initial
determination of the local office was mailed to the claimant on March 31,1994.
Claimant received notice thereof shortly thereafter, when his mother read the
determination to him over the telephone. He appealed that determination by
written notice mailed on December 5, 1994.
Section
620.10(a) of the Labor Law prescribes, 9in relevant part, the right to request
a hearing as follows:
A
claimant who is dissatisfied with an initial determination of his claim for
benefits may, within 30 days after the mailing or personal delivery of the
notice of such determination, request a hearing. The referee may extend the
time fixed for requesting a hearing, upon evidence that the physical condition
or mental incapacity of the claimant prevented the claimant from filing an
appeal within 30 days of the initial determination.
Labor
Law Section 620.1(a) does not extend the time for requesting a hearing in this
matter as the claimant was not physically or mentally incapable of filing a
request for a hearing. Since the claimant’s hearing request was not filed
within the 30 day statutory period, the claimant’s hearing request was
untimely.
DECISION: The Commissioner of
Labor’s timeliness objection is sustained.
The
initial determinations of the local office are continued in effect.
The
decision of the Administrative Law Judge insofar as appealed from is reversed.
COMMENTS
- It is noteworthy that in this case claimant conceded
receipt of the determination at his home address, and conceded that he was
aware of the determination promptly by his mother. Claimant is not excused
from the requirement to make a hearing request within 30 days merely
because he was incarcerated.
- The Appeal Board has long held that neither incapacity
to work, nor unavailability to work constitute sufficient conditions for
excusing an untimely protest of an initial determination. The language of
the law is explicit that an extension of the 30 day limit can only be
based on a "physical condition or mental incapacity" that prevents claimant
from making a hearing request.
Index 940.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
OCTOBER 1996
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Shared Work
Corporate Officer/Shared Work Program
CORPORATE OFFICER/SHARED WORK PROGRAM
Corporate
principals are not eligible to receive benefits pursuant to the Shared Work
Program.
AB 431,477
By
initial determination of the local office, the claimant was ruled ineligible to
receive benefits effective July 27, 1992, because he did not meet the
eligibility requirements of the Shared Work Program pursuant to Section 604 of
the Labor Law. The claimant requested a hearing.
The
Administrative Law Judge held hearings at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the Commissioner of Labor. By decision
dated July 8, 1993 the Administrative Law Judge overruled the initial
determination.
The
Commissioner of Labor appealed the Judge's decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in the
written statements submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS
OF FACT: The claimant is the president and sole shareholder of a corporation
which manufactures air-conditioning and heating equipment. It employs about 80
people. After experiencing a downturn in business, the employer applied for and
was approved for participation in the Department of Labor's Shared Work
Program. Thereafter the claimant closed the business each Friday, and along
with the rest of the employees took a 20% reduction in salary. Although the
company offices were closed on those Fridays, the claimant retained access to
them and could have worked for the business if he chose to.
OPINION:
The Shared Work Program (Sections 602-611 of the Labor Law) was enacted so that
unemployment insurance benefits could be paid to workers who have had their
hours and pay reduced pursuant to plans in which the employer, otherwise faced
with layoffs, spreads the available work by reducing the number of regularly
scheduled hours for all employees. Part of the statutory plan allows claimants
to lack total unemployment for the shared work employer. However, the
Commissioner of Labor contends that the program should not be interpreted so as
to cover corporate officers and/or major shareholders. The statute contains no
reference as to whether claimants who are corporate principals are to be
accorded its benefits. Section 604 of the Labor Law lists the eligibility
conditions for the program and provides in pertinent part, "A claimant
shall be eligible for benefits under this title if he works less than his
normal full time hours in a week for his customary employer, and that employer
has reduced or restricted the claimant's weekly hours of work...". We
conclude that the statute contemplates an employer who stands separate and
apart from the claimant whose hours are being reduced. This claimant, as the
corporate president and the sole shareholder, does not stand in such a relation
to the employer.
Furthermore,
we agree with the Commissioner that the situation presented herein is analogous
to that in a long line of cases dealing with the eligibility of corporate
officers to collect regular unemployment benefits. The Court and the Board have
consistently held that when it is within the power of the persons who control a
corporate business to determine the extent of their involvement in the business
and the compensation they receive, then the eligibility of such persons for
unemployment benefits becomes suspect (Matter of Hirsch, 29 AD 2d 702;
Appeal Board 363583, Appeal Board 393843). We conclude that corporate officers
who apply for benefits under the shared work program should be subject to the
same scrutiny.
In
cases concerning corporate principals who claim benefits, it has also been held
that such a person who stands to gain financially from the continued operation
of his business is not totally unemployed regardless of his actual activity
during a period when he is claiming benefits (Matter of DeVivo, 51
AD 2d 619); Appeal Board 404196, Appeal Board 404358). Again, we conclude that
it is appropriate to apply the same standard to corporate principals in shared
work cases.
Accordingly,
we agree with the Commissioner that corporate principals should not be deemed
eligible to receive benefits pursuant to the Shared Work Program. It is obvious
that the claimant could control the extent of his involvement in the business
as well as the level of his compensation, and clearly stood to gain from its
continued operation. In addition, that the claimant took the same 20% reduction
in pay and hours as the rest of the employees, does not persuade us
otherwise, as he could eventually choose to reimburse himself after the termination
of his company's participation in the Shared Work Program. We perceive no
compelling reason to interpret the statutes so as to allow benefits in
situations where corporate principals would not be eligible to receive regular
unemployment insurance benefits. In fact, we believe that the statute should
not be interpreted in a way which would encourage corporate principals to
refrain from the business of the corporation and thus hinder the ability of the
business to recover from the circumstances which led to participation in the
program in the first instance. Under all of these circumstances, we conclude
that the claimant did not meet the eligibility requirements of the shared work
program.
DECISION:
The initial determination of the local office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
1.
The Court had long since held that a corporate principal who stands to gain
financially from the continued operation of the businesses is ineligible for
regular benefits during off-seasons, temporary idle periods, or times of
minimal activities because of a lack of total unemployment. This principle
applies to corporate principals who claim shared work benefits under Sections
602-611 of the Unemployment Insurance Law.
2. In
this case, and in another separate decision in a similar matter, the Board
explicitly acknowledges that it would be "incongruous to...encourage
corporate principals to refrain from the business of the corporation, thus
hindering the ability of the business to recover from the circumstances which
led to its participation in the Shared Work Program in the first instance"
(AB 413,448, not reported).
Index No. 915A.10
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSRUANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 1997
INTERPRETATION SERVICE –
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Reduction due to pension
Pension or retirement payment
CONTRIBUTIONS BY THE EMPLOYER
A
claimant is subject to a benefit rate reduction as a result of a pension
payment made from a union pension plan where union members voted to determine
what amount out of the base pay package is contributed to the pension plan,
since the contributions were made by the employer.
AB 454,956A
The
Commissioner of Labor has applied to the Board, pursuant to Section 534 of the
Labor Law, to reopen and reconsider its prior decision which was mailed and
filed on March 23,1995 (Appeal Board No. 447389), which reversed the decision
of the Administrative Law Judge filed January 25,1995 (A.L.J. No. 394-11642),
which sustained the initial determination by which the claimant’s benefit rate
was reduced from $300 to $165 per week, effective November 14, 1994, because of
his receipt of pension, pursuant to Section 600.7 of the Labor Law.
Due
deliberation having been had, the Board has determined to reopen and reconsider
its prior decision. In connection with its review of the case, the Board
considered the arguments made in the written statement submitted on behalf of
the Commissioner of Labor in its application to reopen.
Now,
based on all of the foregoing and on all of the proceedings heretofore had
herein, the Board makes the following
FINDINGS OF FACT: The claimant worked as a carpenter for thirty-one years. He was
a member of a union. The union negotiated a base pay package covering wages and
benefits for its members with the employers’ association in the area. It was
agreed that a set amount of money would be available on an hourly basis for
this package of wages and benefits for each employee.
From
this amount, the union members voted on how much to receive as wages and how
much was to be contributed by the employer to various benefit plans, including
the pension plan. Once the amount to be contributed to the pension plan was
decided, the employers made the contributions directly to the union which
operated the pension plan. The amounts paid into the pension plan were not
treated as wages and so employees were not subject to withholding taxes on the
amounts contributed to the pension plan.
The
claimant filed an original claim for benefits effective January 3, 1994. As of
June 1994, the claimant began a pension of $586 per month from his union
pension fund. The claimant’s employment in his base period of January 4, 1993
through January 2, 1994 increased the amount of his pension. The claimant filed
an additional claim for benefits effective November 14, 1994. The pro-rated
weekly amount of claimant’s pension was $135.
OPINION: Upon reconsideration,
the evidence establishes that union members, including claimant do not
negotiate and receive a total hourly wage from which contributions to various
benefit plans are then made, rather, union members negotiate a base pay
package. The membership then votes on how much of the package will be received
as wages and how much will be contributed by the employer to various plans, including
the pension plan. When the amounts are settled upon the membership, the
contributions to the pension plan are then made by the employers out of their
own funds, not from employees wages. We note that contributions to
the pension plan are not treated as wages for tax purposes. We further note
that claimant and other individual members of the union never have direct
control over these funds, having only a right to vote, as part of the
membership, on how the package should be divided. Accordingly, we conclude that
the claimant’s pension plan is funded 100% by employer contributions. (See
AB 328368A, December 17, 1981; AB 348855, October 9, 1994). Accordingly,
as the claimant’s base period employment increased the amount of benefits he
was entitled to from the pension plan, and we conclude that the employers were
the sole contributors to such fund, Section 600.7 of the Labor Law requires
that the claimant’s benefit rate be reduced by 100% of the pro-rated weekly
amount of that pension. Accordingly, we conclude that the claimant’s benefit
rate of $300 was properly reduced by $135 to $165 per week.
DECISION: The decision of the
Board filed March 23,1995 (AB 447389), is hereby rescinded.
The
initial determination of the local office is sustained.
The
decision of the administrative law judge is affirmed.
COMMENT
The
amounts paid into the pension plan were determined by union membership vote,
but the contributions were made directly by the employer to the union which
operated the pension plan. The payments into the pension plan were not taxed as
wages.
Index 915B
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY 1997
INTERPRETATION SERVICE -
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Reduction due to pension
Amount of reduction
CORRECTION
A
pension based upon military service not in the base period does not result in a
pension reduction, even when claimant's Federal civilian employment in the base
period does result in a pension reduction due to receipt of a civilian pension.
COMMENTS
- The prior Index entry at 915B 4 is not in compliance
with Section 600.7 of the Unemployment Insurance Law. That entry is
deleted, and a replacement entry has been substituted.
- Procedure III 21117B does reflect the effect of the
statutory revision made in 1983, which made obsolete this former method of
calculation of a pension reduction for Federal pensions.
Index 950.1
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
FEBRUARY 1997
INTERPRETATION SERVICE -
BENEFIT CLAIMS
DETERMINATION OF BENEFITS
SEAP
SEAP - Self Employment Assistance Program
Applicants
for enrollment in the Self Employment Program must be eligible for regular
unemployment insurance benefits.
AB 452,496
By
initial determination of the local office, the claimant was held ineligible to
receive benefits because claimant was not totally unemployed effective May 1,
1995. By further determination dated May 9, 1995, he was held ineligible to
participate in the Self Employment Assistance Program. The claimant requested a
hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to he heard and at which testimony was taken. There was an
appearance by the claimant. By decision dated July 6, 1995 the Administrative
Law Judge sustained the initial determinations.
The
claimant appealed the judge's decision to the Board.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant has a lengthy history of employment as a real
estate appraiser with a state agency. While so employed, he incorporated a
business in which he was to work independently as an appraiser and property tax
consultant in March 1993. Although the claimant purchased a listing in the
yellow pages, invested approximately $10,000 in the venture and appointed
himself president, the business remained largely dormant until March of 1995.
At that time, the claimant learned that he would soon be laid off from his
state job. As a result, he initiated plans to reactivate his corporate venture.
In anticipation of his lay-off on April 28, 1995, he last worked for the state
on April 10, 1995 and thereafter used accrual leave time to devote his full
efforts to reactivating his business. During the month of April, he purchased a
computer and printer for the enterprise, secured assessment files for his tax
consultancy and performed his first appraisal. He subsequently worked in the
business approximately 6 days a week, eventually securing some 50 clients. The
claimant filed his claim for benefits effective May 1, 1995 and thereafter
applied for participation in the Self Employment Assistance Program (SEAP).
Through the date of the hearing herein, he has continued to operate his
business on a regular, full time basis.
OPINION: The credible evidence
establishes that, at the time the claimant filed for benefits and thereafter,
he was actively engaged in the full-time operation of his own business venture.
We conclude that the claimant was not totally unemployed during the period in
issue, and not eligible for benefits. We note whether claimant generated a
profit in operating his business is not dispositive of the issue whether he was
totally unemployed, since he stood to gain financially from his
activities (Matter of Witham, 134 AD 2d 752 and Matter
of Devivo, 51 AD 2d 619).
Furthermore,
pursuant to the requirements for enrollment in the Self Employment Assistance
Program, applicants must be eligible for and receiving regular unemployment
insurance benefits. Since by virtue of his lack of total unemployment, the
instant claimant was not eligible for benefits when he applied for enrollment
in SEAP, he was properly denied participation in that program.
DECISION: The
initial determination of the local office is sustained. The decision of the
Administrative Law Judge is affirmed.
COMMENT
In
order to be eligible to participate in SEAP, claimant's eligibility for regular
unemployment insurance benefits must be certain. In this case, claimant was
ineligible for benefits as of the effective date of the claim, because he
already had an established, active business and therefore lacked total
unemployment.
Index 755 C.6
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MARCH 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
AVAILABILITY
Restrictions of Employment
Arrangement of Full Time Hours
Religious Observance
Claimant
cannot be denied full benefits because of a lack of availability to work on a
specific day of the week due to religious observance.
AB 459,582
By
initial determination of the local office, the claimant was held eligible to
receive benefits without any disqualifying conditions effective December 25,
1995. The employer requested a hearing contending that the claimant should be
held ineligible to receive benefits because the claimant was not available for
employment.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the employer. By decision dated
February 20, 1996 the Administrative Law Judge sustained, effective December 25,
1995 through February 20, 1996, the employer's objection for one effective day
per week, and as so modified, sustained the initial determination.
The
Commissioner of Labor appealed the judge's decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in
the written statement submitted.
FINDING OF FACT: The claimant began employment, and is still employed, in a
bagel shop starting in August, 1995. The claimant was initially hired as a
full-time employee to work Monday through Friday, from 5:45 a.m. to 2:00 p.m.
At hire, she informed her employer that she would be unable to work on
Saturdays due to her religious beliefs, and that she preferred not to work on
Sundays. Due to a medical problem in October 1995, the claimant requested to
work only three days a week. The employer permitted the claimant to switch her
hours with her sister, a co-worker, to Tuesday, Wednesday and Friday, from 7:00
a.m. to 2:30 p.m. Shortly after the claimant began working three days a week,
she informed her employer that she would need some Wednesdays off for doctor
appointment.
In
late November, the employer began scheduling the claimant for one or two days a
week, instead of three, because it had hired another person to accommodate the
claimant's scheduling requests. In early December, the claimant asked her
employer to give her more hours. The claimant assured her employer that she
would give them three weeks advance notice of any future doctor appointments,
so that she would be available on any day, including Sundays, with the
exception of Saturdays. The employer has been unable to accommodate the
claimant's request for more hours because of its hiring of another person to
accommodate the claimant's scheduling requests. Therefore the claimant has only
been working on Tuesdays.
OPINION: The credible
evidence establishes that the claimant is available for work six days a week, except
Saturdays when she is not available due to religious obligations. The Board has
held that, in the absence of any compelling State interest justifying the
infringement of religious liberties, the State cannot deny Unemployment
Insurance benefits because of conduct mandated by religious beliefs (AB
452,775). Accordingly we find that the claimant cannot be denied Unemployment
Insurance benefits because of her lack of availability on Saturdays due to
religious observances.
Additionally,
under Section 161 of the Labor Law, the claimant is entitled to at least 24
consecutive hours of rest in the calendar week. The claimant has indicated that
she is now available six days a week. Therefore, claimant would not be required
to work more than six days per week for the employer, even if the employer had
work for the claimant in excess of six days per week. Accordingly, we find that
the claimant is available for employment six days a week, with the exception of
Saturday.
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
- Refraining from work on a specific day of the week due
to religious beliefs does not make the claimant ineligible for benefits
for one effective day per week. The Labor Law requires that every worker
be allowed at least twenty-four consecutive hours of rest in any calendar
week.
- Requiring that a claimant be willing to work on any day
that an employer may have work would be an infringement on claimant's
exercise of religious liberties.
- See also A-750-2017, regarding Refusal of Employment.
Index 1620.6
1137.6
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MARCH, 1997
INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Conscience
MISCONDUCT
Civil Rights
Religious Beliefs and Separation from Work
Refusal
to attend work or to perform tasks which would violate one's religious beliefs
is not disqualifying.
AB 452,775
By
initial determination of the local office, the claimant was held eligible to
receive benefits without any disqualifying conditions by initial determination
dated June 2, 1995. The employer requested a hearing contending that the
claimant should be disqualified from receiving benefits because of a voluntary
leaving of employment without good cause.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were appearances
on behalf of the claimant and of the employer. By decision dated July 18, 1995
the Administrative Law Judge overruled the initial determination and sustained, effective
April 23, 1995, the employer's objection to claimant's entitlement.
The
claimant appealed the judge's decision to the Board.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked as a waitress for the employer from
November 1994 through April 22, 1995. When the claimant was hired she told the
employer that she did not celebrate holidays because of her religious beliefs
as a Jehovah's Witness. The employer accommodated her restrictions. For
instance, she was not required to wear festive hats on New Year's Eve as was
other staff. On her last day at work, claimant saw a cake with happy birthday
written on it in the employer's kitchen. She quickly informed the employer that
she could not serve such a cake as her religious beliefs prohibited her from
participating in birthday celebrations. She suggested to her
employer that another server handle the party group or at least the serving of
the cake. While the employer served the cake that evening for claimant, the
employer could not accommodate claimant's religious beliefs on this matter in the
future. The restaurant was small and operated at times with claimant as the
only server and the employer was not always available to help out. The employer
had other birthday parties scheduled and claimant was on notice that she would
have to be prepared to serve these customers. Claimant told the employer she
would have to quit. She finished her shift and left her employment.
OPINION: The credible
evidence establishes that the claimant voluntarily left her employment because
the employer could not relieve her from having to serve birthday cakes to
customers, which act would violate her religious beliefs. The claimant took
reasonable steps to protect her employment by suggesting alternative
arrangements to the employer but due to the employer's size the employer,
acting in good faith, could not reasonably accommodate claimant's religious
beliefs. In the absence of any compelling State interest justifying the
infringement of religious liberties, the State cannot deny unemployment
insurance benefits because of conduct mandated by religious belief.
Accordingly, we conclude that the claimant voluntarily left her job with good
cause.
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
- Claimant in this case had advised the employer at the
time of hire of her religious beliefs. Based on her beliefs, she would not
perform specific tasks. When the employer advised her that it would no longer
accommodate her restrictions, claimant quit her job with good cause.
- In another case (AB 433,355, not published) claimant's
continued refusal to work on Sundays because of his religious beliefs is
not misconduct. Claimant need not document membership in an established
religious sect to demonstrate a sincerely held religious belief.
- See also A750-2017, regarding Refusal of Employment
Index 1185.14
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JULY 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Violation of Company Rule
SALE OF ALCOHOL -UNDERAGE CUSTOMER
Failure
to follow the employer's procedures to establish the age of a customer
attempting to buy an alcoholic beverage is misconduct.
AB 454,907
By
initial determination of the local office, the claimant was disqualified from
receiving benefits, effective July 8, 1995 because of a loss of employment
through misconduct in connection therewith. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There were
appearances on behalf of the claimant and of the employer. By decision filed
September 18,1995 (A.L.J. 195-07684), the Administrative Law Judge
overruled the initial determination.
The
Commissioner of Labor appealed the Judge's decision to the Appeal Board. In
connection with its review of the case, the Board considered the arguments
contained in the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant, a sales clerk, worked for a convenience store
for approximately two years, until July 7, 1995. He worked full time and earned
$5.85 per hour. Part of claimant's duties included selling the employer's
merchandise to the employer's customers. On at least two occasions in 1993
claimant was specifically advised, in writing, that the sale of alcohol to
individuals under 21 years old was prohibited. He was further advised that the
law and the employer required that proof of age was required before the sale
could be made. Claimant was advised what forms of identification were
acceptable and that absent such acceptable proof, no sale should be made. The
policy further provided that the sale to an underage individual would result in
immediate suspension or termination from employment.
In
1994, the employer conducted an internal test to ascertain whether its rules
were being complied with. An underage individual was sent to claimant's store
and attempted to buy an alcoholic beverage. Claimant accepted the bottle from
the individual and began wrapping it for sale without asking for any
identification. A coworker then intervened and asked for identification.
Claimant received a warning for this incident.
On
June 28, 1995, the employer conducted another internal test. An 18 year old
individual was sent into the store in which claimant was working. The claimant
sold the individual an alcoholic beverage without asking for any
identification. Claimant was discharged on July 7, 1995, for his violation of
the employer's rule requiring identification and for his sale to an underage
individual.
OPINION: The credible
evidence establishes that claimant sold an alcoholic beverage to an 18 year old
individual on June 28, 1995, without asking for identification, in violation of
the prohibition of such sales. Claimant's failure to take the mandatory
precautions, of which he was fully aware, clearly rises to the level of
misconduct. Moreover, we note that claimant had previously received a warning
regarding this issue. Accordingly, we conclude that claimant's failure to
follow appropriate procedures to establish the age of the customer constitutes
act of misconduct. He is, therefore, subject to the disqualification imposed.
DECISION: The
initial determination of the local office is sustained.
The
decision of the Administrative law Judge is reversed.
COMMENTS
- The sale of an alcoholic beverage to an underage customer
is an illegal act. Because of this, and the resultant liabilities for
legal penalties, all salespeople handling such transactions can reasonably
be required to follow their employer's control procedures carefully and
diligently. Failure to follow such procedures can foreseeably result
in a violation of law. Penalties for violation of the law include fines
for both the business and the salesperson, and the loss of the license to
sell alcohol.
- It should be noted that while the New York State Liquor
Authority (SLA) does penalize both the business and the sales employee for
an improper sale of alcohol, the SLA does not define specific procedures
for vendors to follow. It is up to the store (the employer) to establish
and enforce procedures to be followed.
- In this case, the employer had established specific
guidelines to be followed to safeguard against sale of beer to underage
customers. Claimant knew, and failed to follow, employer's rules.
- The same principles are equally applicable to the sale
of tobacco/tobacco products.
Index 1645 B.1
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After a Delay
Intent to Relocate With
Spouse
Claimant
must show a compelling reason for the spouse's relocating, for a voluntary quit
to follow the spouse to be with good cause. In addition, claimant must have
formed an intent to relocate with the spouse at the point of the
spouse's departure.
Matter of Howe, 188 AD 2d 982, decided December 31, 1992
Appeal
from a decision of the Unemployment Insurance Appeal Board, filed October 4,
1991, which ruled that claimant was disqualified from receiving unemployment
insurance benefits because he voluntarily left his employment without good
cause.
Claimant
admitted that when his family first moved from New York City to Florida in
August, 1990, he intended to visit them regularly once or twice each month. He
also stated that the family moved there because of Florida's "warm
climate" and due to New York City's "rising violence". It was
only when his request for a leave of absence to help with the relocation was
denied that he resigned from his employment in December 1990. Claimant could
have stayed in New York and continued working for his employer. Under the circumstances,
there was substantial evidence to support the conclusion by the Unemployment
Insurance Appeal Board that there was no compelling reason for claimant's
relocation to Florida, that it was a matter of personal preference and that
there was also no compelling reason for the leave of absence (see, Matter of
Ludwig [ Levine], 52 AD 2d 709; Matter of Rakossy [Levine],
50 AD 2d 659; Matter of Jensen [Levine], 49 AD 2d 794).
The Board noted that claimant had originally intended to keep his job in New
York and that there was no change in his family's situation in Florida since
their relocation there without him which would compel him to make an
extended visit to Florida.
Mikoll,
J.P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur.
ORDERED
that the decision is affirmed, without costs.
COMMENT
In repeated references to this case in later
decisions, the Appeal Board identified these principles as centrally important:
claimant's spouse must have had a compelling reason for relocating and claimant
must have formed an intent to relocate with the spouse.
Index 1645 B.2
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After a Delay
Evaluating a Temporary Delay
Claimant
may have good cause to quit employment, to rejoin a spouse who had relocated
for good cause at an earlier time, if the temporary delay in following the
spouse was due to a compelling reason, and was limited to a reasonable length
of time. Claimant must act responsibly and diligently to resolve the causes of
the delay.
AB 467,740
By
initial determination of the Out-of-State Resident Office, the claimant, a
former Federal employee filing under Chapter 85, Title 5 of the U.S. Code, was
disqualified from receiving benefits, effective June 29, 1996, because of a
voluntary leaving of employment without good cause. The claimant requested a
hearing.
The
Administrative Law Judge held a hearing at which all parties were accorded a
full opportunity to be heard and at which testimony was taken. There was an
appearance by the claimant. By decision filed October 17, 1996 (A.L.J. Case
No.096-32195), the Administrative Law Judge overruled the initial
determination.
The
Commissioner of Labor appealed the Judge's decision to the Appeal Board. In
connection with its review of the case, the Board considered the arguments
contained in the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDING OF FACT: The claimant was employed as an engineer by a federal agency
for two years, until June 28, 1996. In October 1995, her husband went to Puerto
Rico to undertake the management of a retail electronics business that he
co-owned with his brother. Since her husband's long term plans were not then
settled, the claimant kept her job in New York and continued residing there
with her children. After visiting each other on a number of occasions during
the months that followed, the claimant's spouse decided in December 1995 to
reside permanently in Puerto Rico and the claimant determined to relocate there
to reunite their family. She placed their New York home on the market and
notified her employer that she would be leaving her employment as soon as she
sold her home and her eldest child finished his first year of school. When the
claimant had not secured a buyer for her house by May 1996, she arranged to
rent the dwelling instead. Following the end of the school year, the claimant
resigned from her job and relocated with her children on July 6, 1996.
OPINION: The credible
evidence establishes that the claimant quit her job to follow her husband to
another locality. The Board has long held that a claimant may establish good
cause for leaving employment to follow a spouse to another locality, if the
spouse had good cause to relocate in the first instance. More specifically, we
have ruled that a spouse's relocation to undertake employment provides good
cause, under the law, for a claimant to quit employment to follow (see Appeal
Board 382,135; 383,990 and 394,536). In the case now under review, it is
uncontested that the claimant's husband relocated to Puerto Rico to undertake
the management of a business in which he had a substantial financial interest.
The
Commissioner of Labor contends that, while the claimant may have had good cause
to quit her job to follow her husband at the time he relocated, or shortly
thereafter, she did not do so; but decided, for personal reasons, to keep her
job and live apart from her spouse for months after his relocation. Having
chosen to live apart, the Commissioner argues, the claimant should be denied
benefits, absent a showing of some significant intervening change in her
circumstances which would provide good cause for her to abandon her job and her
separate living arrangement, to reunite with her spouse.
In
support of its position, the Commissioner cites Matter of Howe (188
A.D. 2d 982, aff'g A.B. 403,319). In that case, the Court held that a
claimant who decided to retain his employment in New York and live apart from
his wife and children, after they relocated to Florida for reasons of personal
preference, did not have good cause to quit his job to move with them or to
follow them later. The Court reasoned that when the claimant relocated four
months after his spouse, because his employer denied him an extended leave of
absence to visit his family over the Christmas and New Year holidays, there had
been no significant intervening change in their circumstances to warrant
relocation. The Commissioner also cites numerous Board rulings issued since Howe which
support the proposition now advanced by the Department of Labor.
Upon
a careful consideration of the facts and issues under review, and upon
reexamination of our recent past rulings, the Board concluded that the facts
in Howe (supra) are distinguishable from those in the case now
before us. In the first place, the spouse in the Howe case
relocated for a patently noncompelling reason, whereas the spouse in
the case now before us moved for employment purposes which, as noted have long
been deemed good cause. Secondly, whereas claimant Howe originally intended to
live apart from his family indefinitely, if not permanently, at the point at
which the instant claimant's spouse determined to reside permanently in Puerto
Rico, the claimant decided merely to postpone following him for a temporary, if
indeterminate, period of time, to be measured by the occurrence of specific
events; namely, the marketing of her New York home and the completion of her
child's school year.
Notwithstanding
past Board rulings to the contrary, to which we no longer adhere, we now reason
that a claimant who delays in fulfilling his intent to leave his employment to
follow a spouse who has relocated for good cause shown, should not be precluded
from benefits by virtue of the delay alone, provided it is established that the
claimant's delay was for a compelling reason and for a reasonable length of
time, under the circumstances. To meet this standard, it must be demonstrated
that the claimant acted reasonably and diligently to resolve the cause of his
delay, to the extent that it was in his power to do so.
Furthermore,
we conclude that a conscientious effort to expeditiously market and sell a
primary residence constitutes good cause for a claimant to wait to follow a
relocated spouse, in recognition of the fact that a home is often a family's
most significant financial asset. We believe that any policy tending to
discourage a claimant from acting responsibly to preserve the value of such an
important asset, is against the public interest. Likewise, we feel
that the potential harm to a claimant's child, arising from being displaced in
the middle of a school year, is sufficiently demonstrable to justify delaying
relocation until summer recess. This is particularly so, in view of the
differences in academic curricula from state to state.
Therefore,
we find that the claimant had good cause to follow her spouse to a different
locality in the first instance, given his employment obligations there; and had
good cause to delay in following thereafter, until her child finished the
school year, by which time she had arranged for the rental of her New York
dwelling. Accordingly, her employment ended under nondisqualifying conditions.
DECISION: The
initial determination of the Out-of-State Resident Office is overruled.
The
decision of the Administrative Law Judge is affirmed.
COMMENTS
- In this and further decisions on this topic, the Appeal
Board identified two critical factors as determinative of the
considerations of "good cause": claimant's delay must be for a
compelling reason and must be limited to the shortest reasonable time.
- Although claimant's husband first went to Puerto Rico
in October, he decided in December to relocate permanently. Claimant
formed her intent in December.
- In this case, the Appeal Board identifies two causes
for this claimant's delay in relocating, and evaluates both against the
criteria discussed above. Claimant tried to sell the family home, and she
waited for her children to finish their school year. Both causes for
claimant's delay were identified as compelling; both were limited to a
reasonable length of time.
- Rulings on a variety of specific causes for such delays
are further discussed in subsequent A750's.
Index 1645 B.3
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After a Delay
Efforts To Sell
a Primary Residence
When
claimant intends to follow a spouse who relocated for good cause to another
locality, a temporary delay due to efforts to sell a primary residence is not
disqualifying, provided these efforts are conscientious and expeditious.
A.B. 469,653
By
initial determination of the local office, the claimant was disqualified from
receiving benefits, effective November 1, 1996, because of a voluntary leaving
of employment without good cause. The claimant requested a hearing.
The
Administrative Law Judge held a telephone conference hearing at which all
parties were accorded a full opportunity to be heard and at which testimony was
taken. There were appearances on behalf of the claimant and of the employer. By
decision filed January 2, 1997 (A.L.J. Case No 396-11786), the Administrative
Law Judge overruled the initial determination.
The
employer appealed the Judge's decision to the Appeal Board. In connection with
its review of the case, the Board considered the arguments contained in the
written statements submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked as a sales assistant for a corporate
employer for nine years, until October 31, 1996. In May 1996, her husband
undertook employment in Georgia. At that time, the claimant decided not to quit
her job in New York to move with her spouse, because she wanted to oversee the
sale of their home before relocating. One week before her husband's departure,
they placed their home on the market and secured the services of a professional
realtor. At that time, the claimant notified her employer that she would be
leaving her job as soon as the house was sold. After securing a buyer some
months later, she quit her job, packed her belongings and moved on November 15,
1996, the date on which she finalized the transfer of her house.
OPINION: The credible
evidence establishes that the claimant quit her job to follow her spouse to
another locality, some six months after his relocation. The Board has
previously held that a claimant has good cause to leave their employment to
move with their spouse to another locality, if the spouse relocates to
undertake employment (Appeal Board 382,135; 383,990 and 394,536). In the
instant case, it is uncontested that the claimant's husband moved to Georgia
solely in order to begin working there.
The
Commissioner of Labor contends that, while the claimant might have had good
cause to quit her job to follow her husband at the time he relocated, or
shortly thereafter, she did not do so; but decided, for personal reasons, to
keep her job and live apart from her spouse for months after his relocation.
Having chosen to live apart, the Commissioner argues, the claimant should be
denied benefits, absent a showing of some significant intervening change in
circumstances which would provide her with good cause to abandon her job and her
separate living arrangement, to reunite with her spouse.
The
Commissioner cites the ruling of the Court in Matter of Howe (188
A.D. 2d 982, aff'g A.B. 409,319) in support of its arguments. In that
case, the Court held that a claimant who decided to retain his employment in
New York and live apart from his wife and children, after their relocation to
Florida, did not have good cause to quit his job to follow them four months
later, because there had been no material change in their circumstances, in the
interim. The Board has recently reexamined its application of the rule of law
enunciated in Howe and has concluded that it should apply only
to claimant who, at the departure of their spouse, decided to live apart
indefinitely, if not permanently. The rule should not preclude from benefits a
claimant who forms an intent to follow their spouse at the point of his
departure, but temporarily delays in fulfilling that intent, provided the delay
is for a compelling reason and for a reasonable length of time (Appeal Board
467,740 and 468,058).
In
the case now before the Board, the record establishes that the claimant
formed an intent to follow her husband to Georgia at the time of his
relocation, but delayed in acting on that intent in order to market and sell
their New York residence. We have recently held that a conscientious effort to
expeditiously convey ownership of a primary dwelling, and thereby preserve its
value, constitutes good cause for a claimant to wait to follow a relocated
spouse, since it is such an important asset (Appeal Board 467,740, supra). The
record now under review shows that the claimant's efforts to sell her house
were conscientious and expeditious, since she promptly placed the property on
the market, engaged a professional realtor and conveyed it as soon as she
secured a buyer. Therefore, we conclude that she left her employment with good
cause and under nondisqualifying conditions.
DECISION: The
initial determination of the local office is overruled.
The
decision of the Administrative Law Judge is affirmed.
COMMENTS
- In this case, at the time her spouse relocated,
claimant demonstrated an intent to rejoin her spouse. The delay
was limited to a reasonable length of time and was due to her efforts to
sell the home. Claimant acted diligently to resolve the cause of the
delay; her "efforts to sell her house were conscientious and
expeditious" (Similarly, AB 469,850A, not published).
- A similar conclusion was drawn in another case (AB
469,460, not published) where claimant abandoned plans to sell the home
after being unsuccessful in her efforts, and arranged to rent the property
instead.
Index 1645 B.4
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay
Children Finishing the
School Year
Claimant
has a compelling reason to delay in following a spouse to another locality in
order to allow a child to finish the school year.
A.B. 467,359
By
initial determinations of the Out-of-State Resident Office, the claimant was
disqualified from receiving benefits because of a leaving of employment to
follow a spouse to another locality effective September 3, 1996; the claimant
was held ineligible to receive benefits because the claimant did not comply
with reporting requirements effective June 24, 1996 through July 7, 1996; the
claimant was held ineligible to receive benefits under Section 590.11 based on
the claimant's school employment effective June 20, 1996; and the claimant was
held ineligible to receive benefits because the claimant was not available for
employment effective July 8, 1996 through July 14, 1996. The claimant requested
a hearing.
The
Administrative Law Judge held a telephone conference hearing at which all
parties were accorded a full opportunity to be heard and at which testimony was
taken. There were appearances on behalf of the claimant and of the employer. By
decision filed October 3, 1996 (A.L.J. Case No. 196-08438), the Administrative
Law Judge overruled the initial determination which disqualified the claimant
from receiving benefits because of a voluntary leaving of employment without
good cause. The Administrative Law Judge sustained the initial determinations
which held the claimant ineligible to receive benefits because the claimant did
not comply with reporting requirements, and ineligible to receive benefits
based on the claimant's school employment under Section 5990.11 of the Labor
Law. The Administrative Law Judge also sustained the initial determination
which held the claimant ineligible to receive benefits because the claimant was
not available for employment, and modified the dates thereof to be effective
from July 1, 1996 through July 31, 1996.
The
Commissioner of Labor appealed the Judge's decision to the Appeal Board, insofar as
it overruled the initial determination of disqualifying the claimant from
receiving benefits because of a voluntary leaving of employment without good
cause. Due deliberation having been had, the Board has determined to reopen and
reconsider the decision of the Administrative Law Judge.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a food service worker by an
educational institution from September 5, 1989 until June 29, 1996. The
claimant worked full time and earned $8.37 per hour.
The
claimant submitted a letter of resignation to the employer on June 24, 1996 in
order to follow her spouse to North Carolina where he had found a permanent
job. The claimant's spouse was laid off in November 1995, when his employer
closed its facility in New York. New York State deemed the claimant's spouse a
dislocated worker, and, among other benefits, gave the couple 90 days, until
approximately the end of February, 1996, in which to sell their home and
relocate.
The
couple had two sons in junior high school. The claimant was unable to sell the
family home within the 90 day period, and in March, 1996, decided to wait until
her sons completed the school year before moving. The spring semester in North
Carolina schools ends approximately one month earlier than New York schools.
OPINION: There having been no
appeal therefrom, it is the law of the case that the claimant is
ineligible from receiving benefits under Section 590.11 of the Labor Law
effective June 20, 1996; that the claimant did not comply with reporting
requirements effective June 14, 1996 through July 7, 1996; and that the
claimant was unavailable for employment from July 1, 9996 through July 31,
1996.
The
credible evidence establishes that the claimant resigned from her employment on
June 24, 1996, in order to follow her spouse to North Carolina where he had
relocated to undertake new employment after his plant closed in New York.
When
the claimant failed to sell the family home by the end of February, the 90 day
period allowed by New York State's dislocated workers' program, her teen-age
sons were in the middle of their second semester of school. It was therefore
reasonable that the claimant delayed moving until July 1, 1996, when their
academic year ended, particularly in light of the fact that the schools in
North Carolina were on a different schedule, wherein the spring semester ended
a month earlier.
Therefore,
under the totality of all the circumstances herein, we conclude that the
claimant had good cause to delay following her spouse to his new employment.
Accordingly, we further conclude that the claimant's employment ended
under nondisqualifying conditions.
DECISION: The initial
determination of the Out-of-State Resident Office disqualifying the claimant
from receiving benefits because of a voluntary leaving of employment without
good cause is overruled.
The
decision of the Administrative Law Judge is affirmed.
COMMENT
In
this and subsequent decisions the Appeal Board held that the potential harm to
a claimant's child, arising from being displaced in the middle of a school
year, is sufficiently demonstrable to justify delaying relocation until summer
recess. This is so in view of the differences in academic curricula from state
to state (See also AB 467,740; A750-2090).
The
attached Interpretation Service Index page contains the rule of this release
and should be filed under the appropriate heading in that index. This A-750
release should be filed by serial number in a separate binder.
Index 1645 B.5
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay
Intent to Live Apart
from Spouse
Claimant who
intends to live apart from her spouse indefinitely, does not have good cause to
quit employment to follow her spouse to another locality at a later time,
unless a new, compelling change in circumstances necessitates the quit.
A.B. 468,058
By
initial determination of the Out-of-State Resident Office, the claimant was
disqualified from receiving benefits, effective August 10, 1996, because of a
voluntary leaving of employment without good cause. The claimant requested a
hearing.
The
Administrative Law Judge held a telephone conference hearing at which all
parties were accorded a full opportunity to be heard and at which testimony was
taken. There was an appearance by the claimant. By decision dated October 25,
1996, the Administrative Law Judge overruled the initial determination.
The
Commissioner of Labor appealed the judge's decision to the Board. In connection
with its review of the case, the Board considered the arguments contained in
the written statement submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant was employed as a bank teller for six years,
until July 21, 1996. In March 1995, her husband transferred to a job in Florida
when his employer downsized its New York operations. At that time, the claimant
decided not to relocate from the house she shared with her children and her
parents, in the hope that her spouse might be able to return to employment in
this state. In this way, she believed she could retain her job, which she
liked, while her children continued attending the elementary school to which
they were accustomed. However, in the last months of her employment, the
claimant and her husband tired of their separate living arrangement, and she
quit her job to reunite their family.
OPINION: The credible
evidence establishes that the claimant quit her job to follow her spouse to
another locality, sixteen months after his relocation. The Board has long held
that a claimant might establish good cause for leaving employment to follow a
spouse to another locality, if the spouse had a compelling reason to relocate,
in the first instance. In particular, we have ruled that a spouse's relocation
to undertake employment constitutes such a compelling reason (see Appeal Board
382,135; 383,990 and 394,536). In the instant case, it is uncontested that the
claimant's husband move to Florida solely because his job was
transferred there.
The
Commissioner of Labor contends that, while the claimant might have had good
cause to quit her job to follow her husband at the time he relocated, or
shortly thereafter, she did not do so; but decided, for personal reasons, to
keep her job and live apart from her spouse for months after his relocation.
Having chosen to live apart, the Commissioner argues, the claimant should be
denied benefits, absent a showing of some significant intervening change in her
circumstances which would provide good cause for her to abandon her job and her
separate living arrangement, to reunite with her spouse. In support of its
position, the Commissioner cites the ruling of the Court Matter of Howe (188
A.D. 2d 982, aff'g A.B. 409,319). We find merit in the Commissioner's
position.
In Howe (supra),
the Court held that a claimant who decided to retain his employment in New York
and live apart from his wife and children, after their relocation to Florida,
did not have good cause to quit his job to follow them four months later,
because there had been no material change in their circumstances, in the
interim. The Board has recently reexamined its application of the rule of law
enunciated in Howe and has concluded that it should apply only
to a claimant who, upon the departure of their spouse, decides to live apart
indefinitely, if not permanently. The rule should not be applied to a claimant
who forms the intent to follow their spouse at the point of his departure, but
temporarily delays in acting upon that intent, for a compelling reason and for
a reasonable length of time, under the circumstances (Appeal Board 467,740).
In
the case now under review, the record clearly establishes that the claimant did
not follow her spouse to Florida until many months after his relocation there, because
she hoped that her husband would return to New York, without any reasonable
expectation of such an eventuality. Therefore, we conclude that she was
properly disqualified from benefits, under the rationale in Howe (supra),
because there was no significant change in her circumstances, after her
decision to live apart from her spouse indefinitely, which might give her good
cause to quit her job to reunite her family. Under the circumstances, the Board
need not reach the issue of whether the claimant would have had a compelling
reason to delay in relocating, had she intended to follow her husband from the
point of his departure. Accordingly, we find that she voluntarily left her
employment without good cause.
DECISION: The initial
determination of the Out-of-State Resident Office is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
1.
Claimant did not decide to follow her spouse to Florida until many months after
his relocation. After her decision to live apart from her spouse indefinitely,
there was no significant change in circumstance which would give her good cause
to quit her job to reunite her family.
2.
Disqualification from benefits also resulted in another case where claimant
extended her delay in relocating so that she could attend to non-compelling
personal matters. While she would have been eligible if she had relocated as
soon as she resolved the compelling causes for her initial delay, she decided
to remain apart from her spouse in order to fulfill certain social engagements.(AB
468,067, not published)
Index 1645 B.6
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July, 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay
Emotional Distress
Claimant who
intended to live apart from the spouse, but suffered emotional distress due to
the separation, has good cause to quit employment in order to rejoin the
spouse.
A.B. 434,814
By
initial determination of the Out-of-State Resident Office the claimant was held
eligible to receive benefits without any disqualifying conditions. The employer
requested a hearing contending that the claimant should be disqualified from
receiving benefits because of a voluntary leaving of employment without good
cause. On behalf of the Commissioner of Labor, it is contended that the hearing
request was not made within the statutory period.
The
Administrative Law Judge held a telephone conference hearing at which all
parties were accorded a full opportunity to be heard and at which testimony was
taken. There were appearances on behalf of the claimant and of the employer. By
decision dated November 9, 1993 the Administrative Law Judge overruled the
objection to timeliness and sustained the employer's objection.
The
claimant appealed that portion of the judge's decision which sustained the
employer's objection to the Board. In connection with its review of the case,
the Board considered the arguments contained in the written statement
submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant's spouse left New York City in July, 1992 to
accept new employment in Florida. They had originally agreed that the claimant
would remain for approximately two years and then join her spouse in Florida.
After ten months, the claimant decided to follow her spouse to Florida because
of her emotional upset due to his absence.
OPINION: Although the
claimant had originally intended to remain for two years, she should not now be
disqualified from receiving benefits because she changed her mind. A leaving of
employment to join one's spouse who had previously relocated because of
accepting employment elsewhere is with good cause. Accordingly, we find that
the claimant is not disqualified from the receipt of benefits.
DECISION: The
initial determination of the Out-of-State Resident Office is sustained.
The
decision of the Administrative Law Judge, insofar as appealed from is reversed.
COMMENT
As
with any other case where claimant alleges a harm to physical or
emotional well-being, appropriate documentation from a physician or mental
health professional is necessary.
Index 1645 B.7
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE
DIVISION
ADJUDICATION SERVICES
OFFICE
July, 1997
INTERPRETATION
SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay
Accommodating the
Employer's Request
If
claimant delayed relocation with her spouse to accommodate her employer's
request, this delay should not result in a disqualification, when quitting at
an earlier date would not have been disqualifying.
A.B. 457,410
By
initial determination of the Out-of-State Resident Office, the claimant was
disqualified from receiving benefits because of a voluntary leaving of
employment without good cause, effective September 30, 1995. The claimant
requested a hearing.
The
Administrative Law Judge held a telephone hearing at which testimony was taken.
There was an appearance by the claimant. By decision dated December 11, 1995
the Administrative Law Judge sustained the initial determination.
The
claimant appealed the judge's decision to the Board.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked as an administrator of a university research
center for twelve years until September 29, 1995. Nine months earlier, her husband
had moved to Florida to undertake employment there. Claimant did not
immediately relocate with her spouse but was required to remain in New York to
market their house and to care for a terminally ill family member. Following
the sale of her house and the death of her relative, claimant announced to her
employer in July 1995 her intention to relocate to follow her spouse. At that
time, the employer persuaded her to continue working for an additional period,
to assist in preparing essential grant proposals at a time when the employer
was prevented from replacing the claimant due to a hiring freeze. Following
completion of this work, the claimant resigned on September 29, 1995 and
relocated to Florida.
OPINION: The credible evidence
establishes that the claimant quit her employment in New York to follow her
husband to Florida where he had relocated to undertake new employment. The
Board has long held that such a leaving of employment is with good cause under
the law. Nor is this result altered by the fact that the claimant did not
relocate at the same time as her spouse but delayed her departure for some
months, while simultaneously negotiating the sale of their residence and caring
for a terminally ill relative and, thereafter, while accommodating the employer
by extending her employment to provide indispensable services (Appeal Board
399,375). Accordingly, we conclude that the claimant's employment ended
under nondisqualifying conditions.
DECISION: The
initial determination of the Out-of-State Resident Office is overruled.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- In this case, claimant delayed relocating with her
spouse for several reasons. She was tending to an ill relative and
simultaneously negotiating the sale of the family's residence. Thereafter,
she further delayed her relocation to accommodate her employer. Claimant
was engaged in projects with deadlines, and could not be replaced.
- It should be noted that the Appeal Board reopened and
reconsidered this case, upon the Commissioner of Labor's request, and
adhered to its original decision (AB 460,741A).
- This principle was reaffirmed by the Appeal Board in a
later case, wherein the Board held that "participating without undue
delay in the training of a replacement, at an employer's request, provides
justification for waiting to follow", but only if the efforts to
train had been conscientious and expeditious (AB 469,315, not published).
Index 1125.13
NEW YORK STATE
DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January, 1998
INTERPRETATION
SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol
Alcoholism & Safety
Sensitive Work
Alcoholism
does not excuse a claimant's reporting to work in a safety sensitive position
while impaired by alcohol, because of the potential for harm to the welfare or
safety of the claimant himself, or his coworkers, or his employer's customers.
A.B. 471,802
By
initial determination of the local office, the claimant was disqualified from
receiving benefits, effective August 6, 1996, because of a loss of employment
through misconduct in connection therewith. The claimant requested a hearing.
The
Administrative Law Judge held a hearing at which testimony was taken. There
were appearances on behalf of the claimant and of the employer. By decision
filed October 23, 1996 (A.L.J. Case No. 096-34094), the Administrative Law
Judge overruled the initial determination.
The
employer appealed the Judge's decision to the Appeal Board.
By
order dated January 7, 1997 (Appeal Board No. 467939), the Board rescinded the
decision of the Administrative Law Judge and remanded the matter for further
proceedings. Prior to the hearing held pursuant to the Board's order, the
Commissioner of Labor issued an additional initial determination that held the
claimant ineligible to receive benefits, effective September 2, 1996, because
claimant was not capable of employment.
Pursuant
to the order of remand of the Board, an Administrative Law Judge held a hearing
at which all parties were accorded a full opportunity to be heard and at which
testimony was taken. There were appearances on behalf of the claimant, of the
employer, and of the Commissioner of Labor. By decision filed March 13, 1997
(A.L.J. Case No. 097-01381), the Administrative Law Judge overruled the initial
determination.
The
employer and the Commissioner of Labor appealed the Judge's decision to the
Appeal Board. In connection with its review of the case, the Board considered
the arguments contained in the written statements submitted.
Based
on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT: The claimant worked as a track worker for the employer, (a local
transit authority), from July 8, 1985 through August 5, 1996. The claimant's
position was classified as safety sensitive by federal regulation. His duties
included working with a 12 person crew lifting rails weighing up to 1,300
pounds near active third rails.
The
claimant regularly drank alcoholic beverages and had, on occasion, reported to
work after he had been drinking. On August 5, 1996, the claimant drank a
six-pack of beer within a one hour period, consuming the last beer at 9:00 A.M.
The claimant reported to work at 10:00 A.M. The claimant was given a
breathalyzer test as part of a random test. The test was positive for alcohol with
a .074 reading. The claimant was suspended from employment that day. The
claimant was sent to the employer's Employee Assistance Program (EAP). After
initial counseling, the claimant agreed to engage in outpatient treatment
regarding his abuse of alcohol. Such treatment included his attendance at
meetings four evenings per week and additional attendance at AA meetings.
Effective September 2, 1996, the claimant's counselor first indicated that
claimant was again capable of working. As of January 15, 1997, the claimant was
cleared by the EAP to return to work for the employer.
OPINION: The credible evidence
establishes the claimant reported to work in an impaired condition with an
alcohol level of .07. It is undisputed in this record that claimant's job involved
dangerous activities and was classified as safety sensitive under federal
regulations. While claimant may be an alcoholic, the court has held that not
all acts of misconduct are excusable because of that circumstance (see Matter
of Gaiser, 82 AD 2d 629). That is the circumstance herein. The
claimant's act of reporting for work in a safety sensitive position while
impaired by alcohol created a dangerous situation for himself, for his
co-workers, and potentially for the customers of the transit system. In view of
the significant potential for harm to the health and welfare of all involved,
we find that claimant's action rose to the level of misconduct. He is,
therefore, subject to the disqualification imposed. In reaching this
conclusion, we note and reject the Administrative Law Judge's analysis that the
claimant's behavior is excusable because he did not actually engage in work
related activity on the day in issue. The reality of the circumstance is that
claimant would have engaged in his dangerous job activities, thereby
placing himself and others in potential peril, but for the
circumstance that he was selected for a random alcohol test. We find that this
fortuitous occurrence should not and does not shield the claimant from the
consequences of his behavior.
Since
the claimant is subject to the disqualification because he lost his employment
through misconduct in connection therewith, the issue of the claimant's
capability of employment is academic and need not be decided.
DECISION: The initial determination
of the local office disqualifying the claimant from receiving benefits
effective August 6, 1996, because he lost his employment through misconduct in
connection therewith, is sustained.
The
decision of the Administrative Law Judge is reversed.
COMMENTS
- This case is a clear example of behavior which is not
excused by a claimant's alcoholism. In Matter of Gaiser,
82 AD 2d 629, cited by the Appeal Board in this case, the court described
the notion that an alcoholic is incapable of misconduct as an "unsupported
and dangerous conclusion." Since that decision, the Board and the
courts have generally held that alcoholism cannot excuse actions that are
dangerous or unlawful. Actions which have been held to be not excusable
include driving while intoxicated, destroying property, sexually harassing
a co-worker, falsifying time cards, assault, and theft.
- Although the Federal Regulations referred to in this
case apply specifically to safety sensitive employees in mass transit,
similar regulations have been enacted to control alcohol misuse in other
industries which affect the public safety. Generally, these regulations
identify "safety sensitive" workers, and distinguish them from
other workers whose activities do not directly affect the public safety.
- Safety sensitive workers in mass transit are required
to submit to random alcohol breathalyzer tests. And if the test reveals an
alcohol level greater than .04, the regulations require that the employee
be removed from safety sensitive duties and referred for counseling. They
are prohibited from consuming alcohol not just on duty, but also within
four hours of the start of their shift. Any violation of these regulations
is misconduct.
- Although this case involved a worker whose job is
defined by Federal Regulation as safety sensitive, this principle would
apply to any worker whose tasks involve safety hazards, or whose
performance while impaired could create a safety hazard. This would be
evident in the nature of the work: a driver, an operator of heavy
machinery, an engine repair mechanic, a doctor.