Review Letters

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
______________________________________________________________________

ADJUDICATION SERVICES OFFICE                               INTERPRETATION SECTION
______________________________________________________________________

REVIEW LETTER 1-2005
DECEMBER, 2005

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION

REVIEW LETTER 2-2001

NONMONETARY DETERMINATIONS AND REDETERMINATIONS

MARCH, 2001

I. Introduction:

This Review Letter serves as a general summary and guide to Nonmonetary Determinations. It describes the identification of issues and their correct resolution according to Federal criteria and New York State Unemployment Insurance Law, Rules and Regulations. In future updates this release will be modified with revised pages instead of reprinting it entirely. This method of updating, similar to the Interpretation Service, allows more frequent and timely notices to staff as program changes occur.

This edition incorporates changes in NMD processes due to:

• UI Reform Legislation in New York State (1998)

• USDOL’s amended Federal definitions of Nonmonetary activities issued during the "UI Performs" project (1996)

• NYS "Reasonable Attempts" standards for fact-finding (1997)

• NMD activities at Telephone Claims Centers (TCCs) using voice-response and imaging-system technologies

NMD adjudications must fulfill three basic workload concepts: Reportability, Validity and Quality. Consistency among claims staff is essential in order that work units be reported accurately and fully. The failure to recognize and develop legitimate nonmonetary issues can result in an under-funding of the program.

The quality of the NMD process is measured by the "Benefits, Time-lapse and Quality" (BTQ)program, where a sample of NMD decisions is reviewed each calendar quarter for the quality of fact-finding and conformity of the decision to State Law and Policy and the time lapse between issue identification and its resolution.

It is of the utmost importance that DOL staff be able to identify nonmonetary issues. A major identification of issues is through the original claim process. The claimstaker must recognize all issues presented by the claimant in claim filing, so that further fact-finding can occur. Other areas where issues may appear include Additional Claims, PEER and other interviews, the certification to benefits, job referral activities, etc.

Not all eligibility questions recognized will result in valid NMDs; some are merely routine "claims taking." The job of the LSR (claims adjudicator)is to determine if an issue exists and, if so, to investigate and resolve it. In some instances all that may be necessary is some clarification of the claimant’s statements. Such routine fact-finding, which does not identify an issue, is not a nonmonetary activity.

But in other cases, the failure to develop a valid NMD is the result of inadequate fact-finding, not considering all the ramifications of the information developed, or failing to record the work actually done.

II. Definition of a Nonmonetary Determination (NMD)

In 1996 USDOL revised the criteria for reporting Nonmonetary Determinations, and adjusted its funding process to equate increased workload levels for states that began to report certain activities formerly considered invalid and non-reportable, such as:

• NMDs issued in the absence of a week claimed

• More than one NMD based on the same set of facts

• Discharge cases due to inability to perform the job

• Crossmatch determinations arising from Benefit Payment Control/Fraud Detection work not previously included on the Federal ETA 207 NMD workload report

A. USDOL Criteria for Valid NMDs

To ensure the above criteria are met, the following terms must be clearly understood:

ISSUE: An act, circumstance, or condition potentially disqualifying under State law or the Commissioner’s rules and regulations.

BENEFIT RIGHTS: Monetary entitlement established by an appealable agency-document (monetary determination) that explains the amount and computation of potential rights to benefits. A claimant has no benefit rights to be affected by an NMD until monetary entitlement is first established.

SINGLE AND MULTI-CLAIMANT NMDs: Nonmonetary determinations may apply to one or more claimants. The single-claimant nonmonetary determination is based upon facts which relate to an individual situation, and is issued to a single claimant. Multi-claimant nonmonetary determinations have a set of facts which apply to groups of workers similarly situated, each of whom is issued the same notice of determination. Because identical facts and decisions apply, one multi-claimant NMD is counted for the group, although the total number of claimants issued the notice is also reported.

B. NMD Documentation Requirements

The following specific data must appear on identifiable documents to show that an NMD meets the above definitional requirements to be properly counted as a nonmonetary determination:

1. The issue and potentially disqualifying facts must be recorded.

2. The material facts considered in arriving at the determination must be recorded, including "Reasonable Attempts" made to seek any necessary information that could not be obtained.

3. The conclusion of law and legal result supported by the factual basis must be clearly documented to show whether the claim was allowed or denied.

C. Illustrations of Valid NMD Counts

Examples of valid Single-Claimant Nonmonetary Determinations:

1. Separation issues, which are potentially disqualifying circumstances surrounding the loss of a job, either by voluntary quit or discharge.
   
   
2. Nonseparation issues, such as being unavailable for work, and incapable of work, failure to certify as required, the attendance at training, etc.
   
   
3. Determinations made because of fraud and misrepresentation, except that no count may be taken for a notice of overpayment when the reason for the overpayment was issued on a separately counted nonmonetary determination. 1/

   1/ For more complete instruction on using the data entry systems to report counts, see BOLTS 17.175, p. 2.

4. Determinations needed when controversy exists as to whether claimant satisfies the earnings requirements to terminate an indefinite disqualification.
   
   
5. Investigation of a claimant’s explanation for late reporting that results in a nonmonetary decision.
   
   
6. A claimant’s separation for a reason ‘other than lack of work’ (such as ‘laid off, too slow’ or ‘failed to perform’) when investigation uncovers the need for an NMD’S

D. Activities Not Reportable as NMD’S

There are many other situations dealt with in this Review Letter that could produce an NMD, but the following circumstances are NEVER reportable as NMD workload:

1. Routine exploration of fact, questioning, or advising claimants when no element of controversy is present or discovered.
   
   
2. Clerical postings on electronic files such as routing information noted in the Imaging workflow process.
   
   
3. Referrals to the Investigation Section are not countable as NMDs when pre-referral fact-finding fails to uncover potentially disqualifying information and no determination on the facts is made. The investigation Section will count any NMDs they make after completing their findings. For example, if a ‘tip’ is received about concealed employment and the matter is referred for field investigation, the LSR isn’t making an NMD, as the material facts to prove or refute the allegation haven’t yet been obtained. The claims adjudicator should not count an "NTU" eligible determination, even though benefits are not being denied. However, a valid NMD may be taken on the NTU issue if pre-referral fact finding does uncover potentially disqualifying information and the claims adjudicator determines the claimant eleigible but requests additional field investigation.
   
   
4. Correction of certification errors (for example, days worked, holiday or vacation pay, availability and capability issues) when the claimant volunteers the information and the office agrees a mistake was made. There is no contention or controversy and no facts are in dispute; therefore no count can be taken, even if an overpayment results.
   
   
5. Interview when claimant is advised to remove a restriction on availability and claimant agrees to do so.
   
   
6. Claimant’s ineligibility based on a matter of law, when there is no disagreement with facts that cause ineligibility. For example, claimant concedes earnings in excess of the statutory maximum in a waiting week, working two days. Benefits are denied, nut no NMD is counted.
   
   
7. Claimant’s acceptance of the claimstaker’s explanation that only partial benefits are due on account of work or because claimant was ill or otherwise unavailable for work during part of the week.
   
   
8. Correcting duplicate payments for the same statutory week.
   
   
9. No more than one count may be taken for a given week for any not capable, not available, or not actively seeking work issue. This is a federal requirement.
   
   
10. 'Alternate' and 'Revised' determinations, both of which are duplicate activities covering the same factual circumstances previously addressed and counted in the 'Primary' or 'Original' NMD decision.
    
    
11. Determinations made solely to decide whether charges should be made to an employer's account (i.e. adjudicating "non-controlling" voluntary quit separations).
    
    
12. A decision as to whether claimant has had the required employment and remuneration to establish a valid subsequent original claim, meeting the "work requirement" under Section 527.6.
    
    
13. Implementing Administrative Law Judge and Appeal Board decisions.

E. Required Fact-Finding For Nonmonetary Determinations

F. Adjudication Policy: "Weeks Claimed"

G. Adjudication Policy "Poor Performance"

Confusion often arises about cases where claimants were discharged because they did not perform adequately on the job. Some fact-finding is usually required to distinguish among "Proficiency", "Performance", and "Not Qualified" cases, which are not always due to simple inaptitude or lack of qualifications/ability to do the job. But there can be an NMD only in situations where there is an "issue" developed or in which initial statements of either party do not rule out possible disqualifying circumstances.

In contrast, if the claimant is incapable of meeting the employer's standards through no fault of his own, there is no issue of Misconduct, and there is no valid NMD, even after thorough investigation.

Since "Misconduct" is not specifically defined in the statute, this type of case needs further investigation according to precedents in existing case law. The investigation must always produce MORE INFORMATION, and SPECIFIC FACTS related to possible Misconduct. In cases where additional facts and evidence are needed to reasonably assure a correct decision, the LSR must perform necessary fact-finding and then issue a determination.

Initial Fact-Finding: Claimant's Deficiencies and Work History

In adjudicating such cases LSR staff must examine and document the type of performance problem that occurred and form conclusions as to:

• Whether the performance deficiency was caused by some specific behavior or a neglect of duties?
  
  
• Was there opportunity or warning or employer assistance to effect improvements?
  
  
• Why wasn’t the claimant able to improve his or her performance?

This investigation is conducted in order to obtain facts about the specific claimant behavior or causes that the employer observed before making the conclusion to discharge the claimant for his "poor performance". A sequence of questions helps to distinguish situations that could involve misconduct from those which do not: How long did claimant do that job? Did he ever do it better? When did his performance become inadequate, or was it always the same?

When the employer identified the problems with the claimant’s performance, did they confront him? Re-instruct him? Re-train? Warn him? (how?) Did the claimant resist the instruction, or did he cooperate? Did the claimant appear to be following whatever instructions he was given, at least to the best of his ability? A brief statement that only repeats the phrase "poor performance" establishes that there was "no issue" i.e. the employer agrees there was no misconduct situation involved no NMD results.

Further Questions: When Employer Contends Claimant was able to and should have performed adequately

When it is alleged that the claimant did not try to meet expected standards, an issue exists and the employer should be asked further questions:

What did the employer observe that led him to conclude either the claimant was not trying to improve, or deliberately performed poorly? Did the claimant ever say anything that led the employer to believe that the poor work was intentional?

Answers to the second group of questions help the LSR reach a conclusion about whether there was in fact a pattern of behavior that should be regarded as misconduct and disqualify the claimant from receiving benefits. The LSR should in all such cases develop facts from which a conclusion (rationale) can be stated regarding possible misconduct. To count a valid NMD, possibly disqualifying information must be explored, obtained, rebutted and documented.

Poor performance that is the result of deliberate neglect of duties, disregard of instructions, or gross neglect is Misconduct, and must be evaluated. "Poor Performance" should be adjudicated whenever it is contended that inability or incapability of meeting the standards of work was not the cause of discharge.

It should always be made clear in the file WHY the LSR felt an issue existed and what further investigation was needed, i.e. the employer’s LO 400 noted a contested claim or a claimant self-reports a disqualifying circumstance.

When such cases of "Poor Performance" are properly investigated and documented, they now meet Federal and State standards for reportability. In contrast, when further investigation is NOT needed, policy in our state continues to be that when both parties gave CLEARLY non-disqualifying separation information, merely advising the employer of claimant’s eligibility on an LO 21 form does not constitute a reportable NMD.

III. Possibly Disqualifying Information – NMD Time-lapse Reporting

A. Detecting Nonmonetary Issues

B. Detection "Source Codes" – Issue Dates and Time-Lapse Points

C. NMD Time-Lapse Calculations

IV. "Reasonable Attempts" To Obtain Information

1. Responsibilities to Initiate Fact-Finding

   Every case record must contain all the necessary facts, or show that an attempt was made to get them, from any party whose statements are material to deciding the claimant’s eligibility. It is this collective evidence that the LSR considers in order to reach the conclusions of law reflected in an NMD.

   If the LSR lacks any relevant and critical information to begin with, it is quite possible that an incorrect decision would occur, despite best efforts to evaluate the case. Furthermore, it is a due process right to afford the parties an opportunity to submit relevant information before making the NMD, to make them aware of administrative deadlines for supplying this information, and to tell them of consequences for failing to reply in time. In the investigation of claims it is the Agency’s responsibility to take the initiative in the discovery of information. This responsibility may not be passed on to the claimant or the employer. If the information obtained from other sources differs essentially from that furnished by the claimant, the Agency is required to inform the claimant of such information from other sources and to afford the claimant an opportunity to furnish any further facts or rebuttal he/she may have. This applies to the employer as well.

   The claims adjudicator must take an active role in adjudicating issues. Adjudicators must not infer that it is solely the employer’s responsibility in a misconduct case to prove a disqualification is warranted. Similarly, it is the LSR’s responsibility to determine if good cause exists for a voluntary leaving, once the claimant has specified his/her reasons. It is the LSR’s duty to obtain material facts and offer the opportunity for rebuttal to all relevant parties before making the determination. A valid determination can only be made after all interested parties have been provided the opportunity to present relevant facts and been allowed to offer appropriate rebuttal.

   However, there are times when reasonable attempts to obtain sufficiently detailed information from the interested parties are unsuccessful. In such instances, the written determination should cite the attempts that were made.

   It is the claims adjudicator's responsibility to pursue, discover, and determine the reason for the claimant’s separation, to make findings of fact with respect to the separation, and then apply the law. The claims adjudicator is not a passive evaluator of evidence presented to him/her, but must actively pursue the facts of the case. The "burden" is really on the LSR to elicit the facts from all available sources.

2. USDOL Standards and State Procedures for "Reasonable Attempts"

   Contacts and Documentation

   Through the "UI Performs" NMD Quality Review system USDOL has issued general guidelines on the content of requests for information, or fact-finding "attempts", and specified the minimum response period required. States are permitted to develop their own procedures and notifications so long as they satisfy the minimum Federal criteria described in the ET 301 Handbook.

   1. Leaving Telephone Messages - Documentation Standards

      Information requests may be left on an answering machine or with a responsible party who agrees to take the message and deliver it to the person whose reply is needed. At least 48 hours must be allowed for the party to respond in order for it to be considered a reasonable attempt. The LSR must document the following:

      • Date and time of contact
      • Number called
      • How message was left (answering machine or identified person who took message)
      • How the LSR can be contacted, i.e. phone/fax numbers
      • The deadline date, and time, for responding
      • Warning that failure to respond will result in a determination based upon available information
      
      
      
   2. Mailed Requests For Information

      When a request for information by telephone has proven to be unsuccessful, the adjudicator (LSR) should make a reasonable attempt to obtain the required information by mail. The party should be advised that if a response is mailed, they have a deadline of 7 days and 5 days if they plan to respond by phone or fax, these attempts should be properly documented.

      Correspondence and questionnaires must always include the prescribed warning on failure to make a timely reply, which is pre-printed on most fact-finding forms now used.

   3. Setting Deadlines

      a. Successful Contacts

      1. If the Claims Adjudicator is able to leave a telephone message on the party’s machine or with a message taker, request for a telephone or fax response must be a minimum of 48 hours from the time of the call.
         
         
      2. If the Claims Adjudicator reaches the party, who agrees to submit further evidence, an appropriate deadline based on reasonable attendance standard, must be given and documented with the advisal that failure to provide the information by that deadline will result in determination being made based on the available information.
         
         
      3. If the information exchange combines both mail and telephonic methods (i.e. request by phone/fax and reply by mail or vice versa) the reply deadline is 5 calendar days including the day the request was made. LSRs may data enter the NMD after 3 PM on the 5th calendar day, but must also check that a timely reply is not received before 5 PM. Information is considered ‘received’ on the day it arrives for imaging or processing in a UI office.
         
         
      4. For mailed requests that advise the party to mail back the response, the deadline is 7 calendar days from the mail-date of the request.
         
         

      b. Other Follow-up Steps

      If new information is obtained on an issue that refutes the claimant’s statements, as for example, the employer has indicated that the claimant quit as opposed to the claimant’s statements that he/she was "fired", the claims adjudicator should contact the claimant with this new information and proper documentation be made. In cases where there is no essential disagreement about the type of issue involved, and only one party has furnished a timely reply to the information request or questionnaire, the LSR may issue the NMD once the period allowed for reply to the fact-finding attempt has ended. The examples below illustrate this.

      • A claims adjudicator leaves a message on claimant’s answering machine at 3:00 PM on Monday to request a return call by 3:00 PM Wednesday. The lapse of the 48-hour dead-line should be documented.
        
        
      • An employer reports a job refusal to the TCC. The adjudicator unsuccessfully attempts to call the claimant (no answer or recorded message). A "call-back" letter is then sent requesting claimant to reply by telephone "immediately but no later than 3:00 p.m." on the fifth day after mailing (day 1). The correct deadline date to give claimant on the call-back card is as follows:

        If the notice is mailed Monday, the deadline is 3:00 p.m. Friday(fifth day). If mailed Tuesday, Wednesday or Thursday, response is due by the following Monday at 3:00 p.m. In each case Monday is the first business day satisfying a five calendar-day deadline). A notice mailed Friday must be responded to by 3:0 p.m. Tuesday (fifth calendar day). In each of these deadlines a 3:00 p.m. time limit MUST be specified to permit phone and fax non-replies to be adjudicated on the deadline day; otherwise the NMD should be done the next day, permitting claimant the full five days.

      c. Issuing a Determination

      An NMD may be issued any time after the deadline date and time. If a response is received after the determination is issued it should be considered and handled as a redetermination. Any reasonable request for additional response time should be granted. If more than one party is contacted, an NMD should not be made until all the deadlines have passed, or replies have been received.

      If an NMD is made without requesting relevant and critical information that is needed, or the claims adjudicator does not allow the parties the prescribed time to reply, the claims adjudicator has not met the reasonable attempts standards, and the party has not been afforded due process.

1. Concept of Controlling Separations

   A. UI Reform: Required Determinations

   Determinations are required to be made on separation if any of the following issues exist:

   • Misconduct with any Base period employer
   • Misconduct or VQ with the Last Employer (Lag or Base Period)
   • Misconduct or Voluntary Quit with any Controlling Employer

   In each of these situations there is an effect or potential effect on the claimant’s benefit rights, ranging from cancellation of wage credits.

   A Voluntary Quit or Discharge from any employer from the beginning of the Base period up to the filing of the claim is potentially disqualifying unless the claimant subsequently earned at least five times the benefit rate. Employment after which the claimant did NOT have subsequent earnings of 5 times the rate is considered to be "controlling employment", i.e. the NMD outcome controls whether or not claimant is eligible to receive benefits. If the employment is ‘non-controlling’ for eligibility purposes, NMDs are reportable if there is a potential effect on claimant’s benefit rights, i.e. employment determined to have ended due to misconduct or a criminal act cannot be used to qualify for benefits.

   B. Notices Not Reportable as NMDs

   UI Reform brought about several changes in the notices sent to employers to explain why claimants were found eligible based on the new principles of controlling employment:

   Form CE52 – An informational notice (issued with ‘N’ count) to advise a non-controlling employer that a VQ NMD is not being made because there are subsequent earnings to break any potential disqualification that might be imposed.

   Form CE53 – Eligible notice (issued with ‘N’ count) to a non-base period, non controlling, employer on a separation issue that states the employer’s wages were not in the base period, claimant had sufficient later employment to break any disqualification that might have been imposed, and the employer is not responsible for any benefit charges on the claim.

   Form MC99 - A notice (issued with an "N" count) which advises a non-controlling base period employer that wages earned from employment have been cancelled due to Misconduct and the employer will not be charged for benefits although the claimant was found eligible based on subsequent controlling employment.

   Whenever a disqualification is made regarding Misconduct or Voluntary Quit Without Good Cause, the wages involved must be marked or tagged by the claims adjudicator so that they will be properly used or eliminated from the current and subsequent claims (see III 6990-3)

2. Defining and Adjudicating Potential Misconduct

   The employer or claimant will sometimes submit forms or questionnaires that do not have enough detail to confirm the existence of an issue. The LSR must first ascertain whether or not there is a benefits "issue", before taking further steps to make a determination. It is imperative, in the less obvious situations, that the LSR uncover the known facts and decide if they present an issue to rule upon. Below are situations where exploratory or clarification fact-finding must precede a more detailed investigation required for an NMD count.

   A. "Precipitating" and "Last" Incidents

   The term "last incident" can also be misleading. This is a term which has been widely used in UI but sometimes sends LSR staff off in the wrong direction (see Review Letter 2-84). In misconduct cases, it is the obligation of the LSR to determine the "precipitating incident", i.e. that circumstance which was the immediate cause of the employer’s decision to terminate the claimant. Frequently the "last incident" is not the precipitating incident. Thus, it is not uncommon for LSRs in an absenteeism and tardiness case to ask an employer for the last incident of absence or tardiness, only to discover later in the claim process that the decision to terminate had already been made prior to the final occurrence of absence or tardiness. The "precipitating incident" or "determining factor" are better descriptions of the heart of a separation matter – that situation or event which caused the decision to be made to terminate the claimant. If there is no single event or incident, the LSR must go into the pattern or history of problems which led up to the decision to discharge.

   B. "Not Qualified" Situations

   To say a person is "not qualified" strongly implies inability or incapability to do the work, which are not eligibility issues. This is not the same as "Poor Performance" on the job, which is discussed in Unit One, II-G. A valid NMD count may be taken in "not qualified" separation situations only if either claimant or the employer indicates that a possibly disqualifying act occurred which led to the claimant’s separation.

   No bona fide issue exists when on the application for benefits the claimant reports "not qualified for position", "could not make quota", "employer unhappy with my production", etc. and the employer also replies "not qualified" or words to that effect. Since both parties gave non-disqualifying information, there is no bona fide issue. Similarly, if claimant answers "fired" on the application for benefits and the employer reports either "lack of work" or "not qualified," no NMD may be counted.

   C. Non-conclusive employer information

   Separation information may be received from employers which does not clearly indicate misconduct but which nevertheless is possibly disqualifying because it raises an issue of whether the claimant was discharged for misconduct. Investigation of such claims can generate reportable determinations. Examples of employer replies which would require further investigation to determine whether or not individuals may be disqualified under the misconduct provisions in State law include: "discharged", "fired", "dismissed", "terminated", "personality conflict" or "unsatisfactory" without further explanation. Since the employer is the "moving party" initiating the separation from employment, the employer is the first, and usually best, source to obtain clarifying information. If the initial contact with the employer indicates clearly that the reason for discharge is not disqualifying, no NMD may be counted. This is clarification fact-finding. If, however, potentially disqualifying information is obtained and additional substantive fact-finding is needed to evaluate the reason for discharge, an NMD situation exists.

   Example - The employer responds on form LO 400 that the claimant was discharged due to absenteeism. The employer is contacted by the claims adjudicator and provides the following information: The last day of work was January 7, 2000. The last absence for which the claimant was terminated was December 7, 1999. The reason the claimant was not terminated until January 7, 2000 was that they did not feel they could terminate the claimant during the holiday season.

   Since there was no direct relation of the offense to the discharge, a determination of eligibility was made without interviewing the claimant. This action met the requirements for a non monetary determination.

3. Voluntary Quit

   As a result of the amendments to the law, all controlling voluntary quits must be adjudicated. Any voluntary leaving of the last employment prior to the filing of an original or additional claim for benefits will be controlling, as discussed above. In addition, any voluntary leaving of employment after which claimant has had subsequent covered employment, but has not had earnings at least equal to five times the benefit rate will also be controlling. The adjudication of such issue can result in valid NMDs.

   However, no "issue" arises from the voluntary leaving of employment after which, and before filing a claim for benefits, claimant has had subsequent employment and earnings at least equal to five times the benefit rate. This is equally true for Original Claims and Additional claims.

   Any employer objection involving a non-controlling voluntary quit must result in a response to the employer, but this response will not constitute a valid non-monetary determination, since no decision on the merits of the cause for the quit is being made.

   When it has been determined that after a voluntary quit, the claimant has had subsequent employment in which claimant has earned more than five times the benefit rate prior to filing, the voluntary quit has no potential impact on the claimant's right to benefits. It no longer meets the definition of "an issue", which is necessary for validity of an NMD.

4. Situations Not Requiring Interview

   It is possible in some separation issues to make a decision and have a valid NMD count without interviewing the claimant. This can occur when the claimant provides possibly disqualifying information and the employer upon interview confirms a non-disqualifying reason for separation.

   Example – Claimant, a painter, stated he quit his job because his employer was deducting $50 a week from his paycheck. The claimant provided specific details about how he had painted a room the wrong color and the job had to be done over. The employer was called and he confirmed the claimant's statement and added, "this is the second time this guy upset one of my best customers by making a mistake." This constitutes an illegal deduction from the claimant's salary and is a quit with good cause, although claimant may have been grossly negligent in making the mistake (see Field Memo 2-2000).

   In this example, there was possibly disqualifying information which was resolved and a determination issued. If these elements are lacking, the NMD count is invalid. If the facts presented prior to the beginning of the fact-finding process raise an issue, we must define that issue, investigate the facts consistent with our definitions and issue a written determination to the adversely affected party. Prior to issuing such a determination that party should be given the opportunity to rebut any new information upon which we rely in making our determination.

REVIEW LETTER 1-2001

January 2001

During the calendar year 2000, one rule was distributed for the Interpretation Service, by release A-750-2112. This rule and the comments from the release are reprinted in this Review Letter. An IMPORTANT UPDATE was added to these. See ADDITIONAL COMMENTS within.

In April, an extensive 13 page Interpretation Service publication was released that contained changes and updates necessitated by the numerous recent amendments to the Unemployment Insurance Law.

There were also two Field Memoranda released in 2000. The first discusses changes to Sections 527, 590, 534, 593.2 and 600.7 of the statute that were signed into law on February 15, 2000. The second, entitled Labor Standards Violations, contains a discussion of the most common types of violations that arise in unemployment insurance cases, as well as a chart that provides telephone numbers and jurisdictional information for Labor Standards offices in the state.

HEARINGS AND APPEALS

TIMELINESS

Hearing Request Receipt Date

The timeliness of a hearing request must be measured by the date it was filed with the Commissioner of Labor, and this is established by the date it is received.

1. Section 620 of the Unemployment Insurance Law limits the amount of time that a party has to request a hearing on a determination, to thirty days. However, neither the statute nor applicable regulations define the method by which compliance with the time limit is measured.

2. In the Matter of Levine, cited by the Appeal Board in this decision, the Court ruled that the mere mailing of a hearing request within the allowed time period was insufficient to meet the statutory requirement. In order to be timely, the request must be "filed with the Commissioner of Labor" within thirty days.

3. This decision by the Appeal Board establishes that a request for hearing is "filed" on the date it is received by the Commissioner. The evidence of receipt is the instamp date marked on the letter by the local office. This is the date to be entered as the hearing request date on the "Hearing Request Information" screen.

   UPDATED COMMENTS

4. Although Matter of Levine is current case law, recent Appeal Board decisions (not published) have pointed out that the instructions on notices of determination states:" request must be made in person or by mail NOT LATER THAN 30 DAYS from the mail date on this notice"

5. Therefore, for claimants and employers who have relied on those instructions, and mailed hearing requests within 30 days of the date of the determination, the Appeal Board has held that it would be unfair, and a denial of due process, to find such hearing requests untimely.

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION

REVIEW LETTER 2-2000

MAY, 2000

SUBSTANCE ABUSE TESTING

The U.S. Department of Labor has reported the results of studies conducted by the National Institute on Drug Abuse which conclude that seventy percent of all illegal drug users are employed. In addition, it has been estimated that one in ten people in the U.s. has an alcohol problem. It is not surprising therefore, that in the course of the last twenty years, substance abuse testing has become a routinely used tool for many employers. In addition to its federally mandated use by employers in public and private transportation, it has also been utilized by employers to enforce policies calling for drug and alcohol free workplaces. It has proven particularly useful though, in the areas of accident investigation and pre-employment screening.

This Review Letter discusses and summarizes those aspects of drug and alcohol testing procedures which have been shown to be relevant to the adjudication of unemployment insurance claims. It contains a description of the various testing methods currently used, and the capabilities of each. Special attention is paid to evidentiary problems associated with testing procedures.

An employer's right to conduct drug and alcohol testing in the workplace and to insist that an employee submit to a test, is generally established either by the requirements of applicable federal regulations, or by the terms of an employer's drug and alcohol policy, to which employees agree at the time of hire.

A demand by an employer that an employee produce a urine sample for drug testing has always been considered an infringement of an employee's right to privacy. For this reason, public employers in the 1980s found it necessary to defend their drug and alcohol policies from challenges claiming that such policies violated the fourth amendment of the U.S. Constitution, in that they required an employee to submit to an unreasonable search and seizure (Patchogue-Medford Teachers Congress v. Board of Education, 70 NY 2d 57 (1987); also Caruso v. Ward, 72 NY 2d 432 {1988}). The courts held that the taking of a urine sample is a search and seizure, and the public employers involved in these and other cases were required to demonstrate that their policies met the federal and state constitutional thresholds. Many employers consequently had to modify their policies to conform to the courts' decisions.

Many of the precedents and principles established as a result of the numerous court decisions dealing with drug testing ultimately were incorporated in the regulations which were enacted due to the Omnibus Transportation Employees Testing Act of 1991. These regulations, issued by the Federal Transit Administration on February 15, 1994, (49 CFR Part 653 & 49 CFR Part 654), established drug and alcohol testing policies for employees of mass transit systems. (See Review Letter 2-99). Similar regulations were adopted to establish testing policies applicable to employees holding commercial driving licenses, to certain public utilities workers such as those employed in nuclear power facilities, and to workers in other occupations with respect to which there are grave public safety concerns. Thus, by federal law, a broad category of workers in safety sensitive occupations, in both public and private employment, are now required to submit to drug and alcohol testing procedures.

The constitutional issue mentioned above, is only relevant with respect to a public employer. "A search by a private person or nongovernmental entity does not violate constitutional rights" (Matter of Atkinson, 185 AD 2d 415,416 {3^rd Dept.}). Therefore a private employer's drug and alcohol testing policy need not meet any constitutional standards. However, despite the court's ruling in the Matter of Atkinson, the Appeal Board has held that when an employee in private employment refuses to submit to drug testing where there is no reasonable suspicion of drug use or specific advance notice that such testing would be a condition of employment, claimant's refusal to submit is not an act of misconduct (AB 383,643). Therefore, in resolving unemployment insurance claims with respect to drug testing, essentially the same standards may be applied to public and private employees.

This is not to say though that all employer policies are alike. Some employer policies prohibit being under the influence of alcohol or drugs, or possessing alcohol or drugs, only while on duty, a limited restriction. If a worker subject to this policy were to submit a urine sample which tested positive for marijuana, the test result alone would not establish that the claimant had violated the employer's policy. It would not prove that claimant had used marijuana or had been under the influence of it while on duty; it would only show that he had used it recently.

On the other hand, some employer policies require "testing clean", with respect to drugs. Such a policy prohibits any illicit drug use, on or off the job. Therefore, any positive test result for a worker subject to such policy would constitute a violation of the policy. And a worker terminated in such situation would be subject to a misconduct disqualification.

TESTING METHODS

Alcohol Breath Test

The breathalyzer, as it is commonly known, is an economical and simple device for measuring blood alcohol levels. It is used by law enforcement agencies throughout the country and its reliability is widely accepted. It is important to understand that this test does not rely on alcohol present in the mouth or throat for its results. Instead, it measures blood alcohol concentrations (BAC) by detecting the presence of alcohol in the gas excreted by the lungs as a product of respiration. It measures alcohol, in other words, that has been consumed and metabolized by the body. Therefore, repeated rinsing of the mouth after consuming alcohol will not "fool" the test.

The test is conducted as follows: the person is asked to take a deep breath and blow hard into the testing device. The alcohol level is read as a percentage by weight of alcohol in the blood. What constitutes an acceptable level depends entirely on the applicable law, regulation or rule. Under the Federal Mass Transit Regulations, a reading of .04 is too high. Many employers now have zero tolerance policies. Zero tolerance (.02 or greater) is also the standard pursuant to New York State's Motor Vehicle Law for drivers under 21 years of age. For drivers over 21 in New York, a reading of between .06 and .09 will result in a charge of Driving While Ability Impaired (DWAI). If the reading is .10 or greater the charge would be Driving While Intoxicated (DWI). A first time DWI offense is a misdemeanor, but a second offense is a felony.

Urine Tests

The procedures for taking and testing urine samples for drug screening purposes have been subject over the past twenty years to numerous refining influences. There have been countless grievances, arbitration proceedings, and lawsuits questioning the accuracy of the test methods and the reliability of the procedures used to take and transport the samples. The entire process has also been subject to legislative and regulatory review. Laboratories which conduct urine tests for purposes of drug screening in New York State must obtain a Forensic Toxicology permit form the New York State department of Health. The department's Proficiency Testing Program Guide states that to qualify for this permit, a laboratory ". . . must support protocols for specimen chain-of-custody, laboratory security, and result confidentiality. The laboratory must also maintain acceptable methods for the confirmation analysis of presumptive positive drug screens."

Blood Tests

Blood specimens are sometimes taken to confirm (or rebut) the results of an alcohol breath test, or urine test for drugs. Such tests are reliable and accepted, but are not routinely used, as the tests are more expensive than other test methods. Furthermore, the compulsory taking of a blood sample is considered to be an even greater invasion of privacy than the taking of a urine sample.

Hair Testing

The newest test for the detection of drug use is hair testing. The NYC Police Department began using hair testing to screen probationary employees a few years ago, and now uses it also in its random testing program or regular officers. The many advantages of hair testing are likely to result in an increasing use of this method of screening. Taking a small hair sample from a person does not require privacy, and is not as intrusive as the taking of a urine or blood sample. In addition, hair testing is better at detecting long-term drug use than any other test. While a urine sample can reveal cocaine use in the prior three days or marijuana use in the prior thirty days, hair testing will detect the use of those drugs in the prior six months. The Appeal Board has recently ruled that hair tests can provide reliable evidence of drug use (A-750-2109; AB 479,408).

After an Accident

Drug testing typically comes to our attention in unemployment insurance cases when an employee fails a test, or refuses to take a test, and is discharged as a result. Refusing a take a drug or alcohol test required by employer's policy, or by federal regulations to which the employer is subject, has been repeatedly held to be misconduct. In AB 416,974 the employer, a manufacturer of large industrial batteries, had instituted a policy requiring employees involved in industrial accidents to submit to drug and alcohol testing, and provided further that refusal to comply with the policy could result in discharge. The claimant, operating a vehicle similar to a forklift, struck a co-worker, and refused thereafter to submit to a drug test. The Board concluded his refusal was misconduct.

Drug Paraphernalia & Under the Influence

In similar cases involving the refusal to take a drug or alcohol test, misconduct was found when employer's policy was found to be reasonable and when there was specific justification for attempting to test the employee. For example, the claimant in AB 431,862 was discharged for refusal to take a drug test when circumstances arose which created a strong suspicion that claimant was under the influence of drugs. The circumstances included claimant's blood-shot eyes and disorientation and a hypodermic needle found in a bathroom stall the claimant had just left. In this case also the Appeal Board held that claimant's refusal to take a drug test was misconduct.

An essentially similar pattern of facts produced a similar decision in AB 410,267. It was concluded by the Board that claimant's presence in the employer's parking lot when he should have been at this work station, on two occasions, coupled with his mumbled and confused response to security's questions, gave the employer a reasonable basis for demanding that claimant take a drug test. The Board also found that at the time of hire, claimant had signed a document giving his consent to ". . . intermittent and unscheduled blood and urine, drugs and alcohol screening, as determined appropriate by the employer." Thus, the conditions described by the Board in AB 383,643 were met: there was a reasonable suspicion of drug use, and advance notice that testing was to be a condition of employment. Claimant's refusal to be tested was consequently misconduct.

The phrase, "chain of custody", refers to the procedures that are designed to preserve evidence until it is introduced at a trial or hearing. In unemployment insurance drug cases, evidence of the chain of custody includes documents and testimony which establish who possessed the blood, urine or hair sample beginning with the time it was first obtained, and ending when the sample is tested at the laboratory and the results are reported. Local office fact finding need only establish that the employer has a procedure to ensure the validity of the test, and that the procedure was followed. The substantial burden of proof though, must be borne by the employer.

Specifically, when a person who tests positive for drugs asserts that the test results are wrong, the employer must prove that the laboratory properly tested claimant's urine and accurately reported the results. Evidence must therefore be produced regarding: 1) the chain of custody of the sample, and 2) the accuracy and reliability of the test methods. At a hearing an employer would need to produce an expert witness, usually a chemist, as well as documents and testimony about the taking, packaging and labeling of the sample; employer would have to establish where the sample was placed after it left claimant's possession, how and by whom it was transported to the laboratory, as well as the further chain of custody once it arrived at the lab (AB 412,469). If such evidence is inadequate, claimant's challenge of the test results would very likely prevail (AB 422,868).

The Appeal Board has held however, that when the person who failed the drug test has admitted to having used the substance in question, evidence regarding the chain of custody and the expertise of the persons conducting the tests is not necessary. Such an admission against interest is sufficient to establish misconduct (AB 425,094).

There are legitimate reasons why an employer might wish new employees to have a physical examination: for example, to reduce the cost of group health and life insurance, to reduce potential liability in the event of an on the job accident, and others. However, in order to protect persons with disabilities from discriminatory hiring practices, the provisions of the New York Sate Human rights Law (Executive Law, Art. 15), prohibit an employer's requiring a job applicant to submit to a medical examination as a condition of hire, unless the requirement is based on a specific occupational qualification. Therefore to avoid any possible violations of the law, many employers delay scheduling medical examinations until a few days after the employee starts working.

If medical examination under these circumstances were to include a drug screening test, and a worker were to fail the test, revolving a subsequent unemployment claim for such a person would be very straightforward. Since this would not be a "pre-employment" test, but a test in the course of employment, a worker who failed, in violation of an employer rule, would be subject to a misconduct disqualification just as any other worker would be.

In a recently decided case, it was found that the employer failed to conduct a pre-employment drug test required by Federal Regulations in effect with respect to commercial drivers. Instead, the employer conducted the test a few days after claimant's employment had commenced. The claimant tested positive for marijuana and was discharged. The Appeal Board did not consider it significant that the test was not administered until after the claimant began working. Nor was found controlling that the claimant may not have used the drug on or after the date when he began his employment. The Board sustained the misconduct disqualification due to the potential dire consequences of a driver's marijuana use (AB 493,577).

The pre-employment testing of job applicants to determine whether they are engaging in the illegal use of drugs does not in fact violate the provisions of the Human Rights Law. With respect to the use of controlled substances, the statute protects only those individuals who are either rehabilitated substance abusers, or are in the process of being rehabilitated. In addition, the Federal Regulations mentioned above require pre-employment drug screening for some occupations. Therefore, it is necessary now and then to resolve the claims of persons whose unemployment is attributable to their failing a pre-employment test. Pre-employment drug testing is not uncommon, and a worker's failing such a test can result in a disqualification from benefits.

For example, a person who quits a job to accept another position which is offered on the condition that the applicant pass a drug test, should be disqualified for voluntary leaving without good cause if he or she fails the test. The employment offer could not be considered a definite offer, since it was conditioned on the test results. In addition, the applicant should certainly have known that he or she would not pass the test.

A recent claim for benefits provides another example. The case involved a worker whose last assignment with an employment agency prior to the filing of an unemployment claim, ended due to a lack of work. Thereafter, the claimant was offered another assignment through this agency while the claimant was still in benefits. The client, at whose place of business claimant would be working required, for legitimate reasons, that the claimant submit to a urine test for drug screening purposes before employment could begin. Claimant's refusal to submit to such a test was deemed a disqualifying refusal of employment.

In general, if a person fails an alcohol breath test pursuant to an employer's policy or to Federal Regulations, and attributes such failure to something other than a prohibited consumption of alcohol, his statements should be scrutinized and closely questioned. For instance, a claimant might contend that he consumed a prescription or over the counter cough medicine containing alcohol. Such a claimant must be asked to identify the precise medicine, to state its alcohol content (indicated on the bottle), and to specify how much of it was consumed in the six to eight hour period prior to the breath test. Although it is tempting to dismiss such a claimant statement as incredible, strictly speaking its rebuttal requires expertise. The employer would ultimately need to provide expert evidence that the test result would not have been caused by the amount of cough medicine consumed.

Although the expert opinion of a qualified chemist is often necessary to rebut the specific denials heard from those accused of inappropriate alcohol or drug use, some general knowledge about the rate at which alcohol is metabolized may make it easier to distinguish credible explanations from unlikely and preposterous ones. According to the American Medical Association, an average sized person who consumes three or four units of alcohol within an hour or two, and then stops, will have a blood alcohol level which peaks three to four hours after he or she began drinking, at a level at or above the legal limit for driving in most states. The alcohol would not be completely eliminated from the body until six to eight hours after the drinking began. One "unit" of alcohol is defined as a small glass of wine, a glass of beer, or a shot of hard liquor.

In a recently argued case currently pending before the Appeal Board, the claimant, a commercial driver, failed a breathalyzer test administered at the end of his eight hour shift. Although the test indicated a low amount of blood alcohol, employer had a zero tolerance policy. Furthermore, the employer believed that any alcohol reading signified that the claimant had been drinking during his shift. Claimant was discharged. The claimant argued that he did not drink during his shift and that the test result could only have been caused by the drinking he did the night before. He stated he stopped drinking at 11:00 p.m. The employer produced an expert witness who testified that claimant's story was not possible. A positive reading at the end of his shift had to have come from alcohol he consumed during the previous six to eight hours.

SUMMARY

* Employers can legitimately demand that employees submit to drug and alcohol tests.

* Failing a test or refusing to submit to a test is misconduct.

* Common test methods:

1. alcohol - breathalyzer or blood test;
2. drugs - urinalysis or hair test

* Failing a pre-employment test can also be disqualifying.

* Common evidentiary problems:

1. claimant's denial of drug or alcohol use requires employer to demonstrate chain of custody

2. claimant's statement, although lacking credibility, must be rebutted by an expert.

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION

REVIEW LETTER 2-99

FEBRUARY, 1999

ALCOHOLISM

It has been seventeen years since the writing of the division's last overview publication on the complex and difficult subject of alcoholism, Field Memo 6-82. Although the principles described therein remain valid, the unemployment insurance case law pertaining to alcoholism has expanded considerably in the intervening period.

This Review Letter surveys the current state of the case law with respect to alcoholism. The principles described in Field Memo 6-82 are reviewed, and new rules and concepts, established by Appeal Board and Court decisions, are discussed. Particular attention is paid to cases in which the Board or the Court decided that a claimant's actions leading to his loss of employment were disqualifying, notwithstanding the fact that claimant was an alcoholic.

You will also notice that within the text specific Appeal Board and Court cases are identified. Although this is not a common feature in the composition of Review Letters, it is felt that due to the encompassing scope of this overview, such specific references would aid readers in their own further research on this topic.

The prior analysis of cases dealing with alcoholism, and actions by an alcoholic, established some broad principles, that while still valid principles, need closer examination in their application. Further rulings by the Appeal Board and the Courts have examined the extent to which claimant's actions can be, or should not be, excused because the claimant is identified as an alcoholic.

In addition, in the passage of seventeen years since that memorandum, a vast evolution in the recognition of alcoholism as a work-related problem has given a strong impetus to the creation and use of Employee Assistance Programs. As employers have become more compassionate in their policies toward the alcoholic employee, and provided additional resources for the protection of employment in the face of this illness, an increased responsibility also arises on the part of the worker to avail himself of such assistance to safeguard employment, while addressing the effects of his illness on his employment.

There are many specific instances of behaviors by an alcoholic that have been ruled on by the Appeal Board to clearly constitute misconduct. The purpose of this review is to distinguish the actions that were beyond the claimant's control, because of his addiction to alcohol, and the actions that do pass the threshold test of "volition", and therefore are disqualifying misconduct.

An action in transgression of an employer's rule does not constitute misconduct simply because it is a violation of a rule, or because it is offensive to our commonly held values, but because it is deliberate. An act, or a careless omission, is misconduct if it was within the control of the person who committed that act. Conversely, an act is not misconduct if it was entirely beyond the control of the person who committed it.

Drinking alcohol to excess is the act that is beyond an alcoholic's control. Inebriation is a passive effect, resulting directly from the consumption of alcohol. A characteristic of alcoholism is the inability to judge one's own inebriation.

For the purposes of determining and distinguishing what actions are entirely attributable to the disease of alcoholism, and those actions which do constitute misconduct, whether or not the person who committed them is an alcoholic, we must consider the factors of control and deliberateness, as demonstrated in claimant's actions.

The illness of alcoholism is characterized by a lack of control over drinking alcohol, and inebriation. When the evidence of claimant's alcoholism has been established by appropriate proof, it is a defense for drinking alcohol; and the lack of control takes the drinking out of the realm of misconduct. It does not take all the other actions by an alcoholic out of the realm of misconduct, as alcoholism does not render all other actions involuntary, or beyond the control of the alcoholic.

However, when the evidence establishes that the claimant had a drug problem as well as an alcohol problem and the discharge was caused by repeated absences from work resulting from dependency upon both alcohol and drugs, a disqualification for misconduct is appropriate. The Appeal Board held that alcohol abuse does not excuse the use of drugs. A claimant who is an alcoholic, fired from her job for testing positive for cocaine, was held disqualified for misconduct notwithstanding her claim that she only used cocaine when she was under the influence of alcohol (AB 426599).

PROOF OF ALCOHOLISM

In order to excuse an act that might otherwise constitute misconduct, due to the illness of alcoholism, the claimant must produce competent evidence of this condition (AB 470901). A claimant's self-serving and unsubstantiated lay opinion is not adequate proof (AB 435359).

The clearest proof of alcoholism is medical evidence of treatment for the disease during the course of employment. Evidence of participation in Alcoholics Anonymous or similar programs while employed, evidence of recent attempts to enter an alcohol rehabilitation program, and evidence of a history of drinking problems on the job can serve to establish that an individual is an alcoholic (AB 477473). However, it is now widely understood that alcoholism is considered an illness. Care must therefore be taken to distinguish true alcoholics from those seeking to create an excuse for their improper behavior (AB 445561).

A recent claim for benefits involved a former NYC Police Officer, fired for stealing hubcaps while off-duty. He and his partner were caught red-handed, but argued at their disciplinary hearing that they were alcoholics, and were drunk at the time of the theft. The trial commissioner who presided found this explanation to be "...self-serving and tailored to diminish (their) liability for (their) misconduct". Neither officer had ever claimed to be an alcoholic, nor received treatment for alcoholism, prior to the theft.

Although these officers would have been disqualified from benefits due to misconduct whether alcoholics or not, a finding of alcoholism by the hearing officer might have saved their jobs. This case illustrates the reason why after-the-fact claims of alcoholism should be viewed with suspicion, particularly when an employee repeatedly denied being an alcoholic, or refused assistance while employed.

Evidence of the existence of alcoholism at the time of the commission of an act that causes claimant's discharge needs to be carefully evaluated. Where an employer has confronted an employee with a question about suspected alcohol abuse, and provided the employee the opportunity to address his illness, a denial by the employee that he is an alcoholic should not be disregarded. Nor should such a denial be viewed as a symptom of alcoholism, in the absence of other evidence of the disease. When the claimant had denied that he is an alcoholic, and failed to remedy the work-related problems identified by the employer, neither his later statement that he is an alcoholic, nor his post-employment treatment for alcoholism, can serve to excuse the earlier actions that caused his discharge (AB 454380).

A claimant is not disqualified for actions that are beyond his control: when a claimant has lost employment due to an act that is entirely attributable to his alcoholism, he is not held to have committed misconduct. Following prior disciplinary dismissal, a claimant had been rehired under the conditions of a "last chance" agreement, to remain alcohol free, and to submit to random testing. A positive test result would result in his immediate discharge from employment. Three months later, he reported to work smelling of alcohol, and a blood test confirmed the presence of alcohol in his system. Claimant admitted that he had been drinking the night before. The Appeal Board held that his failure to remain alcohol free was a "slip", and could not be characterized as misconduct. The Appellate Division affirmed, finding that the claimant's alcoholism caused the behavior that lead to the discharge (Matter of Snell, 195 AD 2d 746).

A discharge for failure to remain alcohol free, as agreed to 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. However, failure to comply with the attendance requirements of a rehabilitation program, that is, to attend scheduled counselling sessions or AA meetings pursuant to an arbitration stipulation, is misconduct, as this behavior is well within the claimant's control. (Matter of Restifo, 88 AD 2d 1045; AB 407,090).

It remains true that while a disqualification from benefits would ordinarily arise in a case of excessive absenteeism for personal reasons, such disqualification should not be imposed when the absences are due to alcoholism. This is because alcoholism is an illness, and absence due to illness is not misconduct.

However, it is not true that any action related to the illness of alcoholism would fail to constitute misconduct. It is clearly justified to hold that a worker who was ill, and absent from work, but failed to call for non-compelling reasons, has committed misconduct. Notwithstanding the compelling reason for the absence, failure to call can constitute misconduct, when this failure was due to circumstances within the worker's control (AB 454149). The responsibility to call in when absent exists for a claimant who is ill due to the flu; it exists also for the claimant who is ill due to alcoholism. An employee who is an alcoholic, and who cannot report to work, is still expected to call in as required, unless he is physically incapable of doing so. The fact that he does not wish to reveal his illness to the employer is not a compelling reason for failing to call in. His responsibility to contact his employer to notify him of the absence is not removed; his failure to properly notify the employer as required is misconduct regardless of his alcoholism (AB 402,246; Matter of Morse, Appellate Division decision dated Sept.17, 1998).

A claimant, who was employed as a helper to a printing press operator, had received repeated warnings about his attendance. He was absent, and called in to tell his employer that he was ill. The next workday, he called in and advised the employer that his grandfather had died. He was granted three days leave of absence pursuant to the employer's bereavement policies for close relatives. In fact, the claimant's grandfather had not died. When the employer learned that the reason claimant had given for the absence was false, the claimant was fired. Even while claimant's absenteeism problems stemmed largely from claimant's alcoholism, the Appeal Board held that lying to one's employer is misconduct, and the fact that claimant is an alcoholic did not excuse this action (AB 446,322).

A worker who takes alcoholic beverages belonging to his employer without authorization, has committed theft. Such theft is not excused by the assertion that claimant stole the alcohol for his own consumption, and that he is an alcoholic. There is no proof that the disease of alcoholism causes one to steal. In two separate cases, the Appeal Board ruled that the claimants' acts of theft justified disqualification from benefits (AB 416,987; AB 465,642).

Two other cases involved thefts committed by alcoholic employees while under the influence of intoxicants. One worker attempted to steal cooked shrimp from his employer, the other stole cash from a co-worker. The Appeal Board held that alcoholism does not mitigate theft or attempted theft, whether or not the individual was under the influence of alcohol at the time of the theft (AB 484,196; AB 415,934).

A claimant who had previously received warnings for violations of the employer's rule against leaving work early without permission, was discharged after again violating this rule. The claimant stated that he left work early because he wanted to spend more time in the local bar, claiming that this was compelled by his alcoholism. The Appeal Board found that it was significant that claimant was sober at the time that he left work early, and rejected the contention that claimant had no control over his actions. His awareness that his job was in danger, and his admission that he could have stayed until the end of his shift, contradicted the allegation that claimant's acts were involuntary (AB 409,288).

When a person has decided to consume alcoholic beverages, he is risking inebriation. When he further decides to report to work under the influence of alcohol, he is taking a risk that his work performance will be affected, sometimes with potentially disastrous consequences. If reporting to work under the influence of alcohol is a violation of safety regulations, it is misconduct.

A claimant who becomes inebriated during working hours, or who reports to work in an inebriated condition, in violation of an employer's policy of a drug/alcohol free workplace, is subject to a misconduct disqualification, even if an alcoholic. The Appeal Board held that a claimant who drank at lunch and returned to work in an inebriated condition, despite prior warnings about drinking on the job, was guilty of misconduct. Although claimant was an alcoholic, he was aware his job was in jeopardy and chose not to take advantage of his employer's offer regarding a rehabilitation program (AB 442010).

The fact that claimant was inebriated at the time that he committed another action which caused his discharge from employment, does not categorically preclude a determination that his actions constituted misconduct. Claimant's alcoholism does not excuse him from the consequences of actions he took while under the influence of alcohol, when those actions in themselves would constitute misconduct. While an alcoholic may not be able to control his consumption of alcohol, and consequent inebriation, he is not excused from the consequences of acts committed while intoxicated. It is misconduct to engage in a fistfight at a company party when one is drunk, whether or not one is an alcoholic.

DRIVING UNDER THE INFLUENCE OF ALCOHOL

A multitude of decisions by the Appeal Board have long since established and reaffirmed the principle that a loss of employment that requires a valid driver's license, due to the loss of the license for Driving While Intoxicated, is disqualifying. Even when the claimant is an alcoholic, and his drinking may be beyond his control, his decision to get into his car and drive is not excused, despite the fact that that decision was made while under the influence of alcohol (AB 409160; AB 413874; AB 416606).

A claimant was arrested and incarcerated for driving while intoxicated. He was absent from work for several days, and discharged as a result. The Appeal Board held that the claimant's alcoholism was not a defense to his driving while intoxicated, nor did it excuse the extended absence due to incarceration that ended claimant's employment (AB 384215A; AB 441529).

A claimant, who was an alcoholic, was observed by his supervisor not performing his assigned task. At that time, the supervisor complained about the claimant, and the claimant approached the supervisor and struck him in the face. Claimant was discharged because of the assault upon the supervisor. The Appeal Board rejected the contention that because the claimant was under the influence of alcohol, his actions must be considered part of his illness for which he was not responsible. The assault was held to constitute misconduct (AB 361894).

Another claimant, who was an alcoholic, was employed by a cleaning service contracted to clean a train station. He was found to be intoxicated at work, and was directed to go home. He did not leave, but rather went into the office of a female railroad announcer, and made unsolicited sexual advances toward her. The Appeal Board held that the claimant's alcoholism and inebriation do not excuse his actions (AB 441399). The Appellate Division affirmed the decision of the Appeal Board.

A claimant who worked on the night shift for a baking company had previously been through an alcoholic inpatient program. Subsequently, he had received a disciplinary suspension for falsification of time records. Seven months later, claimant again falsified his time records for two successive dates, by leaving early from work and writing in a later time. Claimant was under the influence of alcohol on these dates. The Appeal Board held that such falsification of time records were acts of dishonesty that amounted to theft of wages. This was not excused due to alcoholism, and did constitute misconduct (AB 447,998).

The next case involves a complex set of facts. A claimant had previously received inpatient treatment for alcoholism, and had regularly attended aftercare therapy and AA. Claimant was working as a driver for a food service company. Prior to the start of his workday, claimant had some alcohol. He realized he would be late for work, and called his employer to advise that he would be late. He intended to go home to shower, sober up and report to work. He planned to work as a helper and have his partner do the driving. When he got home, he got into an argument with his wife, and continued his drinking, rather than go to work. He did not report for work or contact his employer to revise the message that he had previously left. He was consequently discharged from his job.

The Appeal Board held that the claimant demonstrated sufficient control over his actions to be held to have committed misconduct in connection with his employment. He had realized that he needed to sober up before coming to work, and had called the employer to advise of his anticipated lateness. He had stopped his drinking, he had even planned to refrain from driving; he was taking responsible steps, before he made the choice to resume his drinking. Based on all these facts, the Board concluded, the claimant's medical condition of alcoholism did not cause his absence from work, and his acts constitute misconduct (AB 410655).

Whenever a claimant exercises awareness and self-control in connection with acts that caused the discharge, it may be possible to conclude that such acts are not attributable to his disease. The more control demonstrated, the more claimant's contention that the acts are involuntary is undermined and belied.

The Omnibus Transportation Employee Testing Act of 1991 requires alcohol and drug testing of safety sensitive employees in mass transit systems. Pursuant to this Congressional mandate, The Federal Transit Administration (FTA) has issued regulations requiring alcohol misuse prevention programs and establishing clear procedures that must be followed by public transportation system employers to ensure public safety.

All employees who perform safety sensitive functions are subject to these regulations. A safety sensitive function is said to be one which is "... fraught with such risk of injury to others that even a momentary lapse of attention can have disastrous consequences." Such functions are performed by those who:

The significance of this designation is that workers who perform these functions are required to be subjected to random alcohol breathalyzer tests. Any such worker who refuses to submit to the test, or who has a test result of 0.04 or greater must be removed from safety sensitive duties, must be referred to an alcohol treatment program, and cannot be returned to work in such duties until cleared for return to work by a Substance Abuse Professional (SAP). An SAP is defined as a physician, or a licensed or certified psychologist, social worker, or employee assistance professional with knowledge and experience in the diagnosis and treatment of alcohol related disorders; or an addiction counselor certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission.

The regulations also specifically prohibit drinking any alcohol within four hours of the start of one's shift, and of course, drinking during one's shift. In separate decisions, the Appeal Board has sustained disqualifications arising from violations of these two regulations, despite the workers' alcoholism, because of the potential for harm to the claimant himself, to his coworkers, and to the customers of the transit system (AB 471,802, AB 479,891). In neither case did the Board find any excuse in the fact that the claimant did not actually perform any work on the day he reported in an impaired condition.

A safety sensitive employee who loses employment due to failing a breathalyzer test, or violating any of the alcohol regulations, has committed an act of misconduct even if he or she offers alcoholism as an excuse. Such a worker has violated the employer's rules and Federal Regulations and has endangered the safety of the public, his co-workers, or both. The situation is analogous to driving while intoxicated. But an important element of the FTA Regulations is that they make no distinction between vehicle operation and other safety sensitive functions. A track installer, conductor or mechanic is every bit as responsible for the public safety as a bus or train operator. Therefore any violation of the regulations by any safety sensitive worker is inexcusable.

Workers who lose employment in this circumstance must also be deemed ineligible for benefits on the grounds of incapability. The Regulations require that a worker who fails a breathalyzer test be referred to counseling, and further require that he or she cannot return to duty until cleared by an SAP. Such a worker is incapable due to the regulatory requirements, whether or not the worker is an alcoholic.

A claimant had been employed as a postal clerk, and she transferred from NYC to upstate. She accepted and worked a part-time flexible schedule, subjecting her to varying work hours and days. Claimant was a recovered alcoholic, and attended AA meetings five days a week, three hours a day. Her varying work schedule made it impossible for her to maintain her attendance at AA, and she sought assistance through the EAP program, which did not meet her need. Eventually she quit her job because her health was in jeopardy. The Appeal Board held this to be good cause (AB 381,830).

In another case, a claimant had worked as a banquet manager for a country club catering establishment for five years. During this time, she became an alcoholic. She was exposed to and tempted by alcohol which was available to her during working hours. She resigned and entered rehabilitation immediately. She was recommended to seek another occupation, away from circumstances in which she would be exposed to alcohol. The Appeal Board held this voluntary leaving to be with good cause (AB 392,237).

However, a claimant who left his job as a trucker after his release from drug rehabilitation did so without good cause. He had advised his drug counselor, but not his employer, that co-workers were using drugs. The employer had no opportunity to investigate and correct the problem. In addition, the Appeal Board ruled that because the use of illegal drugs is subject to strict legal prohibition against possession and sale, and the negative consequences of its use can or should be reasonably foreseen, this is not good cause to quit one's job (AB 458,060).

In all instances where a claimant's separation from employment was related to alcoholism, the courts have recognized the need to determine if the individual is capable of work (Matter of Grajales, 104 AD 2d 688). Therefore, this issue must be thoroughly explored. As in any other case where separation from employment was the result of illness, or illness related circumstances, there must be additional fact finding and a determination of the alcoholic claimant's current ability to work in a safe and sober manner.

Evidence of the successful completion of a formal alcohol treatment program at a medical facility, with or without a period of hospitalization, but with on-going counselling of some kind is sufficient to establish recovery from alcoholism, and current ability to work (AB 418,117; AB 480,461). Attendance at AA meetings however, is not reliable evidence of recovery (AB 480,461). Anyone can continue to drink while attending AA meetings, and many people do (AB 418,011). Furthermore, the second "A" in AA stands for anonymous. No attendance is taken at AA meetings, and consequently no claimant can provide corroborative evidence of regular attendance at such meetings.

Failure to present competent medical evidence of treatment of the disease, from a substance abuse professional who is qualified to judge that claimant is now capable of working, should result in a determination that the claimant is not able to work. Such medical evidence would be considered competent if presented or written by a medical doctor (MD), psychologist (Ph.D.), certified social worker (CSW or ACSW), or certified alcoholism counselor (CAC). When such evidence is presented, the claimant's availability for employment demonstrating a genuine attachment to the labor market should also be explored.

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION

REVIEW LETTER 2-97

JUNE, 1997

MISCONDUCT OR "POOR JUDGMENT"?

From time to time, it is necessary to revisit issues which are thought to be simple, in order to refamiliarize ourselves with the legal principles at work. To often, individual case details tend to obscure the underlying framework, and the shorthand phrases we habitually use tend to confuse rather than clarify these issues.

This Review Letter discusses some of the ways by which misconduct can be distinguished from non-disqualifying acts and omissions. It examines the implications of the phrases and concepts frequently used to describe circumstances which cause people to be terminated from employment. The discussion is enhanced with numerous examples from the Interpretation Service Index and from case law.

INTRODUCTION

The word "misconduct" is not defined in the Unemployment Insurance Law. Black's Law Dictionary however defines it as:

"A transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, wilful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."

This is a general definition, and not one which is intended to specifically nor exclusively apply to Unemployment Insurance matters. But by distinguishing misconduct from negligence and carelessness, it highlights one of the thornier problems that occurs in the adjudication of misconduct allegations. The problem can be stated as follows: when is an act or omission, which adversely affects the employer, sufficiently excusable that the misconduct disqualification is inappropriately harsh? The Appeal Board and the courts have found some acts of negligence and carelessness to constitute misconduct, and others to be excusable. How does one distinguish between an incompetent employee and one who just won't do the job as he is told? Where and how can these lines be drawn?

POOR PERFORMANCE

In the introduction to the Misconduct section of the Interpretation Service Index it is stated that misconduct can be any volitional act or omission which is detrimental to an employer's interest, and can include acts or omissions off the job as well as on the job. But, it is added, misconduct does not include:

mere inefficiency,

inadequate performance as a result of inability or incapability,

inadvertent or ordinary negligence in isolated instances,

good faith errors in judgment or discretion.

There is often no attempt to distinguish between the first three situations, and the phrase "poor performance" has been used to refer to any and all of them. "Poor performance" is best illustrated in those situations in which an individual's best efforts were simply not good enough: the production worker who tries but can't quite work fast enough; the used car salesman whose "pitch" is insufficiently persuasive; the executive who can't pull his department out of the red. Such persons are not disqualified from benefits.

This seems a clear enough idea, but it has nevertheless been misapplied. An ALJ once found that an employer had failed to demonstrate at the hearing that claimant's sleeping on the job adversely affected his performance. Even had the employer done so, the ALJ continued, poor performance is not misconduct. The ALJ erred in substituting in his mind the phrase "poor performance" for "inadequate performance as a result of inability or incapability." Had he applied the latter idea to his fact, none of which suggested inability or incapability, he would have reached a different conclusion, resulting in the denial of benefits.

"POOR JUDGMENT"

More troublesome is the phrase "poor judgment", an abbreviated version of the fourth exception to misconduct, "good faith errors in judgment or discretion". This phrase has proven to be much more mischievous than "poor performance" ever was. To begin with, it is not immediately apparent why "poor judgment" would constitute an exception to misconduct. Doesn't every act of misconduct involve some poor judgment?

Hasn't the person who lost employment as a result of excessive lateness with no justification exercised poor judgment? When a grocery clerk steals a candy bar from his employer and gets caught, hasn't he exercised poor judgment, (both in the taking and the getting caught)? Indeed, the "poorness" of judgment has often been the standard by which misconduct has been measured.

In cases involving an allegation of insubordination, for instance, the reasonableness of the employer's rule or directive is weighed against claimant's "judgment" in disregarding it. A machinist's refusal to wear safety goggles, despite the employer's rule, implemented with his union's approval to reduce eye injuries, is clearly poor judgment, and also misconduct. Conversely, the Appeal Board ruled that a claimant's refusal to shave his facial hair, in violation of his employer's policy, did not constitute misconduct. The Appeal Board resolved the issue based on the intrusiveness of the policy, which it found to be unreasonable. The Appeal Board chose not to comment on the judgment of a worker who would forfeit his employment for his beard; and while it would be easy to call the claimant's judgment poor, one would still agree with the Board's resolution of the misconduct issue in the claimant's favor. (However, where the employer has articulated a reason for having such a policy, for example, to insure the proper fit of personal protective equipment such as a dust mask, claimant's failure or refusal to adhere to the policy is misconduct.)

Deciding that a claimant's judgment was poor is quite simply not a reliable way to resolve misconduct issues. In general, it would be easier to argue that misconduct is a type of "poor judgment", than to assert that "poor judgment" is an exception to misconduct.

EMPLOYER'S RULES & INSTRUCTIONS

Despite its potential logical difficulties, the phrase "poor judgment" has been used in a great variety of situations, and with increasing frequency. It has been misused to excuse: sleeping on the job by a security guard; a youth counselor's fraternizing with a resident after hours in clear violation of employer's rules; a home attendant's leaving a two year old child alone twice in one day, and many other acts and omissions.

However, when facts establish a final precipitating incident in which a worker decided to ignore a reasonable rule, law, regulation, established procedure, or frequently repeated instruction, neither the poor judgment exercised, nor the poor performance that resulted can serve to later the conclusion that such a person, when fired for this act, is unemployed due to misconduct.

The Appeal Board once considered the case of a pharmacist who improperly filled a faulty prescription for a narcotic. The pharmacist had ignored the fact that the customer had himself entered the quantity of tablets on the prescription form in the pharmacist's presence. This, the Board noted, violated Department of Health Regulations and was "more than mere poor judgment." Similarly, a cashier's leaving the register open and unattended, resulting in theft by a customer, was found by the Appeal Board to be misconduct, since the employee had been recently warned about such behavior.

The Appeal Board has also found misconduct in a multitude of cases involving bank tellers whose failure to follow the bank's procedures enabled someone to cash a fraudulent check. The same conclusion could be reached with respect to a grocery clerk who failed to follow the store policy regarding sale of tobacco or alcohol. therefore, a failure to follow policy in this regard transcends mere poor judgment, since it could foreseeably result in a violation of law.

An important element on these cases is that the claimants had an opportunity to consider the proper course to follow, and to foresee the consequences of their acts.

This is one reason why these cases are distinguishable from a waiter who trips and breaks some dishes, and a typist with a high error rate.

Poor judgment really implies an inappropriate decision or action in a discretionary situation within the bounds of an individual's authority, where differences of opinion are the norm. However, a violation of a rule or a repeated refusal to follow instructions, is knowingly acting contrary to an obligation about which individual judgment as to whether or not to comply is not permissible. If an employee knows a reasonable rule, he is expected to follow it; when circumstances arise which call for its application, substituting one's contrary judgment for the rule is insubordination.

INTENT

Some confusion arises when an action which was in violation of an employer rule, has not resulted in actual harm to the employer. Any intentional, or knowing act in violation of an employer rule is misconduct, whether the employee intended harm as a result to the employer, or genuinely did not intend or foresee harm. The Court of Appeals considered the case of a claimant who forged her supervisor's name to a request for information from an insurance company. The Court concluded that her act ". . . even though accomplished without intent to harm and not resulting in actual harm, constitutes misconduct . . .".

A recent case involved a bank teller who did not require a depositor, whom she knew, to sign a receipt indicating he had received the funds she gave him. This came to light when the depositor later claimed he hadn't received the money. As a result claimant was fired. When characterizing this act as a "honest mistake", the ALJ missed the point. The claimant knowingly violated a reasonable rule. The fact that claimant may not have intended to harm the bank is irrelevant. What matters is that she intended to ignore the rule requiring her to obtain the customer's signature. She did so deliberately, and without a compelling reason.

GROSS NEGLIGENCE

Many cases of misconduct have been heard by the Appeal Board which involve workers who, because of the nature of their work, are held to a particularly high standard of diligence in the performance of their duties. Workers who handle cash or are responsible for other's property, or who work in the health care field where inattentiveness can adversely affect a patient's health or even cause a loss of life, are examples of such employment.

"Gross negligence" is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. (Black's Law Dictionary).

A bus cleaner who simply fails to sweep under the farthest rear seat may not have committed misconduct; a bus matron who fails to search for the missing child by looking on the farthest rear seat has committed misconduct. The obviously more catastrophic and foreseeable result from a careless performance of particular tasks is the compelling criterion.

It is tempting to excuse the decision of a claimant to remain silent when he witnesses wrongdoings on the job, when he has properly chosen not to participate in such deeds. However, the Appellate Division and the Appeal Board have repeatedly held that when an employee becomes aware of a theft by a co-worker, he has an obligation to speak; his mere non-participation in the theft does not excuse his deliberate disregard of the employer's interest. Similarly, when an employee has been told of his duty to report any accident or damage, and he ignores this obligation, he has committed misconduct.

FIRST OFFENSE, OR NO WARNING NEEDED

Violation of an established rule or of a standard of behavior may constitute an act of misconduct even when it is a first offense. For example, theft, falsification of records including time cards, or drinking on the job may be sufficiently serious and require no prior warning. Certain behaviors, when deliberately engaged in, which are obviously detrimental to an employer's interest, are misconduct needing no warning. A bus driver who operates the employer's vehicle at a rate of speed exceeding legal limits is committing misconduct. A superintendent who stores an unlicensed shotgun on the employer's premises has committed an act in violation of law and in obvious transgression of his employer's best interest.

SUMMARY

The preceding discussion was not intended as a thorough analysis of all aspects of misconduct. It does however examine the usefulness of some of the more commonly used expressions, as well as some of the mistakes that arise when shorthand phrases substitute for more carefully thought our concepts.

Determinations issued that address misconduct, whether they are disqualifications or eligibilities, must clearly explain the determining factors that lead to the conclusion that an act was or was not misconduct. It is clearly not sufficient to characterize a claimant's judgment or performance as "poor", since this fails to distinguish it from misconduct.

An employer is always entitled to expect its employees to deal honestly, to exercise reasonable care and diligence, and to adhere at all times to its reasonable rules. when a claimant has been discharged for failing to do so, the determination must clearly address the characteristics of misconduct, and whether they are evident in this instance.

Good fact finding will distinguish a truly isolated instance of inadvertence from a repeated act of carelessness or wilful disregard of an employer's instructions. Proper questioning of the employer is used to uncover the evidence of prior training in procedures, or warnings following prior errors.

Good fact finding should show the difference between situations where a worker has been called upon to make his own judgment about how to perform a given task, and a situation where a worker has knowingly failed to follow the steps his employer was entitled to require of him.

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION

REVIEW LETTER 2-96

MARCH, 1996

DOMESTIC VIOLENCE

A topic of recent concern is the eligibility for unemployment insurance benefits of workers separated form employment due to acts of domestic violence. This Review Letter is a discussion of how case precedents are applied in resolving the eligibility issues of a claimant whose separation from employment resulted from circumstances involving domestic violence. It is the Department policy to ensure consistent and appropriate determinations and to provide continued sensitivity to domestic violence.

The most common issue raised for unemployment benefit purposes involving domestic violence is voluntary leaving of employment, often resulting from relocation of claimant's residence. Other issues arising in circumstances resulting from domestic violence include loss of employment due to chronic absences or prolonged absence.

While the leaving of employment due to compelling personal circumstances can be held to be with good cause, several factors must be examined to evaluate whether good cause exists. Prior cases decided by the appeal Board involving domestic violence, or circumstances with similar considerations are discussed below. These cases demonstrate the nature of evidence required to show that voluntary leaving of employment was reasonable.

Claimant may have quit employment based on fear for personal safety, after being threatened or assaulted, verbally or physically. The fact that claimant has been the victim of a crime is not, by itself, a sufficient basis to find good cause for voluntarily leaving continuing employment (Matter of Weinstein, 207 AD 2d 942). A number of factor must be considered to determine, 1) whether claimant's fear for future personal safety is genuine and reasonable, 2) whether claimant has taken appropriate steps to protect him or herself from the abuser and, 3 whether claimant has made an appropriate effort to safeguard employment while attempting to resolve these personal circumstances.

Claimant's ability to take these reasonable steps is, in itself, a factor to consider as well; evidence from claimant's physician, therapist or counsellor would be relevant on this point. While the actions of a claimant who quits employment are appropriately evaluated against a standard of "what a reasonable person would have done," it should not be ignored that claimant may have had to take immediate steps to address a crisis. The experience of domestic violence can be characterized as a crisis. The specific details about claimant's physical and psychological well being are relevant.

Fact finding must be done to ascertain the following:

*What evidence is there that claimant was harassed or assaulted?

*Was a police report filed? (Request a copy from the claimant)

*Did claimant receive medical care or psychological counselling?
If so, what advice was claimant given? (Request documentation)

*Where did the assault occur; at the workplace, at home, at some
other location?

*Did the assault occur on more than one occasion? What was the
most recent incident?

*Was an Order of Protection sought; if not, why not? Was it
granted; if yes, when? What are its provisions? (Request a
copy from the claimant)

*Had there been any further attempt by the abuser to harass or
assault claimant? If yes, where and when?

*Was the employer aware of the problem; was a leave of absence
available to claimant?

*Could the employer have transferred the claimant to another work
location? If so, did the claimant request to be transferred?

If claimant's leaving of employment resulted form a decision to relocate out of the area, additional considerations arise.

*Was the claimant's decision to move out of the area based on one
or more of these factors:

-loss of, or inability to afford prior residence

-other financial constraints due to change in family
income (loss of child care, e.g.)

-fear of remaining in proximity to the abuser

-personal preference to return to proximity of other
family members

-requirement of personal care (medical, psychological)
by family member

-specific recommendation by law enforcement or medical
professional.

Prior case law supports the principle that a claimant who has a genuine and reasonable fear for personal safety may have good cause to quit employment, if claimant has been assaulted at the workplace (AB 420,231).

Where claimant was threatened with assault at the workplace by her abusive spouse, she had cause to quit (AB 366,368). Claimant had frequently been beaten by her husband despite calls to, and in the presence of, the police. Her husband had threatened to come to the workplace, and had done so when claimant worked for a prior employer. Claimant was urged by a counsellor to relocate out of the area, given the ineffectiveness of police.

In another case, claimant was separated from her husband for two years. He continued to threaten her life at her job site and at her home, in spite of two protective orders obtained from the court. The appeal Board held that claimant's leaving was with good cause (AB 404,527, 2/8/91).

In AB 446, 920, claimant had an affair with a co-worker, and they had a child. The relationship then ended. The co-worker harassed claimant on an off the job and physically attacked him. Claimant filed a police report and advised the employer, who tried to keep the co-worker away from claimant. The co-worker continued the harassment, threats, and violent incidents. Claimant resigned after a request for transfer was denied. He relocated to another state. The appeal Board held this to be a voluntary quit with good cause.

However, where claimant has declined to press charges when the police have been called, and never sought to obtain an order of protection, good cause has not been found when claimant quit employment to relocate (AB 407,996, 10/29/92).

Where claimant has been a victim of a crime that occurred off the job, at or near home, the decision to relocate to an area beyond commuting distance is not automatically good cause for quitting continuing employment (Matter of Olinger, 176 AD 2d 433; AB 425,175). Claimant can reasonably be expected to pursue alternate housing arrangements locally, where such could be obtained and afforded. In the absence of other factors, if claimant has not made reasonable attempts to protect employment by seeking alternate housing locally, good cause is not shown for a voluntary quit (AB 429,101; AB 419,970; AB 418,372; AB 414,898).

If claimant's reason for not seeking housing locally is based on another, non-financial reason for leaving the area, that reason must be explored. Claimant should be asked to document such advice as may have been given that relocation out of the area was necessary. Claimant's personal preference to relocate to another area is not good cause in itself for quitting employment (Matter of Zimmerman, 166 AD 2d 862; Matter of Frankel, 26 Ad 2d 866).

One noteworthy case ruled on by the appeal Board involves a claimant who quit employment due to relocation beyond commuting distance (AB 417,527). This claimant lost his residence as a result of a court order removing him from the family residence, following his assault on his spouse. Because of an additional order garnisheeing his wages, claimant could not afford housing locally. The appeal Board ruled that since these circumstances resulted from claimant's assault upon his wife, the "reasonably foreseeable result of claimant's deliberate conduct carries with it the responsibility for its consequences". Claimant's loss of employment was disqualifying.

Where claimant has made a reasonable attempt to safeguard employment by requesting a leave of absence in order to resolve problems resulting from domestic violence, her decision to quit in order to relocate out of the area when the request for leave was denied, was with good cause (AB 446,316). Several months before the last day worked, claimant left her husband who had physically abused her. She obtained an Order of Protection. Subsequently she had the order withdrawn and moved back in with her husband. He resumed the abuse, and began to appear at the workplace and abuse claimant there. Claimant requested but was denied a leave of absence, to try to resolve the problems. She moved to Florida temporarily, then returned to NY and obtained another Order of Protection, and filed for divorce. Claimant has attempted to protect her employment, while taking steps to resolve the problems that arose when she had to relocate away from an abusive spouse.

It is also evident that loss of employment due to circumstances arising from domestic violence takes the form of discharge by the employer, due to chronic or prolonged absences. The basic considerations in these cases are:

The Appeal Board and the Court have long held that a discharge from employment based on circumstances beyond the claimant's control is not disqualifying. If the claimant was absent because of injury or inability to work, which can be verified through medical report, the remaining consideration is whether the claimant notified the employer. Since a worker may have rights to job protection under the Family Medical Leave Act, timely notification to the employer is an important consideration.

A claimant who fails to contact the employer when absent for even a short time, may be subject to disqualification if claimant does not have a compelling reason for failing to call or failing to arrange to have the employer notified.

A claimant who is fired for absence due to incarceration is subject to disqualification from benefits, where claimant is convicted of or has pled guilty to a crime. Incarceration is a foreseeable consequence of an action in violation of the law; a prolonged absence from work due to such incarceration violates a reasonable and implicit condition of employment, regular and prompt attendance.

In closing, separation from employment cases resulting from circumstances involving domestic violence require careful fact finding to determine eligibility for benefits. In general, numerous factors must be considered to evaluate whether claimant had a genuine and reasonable fear for his/her personal safety, and whether appropriate steps were taken to resolve the personal circumstances and to safeguard employment. Unusual cases or complex issues of this nature may be referred through normal supervisory channels to the Interpretation Central Services Unit of the Adjudication Services Office.

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION

This is the first of a new style of Review Letter which is intended to provide information in an informal fashion to assist Community Services Division personnel in understanding the background of various issues. These memoranda should be used in conjunction with the Interpretation Service Index and other research materials. They are not intended to stand on their own as providing policy guidance on any issue.

The question of when a claimant who wants to start a business becomes not totally unemployed can be better understood by considering the various steps such an individual might take to start a business. In this discussion we will examine some of those steps, discuss the practical reasons why an individual would undertake them, and comment on their implications for total unemployment.

EXPLORATORY/INFORMATION GATHERING

The first group of activities to be discussed is the exploratory or information gathering activities. Anyone thinking about starting a business would want to know before they do so that such a venture has a hope of success. There are several key elements to the success of any business venture. These can best be understood by a series of questions the prospective business person might ask:

• Is there a market for the product or service I intend to sell?

• Can I sell this product at a price that is competitive with other businesses selling the same or similar product or service?

• Do I have, or can I get, enough money to launch this business and sustain myself until the business starts to turn a profit?

• Can I obtain space at a price and in a location to make this business profitable?

SOURCE OF INFORMATION

To answer these questions the prospective business person might consult the Chamber of Commerce, the Small Business Administration, local banks, and real estate agents. The Chamber of Commerce would be able to give the prospective business person some indication of the market for his/her product or service in that community. A business person might also do additional market research including checking the ads in local papers that offer this product or service for sale. By checking the yellow pages and even making some random calls, a business person could further research product/service demand and price. The Small Business Administration would be able to provide information on grants and subsidized loans and also some expert guidance. By consulting a local banker, the prospective entrepreneur could obtain information about the availability of capital, the bank’s willingness to lend money on their business proposition, the interest rates and the general business climate. One method available to determine the amount of money that a bank is willing to lend is a line of credit. This represents the maximum amount the bank would lend the business person. Real estate agents might be questioned to determine both the availability and cost of a site from which to do business. Of course many small businesses are started in the owner’s home. None of the actions discussed so far in and of themselves would cause a claimant to lack total unemployment.

FILING CERTIFICATES/BANK ACCOUNT

The next group of activities to be discussed brings claimant much closer to lacking total unemployment. The first of these is the filing of a certificate of doing business. This protects the name of the concern and allows the holder of such certificate to transact business under that name. Such certificate can be used to open a business bank account. It can also be used to apply to the Department of Taxation and Finance for a permit to collect sales tax. A certificate of doing business (d/b/a) could cost as much as $100. It may be worth this sum to protect the name under which the prospective business might wish to operate.

A business checking account is somewhat more costly than a personal one. The business check book is rarely provided free and can cost as much as $50 or more for the first order of checks. There may also be a substantial monthly service charge.

Although there is no filing fee for a sales tax permit, there is no apparent reason to get one unless it is to be used in the immediate future.

Neither of these three elements is conclusive either way as to whether claimant lacks total unemployment. A claimant could operate a full-fledged business as an individual using a personal checking account. Conversely, an individual could register a business name to protect it without being ready to operate. It is possible that any or all of these three steps would not yet cause claimant to lack total unemployment. However, we would want to know why they were taken, especially if the self-employment activity had not commenced.

THE LEASE

The activities that follow will almost certainly show a person is in business and not totally unemployed. The signing of a lease may follow a period of negotiation during which the terms – amount of rent, duration, services to be provided by the landlord are being negotiated. This period of negotiation may not constitute employment by itself. However, the signing usually requires at least two months rent and represents a substantial commitment. The lessee – the business person – is also usually made personally responsible for the rent each month.

THE EQUIPMENT

The next step, having obtain a business site, (remember that step could be skipped if the claimant is operating out of his/her home) is to purchase or lease the equipment necessary to do business. In some cases this can be an enormous investment (power brakes, drill presses, etc.) in others none at all (A personal computer may be converted to business use, already owned carpenter’s tools may be used).

THE SUPPLIES

Once there is a site and equipment the next step may be to purchase supplies (a manufacturing or construction business) or inventory (a retail business – on site or mail order). In a service business, of course, supplies may be minimal (a business service such as computer consultant). In most retail concerns, the inventory may be extensive, but in some mail order businesses it can follow the solicitation of orders. Many of the "Greatest Hits" record offers we see on television, do not manufacture the cassettes or compact discs until orders are received.

A major start up expense is the cost of "stationery." This includes business cards, stationery and/or envelopes with the business name and address pre-printed, billing or invoice forms, and literature (such as catalogues), to market the goods or services. It is important to determine when this stationery was ordered and in what volume. Note that with imprinted stationery the more you order, the lower the cost per item.

THE CUSTOMER

The soliciting of customers is another indication of an operating business. However, it is important to distinguish between speculative questions and offers to provide goods and services. There is a substantial difference between "If I could provide you will all day lollipops at ten cents a piece, would you buy?" and "I can ship you as many lollipops at ten cents a piece as you want. What is your order and how will you pay?" Once the orders start coming in, a means of receiving and filling them must be in place. Now the entrepreneur really is in business!

THE BUSINESS INSURANCE

At some point during the founding of a business the entrepreneur will find it desirable to purchase insurance. This is for the same reason that individuals purchase insurance against fire, theft and liability. In some cases it may also be necessary to post bonds etc. All of these are usually the acts of someone who is employed. Questions prior to employment directed to an insurance agent should be treated similarly to exploratory discussions with bankers.

TYPES OF BUSINESS ORGANIZATIONS

There are basically three types of organizations for a business: sole proprietor, partnership, and corporation. The legal results of sole proprietorship and partnership are essentially the same. The difference is that the businessman shares his risk with one or more individuals in a partnership. The similarity in that the individual(s) are personally liable for the debts and actions of the business. The advantage of this is easier access to credit. The owner must repay even if the business fails. This, of course, is also the major drawback. The proprietor can lose everything if the business fails. For this reason most businesses, as soon as they can do so from a credit standpoint, will attempt to incorporate.

1. INTRODUCTION

   One of the most common separation issues a claims examiner is likely to face is the discharge for attendance related violations. These include absence from work, tardiness and failure to notify the employer when absent. This Review Letter is intended to guide the examiner in the resolution of these separation issues and to establish generally applicable principles through the use of Appeal Board and court decisions. Although not all-inclusive, it is a discussion of commonly encountered situations. As most absenteeism cases involve the discharge of an employee for violation of an attendance rule, the majority of the cases discussed are misconduct issues. Absence constituting job abandonment (voluntary separation) is treated separately in Section VIII.

2. GENERAL CONSIDERATIONS

   1. Precipitating Incident.

      1. In resolving separation issues, claims personnel must determine why the claimant lost employment. In most cases this means establishing the precipitating incident which is often described as "the straw that broke the camel’s back".

         The precipitating incident is the occurrence which was the immediate cause of the employer’s decision to terminate the employment relationship. In attempting to determine the precipitating incident in separation cases, it is essential at the outset of the claims process to establish, usually through the employer, two key factors:

         1. When the decision was made to discharge and

         2. What specific incident caused that decision to be made

         Once the reason for discharge has been narrowed down to the particular incident which directly prompted the employer to terminate the employee, and all the facts surrounding that incident have been obtained, the claims examiner must then consider whether or not the claimant’s actions rose to the level of misconduct.

      2. One frequently encountered situation is that the "last incident" prior to discharge is not always the precipitating incident. What need be established is which incident resulted in discharge:

         Claimant C.Y. had received oral and written warnings about punctuality. Nevertheless, she was late on several occasions prior to February 24. From February 24 through February 26, she was absent due to illness. She was discharged for tardiness the following week when the manager responsible for hiring and firing returned from vacation.

         The Appeal Board sustained a misconduct determination, finding "nothing in the record to indicate that claimant’s intervening illness was a factor in the decision to discharge her." (A.B. 334,794)

      3. A delay in discharge following the precipitating incident may occur for a number of reasons. For example, in government agencies or large corporations, grievance mechanisms may become operative. Other employers may not discharge an employee until a final approval has been made by a personnel department or company executive. Legitimate delays such as these do not mitigate the effect of the claimant’s action (i.e. lateness, absence, etc.) which prompted the employer’s decision to terminate. However, a considerable delay between the "last incident" and termination, which the employer cannot reasonably explain, may be an indication that the employer did not consider the offense so serious as to warrant immediate dismissal. This, in turn, will raise a question as to whether or not the precipitating incident rises to the level of misconduct. An inordinate delay between offense and discharge may also indicate that the true "last incident" has not been correctly identified and that some other or additional factor prompted the employer’s decision to discharge.

      4. On occasion the precipitating occurrence is not a single circumstance but an accumulation of incidents. This occurs when the employer, dissatisfied with an employee’s attendance and/or punctuality, places the employee on probation, warning the employee that the number of violations will be reviewed at the end of the period. Under these conditions, all attendance violations during the probationary period are to be considered in evaluating the precipitating "incident":

         Claimant A.B. worked as a probationary office aide for a municipality. Her probationary period had been extended three times because of her poor attendance. The claimant was discharged after being late thirteen times after being given a final warning.

         The Appeal Board found "The credible evidence establishes that the claimant was warned, in writing, on four different occasions about her poor attendance and that many of claimant’s latenesses thereafter were due to oversleeping. Accordingly, we conclude that claimant’s continued poor attendance was due to circumstances within her control and constituted misconduct in connection with her employment." (A.B. 330,990)

         When the local office is faced with a mixed bag of attendance violations during a probationary period, a high percentage should be for compelling reasons if the claimant is to be found eligible for benefits. Verification of reasons for all absences during a lengthy probation is desirable but may not be possible because of time restrictions. Nevertheless, verification of at least some of the absences should be attempted to get a feel for the claimant’s overall efforts toward protecting job status.

   2. Exceptions To The Precipitating Incident Requirement:
      1. By and large, identifying the reason for discharge is synonymous with identifying the precipitating incident. Nevertheless there are occasions when disqualifications are appropriate even in the absence of any identifiable final incident:

         Claimant, a bookkeeper, was frequently late to work and had been warned on several occasions. She reported late almost everyday in the last two weeks of employment.

         In the Appeal Board’s opinion, "That the employer may have delayed discharging claimant, in the hope that her punctuality would improve, does not constitute condonation of her failure to arrive at work on time. There were no compelling reasons for her latenesses." "(A.B. 320,654)

   3. Warnings

      A claimant discharged because of a poor attendance record, but unaware that such conduct would lead to dismissal, generally will not be subject to disqualification. Such awareness may be generated in several ways. Some employers may have formal attendance rules which are distributed to all employees. Others may rely on verbal warnings given to individual employees as needed. Still others may have a formal series of written warnings which culminate in a "final notice"." The form such warnings take is not critical so long as it can be established that the claimant should have been aware that (s)he was following a course of conduct which might lead to discharge. However, dates of such warnings may be relevant since a person would be expected to be more cautious about taking time off after being put on notice.

      Claimant A.M. was given a final warning on June 12 because of latenesses occurring earlier in the month. Although not late or absent thereafter, he was terminated on June 26 because, according to the employer, his attendance record was poor and had failed to improve.

      The Appeal Board overruled the local office determination stating: "...it is significant that after the last warning the claimant’s attendance record showed no absences or latenesses. Under these circumstances…claimant’s actions did not constitute misconduct..." (A.B. 330,384)

   4. Compelling v. Non-Compelling Reason

      The proverb "absence makes the heart grow fonder" does not pertain to the employment relationship. In fact, there, the saying "out of sight, out of mind" may be more appropriate. Thus, in resolving attendance related separation issues, the reasons for the employee’s absence/lateness must be examined to distinguish between those of a "compelling" or "non-compelling" nature. A compelling reason for the precipitating absence/lateness is, of course, non-disqualifying.

      But, what is compelling? For unemployment insurance purposes "compelling" encompasses more than an absolute need. It includes those reasons of such recognized importance that most individuals would act as the claimant did, even at the risk of losing employment. It is largely a test of the claimant’s reasonableness.

      An absence/lateness reason which is beyond the claimant’s control is clearly compelling: The claimant can do nothing to avoid the incident (e.g. serious accident). At the other end of the spectrum are the reasons which are clearly non-compelling (e.g. "Went to a ball game." "Didn’t feel like working."). In between are an infinite number of reasons which, somehow or other, must be assigned to one category (compelling) or the other (non-compelling).

      A truly compelling precipitating incident will negate the disqualifying effects of a prior poor attendance record. 1/ However, a claimant warned about an extremely poor attendance record may be given less credence with respect to the explanation offered for the last attendance violation than a claimant with a good attendance record. 2/ In one case the Appeal Board dismissed out of hand claimant’s allegation of illness as the cause of the last absence, noting twice in its opinion that claimant’s frequent absences on Saturdays. (A.B. 343,667).

   1/ See case discussed in Section IV A Traffic Delays

   2/ See Section VII Credibility for further discussion

3. ABSENCE
   1. Illness: Personal and Family
      1. If the claimant was discharged as a result of absence due to illness, the separation is generally non-disqualifying. Clearly, inability to work because of illness is beyond the claimant’s control:

         Claimant S.C., discharged for excessive absence, was absent January 18 and 21 because of a toothache on January 18, and pain from a tooth extraction performed on January 19.

         The Appeal Board held: "…claimant’s absences from work were caused by illness. This is not misconduct." (A.B. 334,158)

      2. When evaluating the eligibility of a claimant suffering from recurring or chronic illness during employment, another factor to be considered is where (s)he has taken reasonable steps to minimize the number of absences other than those compelled by the illness itself? 3/

         3/ Alcoholism, a form of chronic illness often encountered in an absence related discharge, is treated at length in Field Memorandum 6-82. Local offices should refer to that publication for a discussion of that problem.

         Claimant R.M. had a chronic back condition for which she was under the care of a doctor and a physiotherapist. She arranged for physiotherapy during non-working hours but her doctor had no evening or weekend hours. She was discharged for excessive absences caused by doctor appointments.

         The Appeal Board found there was no misconduct: "The employer does not dispute that claimant had a medical problem and that, on most occasions, claimant notified the supervisors, in advance, if she had an appointment which would conflict with her work schedule. Claimant attempted to schedule her appointments so as not to interfere with her work, but was unable to do so to the satisfaction of the employer… Accordingly, she was not subject to any disqualification." (A.B. 334,481)

         A contrast for the example above is that of the claimant who suffers from a chronic illness but fails to minimize absences:

         Claimant D.D. established that during his employment he suffered from an illness (not specified in the decision). However, he did not establish that the illness would render him unable to follow routine treatment recommendations. On October 25, he requested that the employer put him on leave without pay whenever he could not work a full day because of illness, in effect setting his own work hours. His request was denied. Thereupon, claimant was absent from work until November 5, at which time he was discharged.

         The Appellate Division upheld a disqualification, adopting the Board’s finding that, "While claimant appears to be suffering from an illness, he has made no reasonable effort to pursue a course of treatment. An employer is entitled to expect reasonable and prompt attendance from an employee… Claimant’s conduct, therefore, was contrary to the best interest of the employer. It did rise to the level of misconduct…". (Matter of DeCherro, 83 A.D. 2d 709)

         Absence due to chronic illness raises the issues of availability and capability. In such cases, claims examiners must also evaluate the claimant’s eligibility with respect to these issues.

      3. When family illness is the reason for absence, the compelling nature of the absence is determined not by the illness itself, but rather by the need for the claimant’s care or presence:

         Claimant T.E., whose request for Election Day off to coincide with her husband’s day off was denied, took the day off anyway. She later alleged that she had made plans to take her mother for treatment on that day.

         In rejecting the claimant’s contentions, the Appeal Board held, "…while she alleges that she had to help her mother, she testified that she does not drive and she only went because her husband, who does drive, was off." (A.B. 330,771)

      4. In general, a claimant absent due to illness is under no obligation to provide medical substantiation unless the employer has promulgated a specific rule to that regard. Thus, the claimant’s failure to see a doctor during a short absence, and subsequent inability to produce a doctor’s note, is not necessarily disqualifying. "An individual with a minor illness would not ordinarily be expected to see a physician." (A.B. 325,386)

         However, if a claimant knows the employer’s rules require a medical verification, compliance may be required.

         When hired, claimant D.B. signed and agreed to a list of employer rules and regulations, including the requirement that absences of three or more consecutive days due to illness of three or more consecutive days be verified with a medical statement. On August 26, claimant received a written warning about his attendance. From September 5 to September 12 he was absent, allegedly due to illness. His supervisor called claimant on September 8, leaving a reminder about the need for a medical note. When claimant reported to work on September 18 without a note he was discharged.

         The Appeal Board found claimant was correctly disqualified for misconduct. "He gave no valid reason for failing to submit medical proof of his alleged illness. Under the circumstances, claimant’s conduct was detrimental to the employer’s legitimate interest, and was in violation of the employer’s reasonable rule." (A.B. 339,644)

      5. Failure to comply with the employer’s reasonable requirement for medical documentation is not always disqualifying. Factors to consider are the nature of the illness, length of absence, prior attendance record, employee warnings and the employer’s need for verification.

         Claimant J.C. suffered a heart attack and was visited in the hospital by a representative of the employer. He signed medical releases to collect disability benefits from the employer’s insurance carrier. Subsequently, he was discharged for failing to provide medical verification of illness.

         The Appeal Board found no basis for misconduct: "The employer was aware of claimant’s condition when he was hospitalized and while he was receiving disability benefits. Claimant’s condition was verified by the insurance carrier as the agent of the employer. No medical reports from claimant’s doctors sent directly to the employer were needed to establish that claimant could not go back to work. The employer’s demands for such reports were unreasonable because it already had such adequate information through its agent, the insurance company." (A.B. 317,278)

      6. To determine whether a claimant is subject to disqualification for failing to fully comply with an employer’s request for medical documentation, the nature of the request and the degree of compliance must be examined.

         Claimant D.P. was hospitalized for an emotional illness. Upon return to work he presented a psychiatric clearance. At the employer’s insistence, claimant produced two more psychiatric opinions confirming the first, but refused to obtain a fourth opinion.

         Overruling a determination of voluntary separation, the Appeal Board found, "…claimant provided more than adequate substantiation that he was fit to return to his job duties."

         A different conclusion was reached in the case below:

         Claimant C.V., unhappy with her supervisor, took an unauthorized leave of absence. She supplied the employer with medical documentation from a pediatrician indicating that she was suffering from anxiety reaction, secondary to emotional stress at place of employment." Rather than submit to a psychiatric evaluation scheduled and paid for by the employer, claimant quit.

         After determining that she had no compelling reason for refusing to submit to the psychiatric examination, the Appeal Board sustained a determination of voluntary leaving without good cause and noted: "Furthermore, the medical evidence submitted by claimant concerning the necessity for her to leave her employment is not convincing. The diagnosis that claimant was suffering from a psychological disorder was not made by a psychiatrist or psychologist, but by a pediatrician. This doctor’s opinion…was clearly based upon claimant’s subjective and unsubstantiated reports about the conditions of her employment." (A.B. 336,472)

   2. Incarceration:
      1. When a claimant who commits a crime outside the course of employment is incarcerated, absence from work after warning is disqualifying. (A.B. 199,344; A-750-1782) Although it may appear that absence in such cases is beyond the claimant’s control (one does not usually enter jail voluntarily), the Appeal Board has reasoned differently:

         Claimant T.E. was on warning for excessive absenteeism. On December 7, his last day of work, he was arrested for firing a gun through the wall of a bar. He was incarcerated through January 2 because he could not raise bail bond, and thereafter pled guilty to reckless endangerment. When he returned to work on January 3, his employer had already discharged him for his absence.

         The Appeal Board found that "The claimant’s last absence resulted from his own delinquency and, therefore, cannot be considered beyond his control under the Law. The claimant’s non-compliance with the employer’s work schedule constituted misconduct." (A.B. 312,143A)

      2. A conviction for any crime, no matter how minor, is conclusive evidence that the claimant committed the act resulting in incarceration. Similarly, if the claimant pled guilty, even to a lesser charge, "the claimant is subject to the criminal penalties and to whatever effect that may have on his employment: (A.B. 323,831). However, a claimant acquitted in a criminal case may be subject to a misconduct disqualification nevertheless. The standards for determining guilt in a criminal case are substantially greater than those required for unemployment insurance determinations of misconduct (Matter of Colello, No. 76-443 App. Div., 3^rd Dept., Dec 2, 1976, unreported).

         If no judgment has been rendered by the time an initial determination is to be made, the claims examiner should question the claimant regarding the extent of his/her participation, if any, in the acts alleged. This is necessary even if the claimant pled not guilty since that plea may have been entered for reasons not related to the claimant’s guilt or innocence. If the claimant admits the act, the absence is volitional and may be disqualifying. If the claimant pled not guilty (verify with the appropriate authorities) and signs a statement denying any involvement in the crime, and there is no convincing independent evidence of guilt available, there should be no disqualification. The criminal case should be followed up for disposition, and a redetermination made if warranted.

      3. Prior warnings about attendance are generally necessary for a short absence to constitute misconduct. In the case of an incarcerated claimant absent from work for half a day, misconduct was upheld only upon a finding that "He had been warned that he would lose his job if his conduct off the job prevented him from reporting to work on time." (A.B. 221,215) However, incarceration for a lengthy or indefinite period may not require a warning about attendance:

         Claimant D.P., sentenced to jail for up to a year, asked his employer to hold his job open for him. The employer refused. Upon release seven months later, claimant reapplied for his job but was not rehired.

         Finding the claimant subject to disqualification for misconduct, the Appeal Board reasoned: "…the claimant was discharged, after beginning his sentence, since he could not report to work while imprisoned. The jail sentence made it ‘impossible,’ not merely impractical or inconvenient, for the employer to continue the employment relationship." (A.B. 323,831)

   3. Loss of Transportation

      Another common reason for employee absence is loss of transportation to work.

      1. Where the claimant has limited means of getting to work, and that means becomes unavailable for reasons beyond the claimant’s control, discharge for absence from work is not disqualifying:

         Claimant C.O., from a rural area, was absent because his truck broke down. He had no alternative means of going to work.

         In overruling a disqualification for misconduct, the Appeal Board stated:

         "The discharge was precipitated by claimant’s last absence, which was caused by the break down of his own vehicle, his only means of transportation… Claimant’s last absence was the result of circumstances beyond his control." (A.B. 320,419)

      2. Where reasonable alternative means of transportation are available, the claimant’s failure to use them is disqualifying. Absence in such a case is neither beyond the claimant’s control nor reasonable:

         Claimant L.G., previously warned about absence, did not report to work on June 25 and 26 because of car trouble. Alternative means of transportation were available.

         In affirming a misconduct disqualification, the Appeal Board held, "Although he had a series of problems with his car, the claimant continued to rely on his automobile as the sole means of transportation to work. He made no attempts to obtain alternate transportation or to use public transportation in order to get to work. Accordingly, we conclude the claimant's last absence from work was for personal and non-compelling reasons..." (A.B. 314,071)

      3. Sudden, unexpected loss of usual transportation, even if alternative means are available, will likely result in the claimant being late for work. Because, from the employer’s viewpoint, lateness is usually preferable to absence, a reasonable employee will make an effort to get to work:

         Claimant had only two means of getting to work, riding with an undependable co-worker or riding a public bus which would get him to work late. The claimant had been warned about excessive absenteeism but not about tardiness because the employer was aware of his transportation problems. On the morning of October 26, claimant’s co-worker did not show up. Rather than take public transportation, claimant called the employer to say his ride did not appear and he would be absent. Claimant did not feel like working that day.

         The Appeal Board found: "The claimant could have taken the public bus and arrived to work late, which the employer would not have objected to, but chose instead not to go in at all. His unnecessary absence on October 26, 1981 after two written warnings was misconduct…" (A.B. 330,539)

4. LATENESS/EARLY DEPARTURE

   As with absence, a lateness precipitating a dismissal may also be for a compelling reason and non-disqualifying. Some of the more common reasons for tardiness are discussed below.

   1. Transit Delay
      1. Tardiness caused solely by an unforeseeable delay in public transportation is not disqualifying:

         Claimant G.D. was put on final warning for lateness, usually the result of transit delays. Thereafter, he began leaving home earlier. When he was again late January 19, 20 and 22 due to transit delays, he was discharged.

         The Appeal Board found no misconduct, noting "…his last three latenesses which precipitated his discharge were due to circumstances beyond his control, that is, transit delays. Claimant’s position that there were extensive transit delays on the last three days was substantiated by verification from the New York Transit Authority." (A.B. 332,783)

      2. The case above suggests that two factors must be present for the claimant’s tardiness to be non-disqualifying:
         1. The transit delay should be verified. Most public transportation systems will provide, upon telephone inquiry, the length of any delay and the time at which it occurred.

         2. The transit delay must have been unforeseeable. An employee on warning for lateness should anticipate some delays, but need not anticipate delays on a truly extended duration. Compare the following case with the case above:

         Claimant C.D., on warning for excessive lateness, was late for work five times in his last three weeks of work. He attributed his lateness to train delays.

         Finding the claimant correctly disqualified for misconduct, the Appeal Board stated, "…claimant made no effort to overcome the foreseeable subway delays that he encountered, by leaving for work earlier. The claimant’s continued and excessive lateness which was within his power to avoid, violated an implied condition of employment and thus constituted misconduct in connection therewith." (A.B. 311,838)

   2. Traffic Delay

      Like the public transit commuter, the claimant using private transportation must leave for work early enough to compensate for normal traffic delays. Similarly, delay that is unforeseeable and unexpected will not be disqualifying. In a case of a final lateness caused by flooding on the claimant’s usual route to work, the Appeal Board found there was no misconduct, despite claimant’s history of tardiness and a final warning. (A.B. 341,969)

   3. Car Trouble

      Prompt attendance being a requirement of the job, the claimant who uses a privately owned vehicle to go to work must keep it in good working order to comply with the requirement (cf. Matter of Kudysch, 72 A.D. 2d 901; A-750-1894).

      The majority of cases with which the claims examiner deals concern unexpected and unforeseeable car trouble, such as a flat tire or failure to start on an extremely cold morning. Such circumstances are beyond the claimant’s control, and consequently, non-disqualifying. Whenever possible, delays caused by mechanical problems should be substantiated through towing bills, mechanic's bills, receipts for parts, etc. As with public transportation or traffic related delays, habitual lateness due to car trouble can result in disqualification:

      Claimant G.H. was discharged for being late 42 times during the 69 days of his employment. The automobile which he used to get to work was in disrepair and frequently broke down.

      The Appeal Board found that "Although the plant manager was aware of claimant’s problems with his vehicle, the credible evidence establishes that claimant was warned repeatedly that he must report to work on time. It was claimant’s obligation to either repair his car permanently or to find other means of transportation…" (A.B. 302,427)

   4. Oversleeping

      When a claimant is on warning for attendance violations, lateness due to oversleeping is usually disqualifying. However, oversleeping due to the use of a prescription medicine which, unknown to the claimant, causes extreme drowsiness is non-disqualifying. Oversleeping caused by consumption of a non-prescription drug or alcohol is generally disqualifying unless the claimant is an addict or alcoholic. 4/

      4/See Field Memorandum 6-82.

   5. Early Departure
      1. The rules with respect to a claimant who leaves work early are substantially the same as for any other absence from work, with one significant exception: Since a supervisor is likely to be nearby, the claimant should seek permission to leave, or at least give notice of leaving to the employer:

         Claimant J.V. was on notice for poor attendance. His work hours were 8:30 a.m. to 4:30 p.m. he failed to return to work after his break. He informed no one of his leaving nor did he obtain permission to leave. Claimant left because drinking coffee caused him heartburn and he went to a drug store to purchase an antacid.

         The Appeal Board upheld the disqualification finding, "The discomfort he experienced was minor in nature and was not so severe as to relieve him of the responsibility of obtaining authorization to leave work early." (A.B. 336,294)

      2. Even if the claimant has a compelling reason to leave, such as personal illness or family emergency, the claimant must still give notice of his departure. Any means reasonably designed to give the employer notice will suffice:

         Claimant C.B. became ill shortly after reporting to work. Procedure requires that he notify his immediate supervisor and the personnel office when leaving early. Not being able to locate his supervisor, he informed two co-workers that he was leaving. He called personnel as soon as he got home.

         The Appeal Board overruled the employer’s objection to claimant’s eligibility stating, "We conclude that, under the circumstances, claimant substantially complied with the procedure set forth by the employer concerning leaving early." (A.B. 314,939)

      3. If the claimant’s reason for leaving early is purely personal, mere notice to the employer will not suffice where permission to leave is required but has been denied:

         Claimant, a stationary engineer, was required by the employer to take his meal breaks in the building where he worked because it was necessary to have an engineer on the premises at all times. He was paid time and a half for remaining at his post during his meal period. Despite this agreement, on September 13, claimant left the building during his meal break to obtain food. The employer warned the claimant he was violating the rule. October 27, claimant again left the premises to take his meal break and was discharged as a result.

         In reinstating a determination of misconduct, the Appellate Division stated, "Responsible for monitoring the building’s fire detection equipment, it was entirely reasonable for the employer to insist upon his availability should an emergency arise." (Matter of Cruz, 79 A.D. 2d 1081, aff’d 55 N.Y. 2d 918)

5. FAILURE TO CALL/FALSE REASON
   1. Failure to Call
      1. In determining the precipitating incident, care must be exercised in distinguishing whether a claimant has been discharged for an absence itself or for failure to properly notify the employer of the absence. A claimant discharged for failure to properly notify the employer of an absence is subject to disqualification despite the fact that the absence itself was for a compelling reason.

         Claimant W.G. informed her supervisor that she would be hospitalized on Monday and Tuesday, April 12 and 13, and that she would return on Wednesday, April 14. However, she did not return to work on either April 14, 15 or 16 because she felt discomfort from the medical treatment. She did not call or notify her employer on any of the latter three days, although she knew she was required to do so.

         The Appeal Board sustained a disqualification for misconduct. "While she had a compelling reason to be absent on the 14^th, 15^th and 16^th, she had no compelling reason for her failure to contact her supervisor… Her failure to contact the supervisor constitutes misconduct…" (A.B. 337,612)

         In a similar case the Appeal Board reiterated its longstanding position that when a claimant has been warned about absenteeism it is not necessary that he "…be warned that failure to call in, when absent, can lead to discharge. An employee has a duty to inform his employer in a timely manner of the reason for an absence (A.B. 193,120). He is responsible to get this information to the employer." (A.B. 333,783)

         Thus a claimant discharged for failing to notify the employer of an absence must demonstrate compelling reasons for the absence itself and also for the failure to notify the employer of an absence must demonstrate compelling reasons for the absence itself and also for the failure to call.

      2. An employer may require its employees to call at a specific time (e.g., an hour before the start of a shift) in order to secure a replacement or to know what staff is available that day. In such cases, the claimant should make reasonable attempts to comply:

         Claimant, a porter, was aware of the employer’s requirement that he call in any absence at least two hours before his 6:00 p.m. shift. On September 24, claimant was ill and at a doctor’s office in the afternoon. He did not inform the employer of his absence until after 5:00 p.m. that day. Ill again the next day he did not call until after 5:00 p.m.

         The Appeal Board sustained a determination of misconduct: "…claimant was discharged because he failed to adhere to the employer’s call-in rule. Significantly…he had been specifically warned about the call-in rule. The fact that the claimant was ill on the days in question does not excuse his failure to make sure that the employer was properly informed of his absences." (A.B. 341,691)

      3. It should be recognized that a compelling absence may occur so suddenly that the claimant is unable to make a timely call to the employer:

         Prior warnings had been given to claimant T.S. about his failure to call in absences at least one hour before the start of his 7:00 a.m. shift. On August 21, at 6:45 a.m., claimant twisted his ankle on the way to work. He was not able to get to a phone until 7:20 a.m., at which time he called the employer. Thereupon he went to a hospital for treatment of a sprained leg and torn ligaments. He was discharged for failing to properly report his intended absence.

         The Appeal Board found no misconduct on claimant’s part. "The nature and extent of his injury made it impossible for claimant to communicate with the employer before 7:20 a.m. It is particularly significant that the injury itself occurred 45 minutes after the 6:00 a.m. deadline for reporting intended absences. Under the circumstances, we must conclude that claimant’s failure to timely notify the employer of his absence was due solely to events beyond his control." (A.B. 282,707)

      4. The claimant who is unable to meet the call-in deadline is required to notify the employer as soon thereafter as is reasonably possible:

         Claimant H.H. worked a shift beginning at 4:00 p.m. She was aware of the employer’s requirement that she call in absences by 11:00 a.m. On November 28, she became ill at about noon and took some medication which could cause drowsiness. She asked a friend to call her at 2 p.m. The friend neglected to call, and claimant, who had fallen asleep, did not wake until 4:30 p.m. She called her employer at that time.

         The Appeal Board sustained a disqualification for misconduct, finding claimant "… did not become ill until after 11:00 a.m. on the day in question and thus could not comply with the call-in notice required in the case of usual absences. However, knowing she was still on probation because of her attendance record, claimant did not act reasonably to protect her job. Her choice not to call the employer at noon and to rely on her girlfriend to awaken her if she fell asleep after taking pain-killing medication, was not the action of a prudent and reasonable person, in these circumstances." (A.B. 264,151)

      5. Sometimes the claimant who fails to notify the employer of an absence will receive a call asking if (s)he intends to report to work, and if not, why not? The employer’s call to the claimant does not remedy the claimant’s failure to provide notification. (A.B. 334,124)

      6. A common explanation for failure to notify the employer of an absence is the claimant’s allegation that (s)he asked a relative or friend to call and that person neglected to do so. This will not excuse claimant’s failure:

         Claimant S.L. was absent from work for ten days in order to visit his seriously ill father out of state. He asked his girlfriend to call his employer and explain his absence. She forgot to do so. He was discharged because of his absence without notifying the employer.

         The Appeal Board disagreed with "the judge’s conclusion that the claimant’s failure to notify his employer should be excused because he had made a good faith effort to contact his employer by asking a friend to do so. The failure of his chosen agent to notify the employer is attributable to him and it constitutes misconduct on his part…". (A.B. 323,434; A-750-1910)

         The nature of the relationship between the claimant and the chosen agent does not in any way alter the result. Misconduct was upheld in various cases involving a claimant’s parent, grandparent, child, spouse, uncle, aunt, neighbor and attorney.

      7. Frequently cases are seen in which a claimant overstays a vacation or leave of absence. Regardless of the reason for the claimant’s extension of time, the employer may rightfully expect to hear from the claimant at least as early as the date the claimant is due back to work, if not sooner.

         Claimant M.W., who was due back from vacation on August 31, did not return until September 8 because his child became ill. He did not contact the employer during the period although he was in contact with his wife in New York and was aware of the requirement to contact the employer during absence.

         The Appeal Board noted that claimant’s supervisor testified "neither claimant nor anyone on his behalf contacted him prior to September 8 to report claimant’s absence… Accordingly, we find that claimant lost his employment through misconduct….". (A.B. 331,006)

   2. False Reason For Absence

      Providing the employer with a false reason for absence is misconduct. As in failure to call, it is separate offense from the absence. The obligation to inform the employer of the true reason for absence is so vital to the relationship of trust between the employer and employee that a misconduct disqualification is warranted even if the claimant had no prior attendance problems:

      Claimant S.R. called in sick on two successive workdays. She was not in fact, ill; rather, she accompanied a friend to the friend’s pre-arranged hospitalization in another city.

      The Appeal Board found, "Her absence was for a personal and non-compelling reason. Furthermore, she gave the employer false reason for her absences, intentionally to deceive him. It is immaterial that previously the claimant was never absent during her employment. Her absences, for personal, non-compelling reasons, compounded by deliberate falsehoods concerning the reasons therefor are misconduct." (A.B. 327,176)

6. EMPLOYER RULES AND REGULATIONS
   1. Reasonableness of Rules
      1. An employer has a right to require on time and regular attendance from its employees, and, to this end, may make rules as necessary. If the rules are reasonable, compliance is expected.

         Rules limiting the number of absences or latenesses allowed are normally reasonable. Also reasonable are rules requiring the claimant to call in an absence at a specified time and to speak to a specified person or office.

      2. Unreasonable employer rules are occasionally encountered and are usually easy to detect. An example is the case in which the employer required a claimant to obtain a fourth medical opinion before returning to work. 5/ In another case the Board found an employer’s requirement that the claimant call in an absence which had previously been approved to be unreasonable.
         
         

         5/ Appeal Board case 340,860 discussed on Page 9

      3. Employers sometimes establish special rules for specific employees with poor attendance records:

         Claimant F.B. was required to verify all of his absences because he had apparently given a false reason for a four-day absence. Subsequently, from July 26 to August 2, he was absent, allegedly due to illness, but did not seek medical attention. He was discharged for failure to provide medical documentation.

         The Appeal Board sustained a disqualification for misconduct. It found the employer’s requirement "was reasonable, in view of claimant’s prior actions. Claimant was aware that such failure would result in his termination, yet he did not obtain medical documentation of his illness." (A.B. 339,838)

      4. Prior penalties or disciplinary suspensions are sufficient notice of what is expected of the claimant. Thus, a claimant who overstayed his lunch break by an hour was held to be on warning for this sort of conduct (and consequently, subject to disqualification) when three years earlier he received a 20-day suspension from work for similar conduct. (A.B. 335,040)

   2. Attempts to Comply
      1. After establishing that an employer’s rule is reasonable, the claims examiner must ascertain if the claimant attempted to comply with the rule, and how reasonable that attempt was:
         
         
         1. Claimant A.D., on warning for violation of the employer’s call-in rule, was absent on June 21 because of a flat tire. He was discharged for not calling in until five hours after his shift started.

            The Appeal Board concluded that, "He did not act as a reasonably prudent person should to protect his employment… Even if, as claimant testified, the employer’s line was busy on three occasions…claimant should have continued to call. We conclude that a claimant lost his employment through misconduct…". (A.B. 341,263)

         2. Claimant J.H. was mugged on August 27 and suffered injuries to his arm, legs, and eyes. He received emergency treatment in a hospital. On August 28, his daughter met with the plant manager, informed him claimant would be out a few days, and gave him a copy of the hospital report. Thereafter, claimant was terminated, pursuant to a union contract provision, for absence of an additional five days without calling in. Claimant had no phone, and because of leg injuries was unable to get to a phone.

            In this case the Appeal Board found, "claimant made certain that his employer was informed of the seriousness of his condition, and that he would be out for several days. While perhaps he should have made a further attempt to contact the employer during the period he was absent, we note that he has no telephone and was suffering from a leg injury. Under the circumstances, his failure to attempt to keep the employer further apprised of his situation…cannot be said to be misconduct…" (A.B. 328,917)

      2. If a claimant intends to be absent or late at a future date, (s)he has an obligation to inform the employer at the earliest moment and to seek permission for the absence:

         Claimant L.C. was aware of his employer’s rule requiring advance permission for absence. On October 28, he had a dental appointment and reported to work late. He notified his supervisor of the appointment by leaving a note on the supervisor’s desk the day before, after the supervisor had left for the day.

         The Appeal Board noted, "If claimant could leave a note on the subject, then he could have requested permission through the proper channels. It was a violation of the employer’s rule, of which he was aware, and constituted misconduct…" (A.B. 330,535)

   3. Isolated Incident
      1. In the law of torts (civil wrongs) there is a well-known adage that "every dog is entitled to its first bite." This means that (in most states, not New York) a dog owner is not liable to the person injured by the dog unless the dog has bitten someone previously, thereby putting the owner on notice as to the viciousness of the animal.

         Unemployment insurance case law has an analogous doctrine in the single, isolated incident rule: A claimant discharged for a single, isolated violation of a known employer attendance requirement may not be guilty of misconduct:

         Claimant, a masseuse, was employed by a concessionaire at a hotel. She was absent one day when she was expected to work and was discharged the following day because of her unexcused absence.

         The Appellate Division held that, "In the present case the finding of misconduct was based on a single unexcused absence. There was no evidence presented that claimant was absent on other days when she was required to work, nor is there any evidence of a warning being given claimant concerning absences. No policy or rule of the employer requiring notification in advance of absence was adduced. In our opinion, this one isolated instance of an unexcused absence does not constitute misconduct…". (Matter of Ramsey, 63 A.D.2d 1061)

         Also found eligible for benefits were claimants who lost employment as a result of a single, isolated incident of absence because…the claimant forgot his work schedule (A.B. 315,360), was late due to oversleeping (A.B. 315,113) and left a work station ten minutes early (A.B. 321,992)

         It should be noted, though, that any prior warnings about attendance, even if of a general nature, remove the claimant from the benefit of the isolated incident rule.

      2. As one might expect, there is an exception to the rule, in which the claimant is subject to disqualification. A claimant who is solely or significantly responsible for a particular department or whose attendance is essential to the employer’s operation may be subject to disqualification for an isolated instance of absence and failure to call:

         Claimant M.D., employed by a supermarket, was one of only two appetizing department clerks. He arranged to work the morning shift on Sunday, July 12, but did not appear nor did he call.

         Distinguishing Matter of Ramsey (Page 24), the Appeal Board stated, "The claimant in Ramsey was a masseuse who worked in a large resort hotel and obviously had must less responsibility than claimant had in the present case. The claimant herein was one of only two appetizing department clerks. His failure to report to work on the date in question, of necessity, could result, and did result, in the only other clerk having to work both shifts". (A.B. 327,326)

7. CREDIBILITY

   As Oscar Wilde once observed, "Truth is rarely pure and never simple." Therefore, it is not surprising that one of the more difficult problems facing a claims examiner in resolving separation issues is testing the credibility of the parties. In the area of attendance related discharges, evaluating credibility is more difficult because often only the claimant knows the reason for the absence or lateness. This section explores means of evaluating credibility.

   1. Verification
      1. Proper interviewing technique requires that the credibility of any individual with exclusive knowledge of necessary facts be tested. The best means of certifying a statement is through independent sources outside the control of either the claimant or the employer. For example, the Weather Bureau would be able to provide information tending to confirm a claimant’s statement that an absence was caused by heavy snow. Other forms of independent verification frequently available and which the claims examiner should utilize include traffic and transit reports, police reports, medical documentation, and repair bills. The following case illustrates the importance of independent verification in evaluating the credibility of claimant’s explanation for the last absence/lateness.

         Claimant W.J. had been absent 27 times between January 1, 1981 and September 18, 1981 when he was discharged. He had been on written warning for excessive absenteeism. He insisted that his last absence was compelled by his girlfriend’s hospitalization. He was discharged at 10:56 a.m. on September 18.

         The Appellate Division sustained the disqualification for misconduct, noting, "The record is clear that claimant did not take his girlfriend to the hospital on September 17, 1981 but at 3:50 p.m. on September 18, 1981, some five hours after he had been notified at 10:56 a.m. that his employment had been terminated." (Matter of Johnson, 89 A.D. 2d 1050)

      2. On occasion, the employer may have evidence tending to support or refute the claimant’s statement. A typical example is the employer’s possession of a signed acknowledgement of warning, refuting the claimant’s contention that (s)he was never warned. Note also the following example:

         Claimant C.B. was absent 13 times in four months and had been warned. He was discharged. Claimant contended he was totally dependent upon a particular co-worker to get to work, and that his absences were caused by the co-worker’s absences.

         Unpersuaded, the Appeal Board sustained a disqualification for misconduct. "We reject such contention in light of the employer’s attendance records showing the claimant reported to work on many occasions that the co-worker did not report to work." (A.B. 337,675)

   2. Inconsistent Statements
      1. Occasionally a statement will be self-contradictory or otherwise incredible. The Appeal Board recently rejected a claimant’s contention "that she failed to contact the employer on each day of her absence because she was too emotionally distressed, in view of her testimony that she would have complied with the rule if she had known she would be discharged for its violation." (A.B. 334,024)

         At times, it is the employer’s statement that proves to be incredible. For example, the Appeal Board rejected an employer’s allegation of misconduct and found a claimant eligible for benefits, in part because despite the employer’s contention of discharge for latenesses, the claimant had been told he would not be dismissed if he agreed to drop an earlier union grievance against the employer. (A.B. 341,468)

      2. There is a rule of evidence that statements made by a party at a time (s)he has no reason to believe they will be used adversely may be given more weight than subsequent inconsistent statements or testimony, even if given under oath.

         This principle applies to unemployment insurance cases. For example, a claimant’s statement to the local office that his last lateness was caused by a family medical emergency might be viewed with skepticism if he had told the employer at the time of his dismissal that he had been late because he overslept. Similarly, at the hearing or appeal level, statements made by the claimant or employer which conflict with those given to the local office before their effect was known may be found less credible (Cf. Matter of Jensen, 49 A.D. 2d 794). For this reason, it is of the utmost importance for the claims examiner to obtain precise, detailed and complete statements from all parties.

   3. Patterns of Absence
      1. When a claimant alleges an absence was due to illness or other compelling reason but cannot provide documentation, the claims examiner should look to the claimant’s attendance history to see if there is a pattern of absence: for example, absence on Fridays or Mondays, the day following pay day, or as leave time accumulates. If a precipitating absence falls within a pattern, it should be scrutinized carefully. While the claims examiner should not automatically exclude the possibility that the claimant did have a compelling reason for the last absence, a precipitating absence falling within a pattern of absences is strongly suggestive of non-compelling, and thus disqualifying, reason for absence. The following cases are illustrative:
         
         
         1. Claimant, a security guard, worked for a hospital. She had been discharged for absenteeism, but rehired with a warning that her attendance would be closely monitored. Thereafter, claimant was absent three times, all on Sundays. She requested Monday, February 14, 1983 as a day off, then failed to report to work on Sunday, February 13.

            The Appeal Board rejected the administrative law judge’s conclusion that claimant’s last absence was an "honest mistake", finding "…she was fully aware that she was required to work on Sunday, February 13, 1983. Her failure to report to work on Sunday, February 13, 1983 was contrary to the employer’s interests… Therefore, we find that claimant’s employment came to an end due to misconduct in connection therewith." (A.B. 346,644)

         2. Claimant H.D., on warning for poor attendance, was absent three consecutive Mondays prior to his discharge. On the last Monday, the absence precipitating his discharge, he was required to be in Family Court to contest a support action. He called his employer in the morning to notify it that he would be late and again, later on, that he would not be in at all. He was in court all day.

            The Appeal Board found that, "Though his attendance record may have been poor, his last absence was for a compelling reason. Accordingly, claimant did not lose his employment through misconduct…". (A.B. 331,708)

8. ABANDONMENT OF JOB: VOLUNTARY SEPARATION
   1. A bothersome side issue often found in absence-related separation is the question of which disqualification, voluntary quit or misconduct, is appropriate when a claimant becomes separated from employment because of a substantial absence without proper notification to the employer. Did the claimant quit, or was the claimant discharged as a result of the absence? Any difficulty in resolving this problem is substantially diminished by the application of a simple rule: Impose both disqualifications, misconduct and voluntary separation, one as an alternative to the other.

      Because neither an administrative law judge nor the Appeal Board may issue initial determinations, both determinations must be issued to insure a decision on misconduct and voluntary leaving. If only one determination is issued and it proves incorrect on appeal, the administrative law judge or appeal Board must overrule it and cannot issue the alternative in its place (Matter of Pepitone, 78 A.D. 2d 563).

   2. In deciding which of the two determinations is primary and which is alternative, the claims examiner should look to the claimant's intent. If the claimant made an attempt to keep the job during an absence, or attempted to return to work following an absence, there was no intent to abandon the job and the primary determination is misconduct.

      On the other hand, if the claimant reported to the employer for the sole purpose of picking up his paycheck, the intent was to leave and the primary issue is voluntary separation.

      Claimant R.P. was given a final warning not to bother reporting to work anymore if he were absent again. On June 8, he was absent because of car trouble. He neither called the employer nor attempted to get to work by other means of transportation. He reported to the employer on June 10 for the sole purpose of picking up his last paycheck.

      The Appeal Board sustained a disqualification for voluntary separation finding "He made no attempt to get to work or to protect his employment on the occasion of his last absence, and only returned to the employer’s establishment on June 10, 1982 to collect his pay check… In view of the aforesaid, it is unnecessary to rule on the alternate initial determination of misconduct." (A.B. 338,089)

      On the contrary, if the claimant, intending to work, reported to the employer’s premises after an unauthorized absence, was handed his paycheck and discharged, the primary determination is misconduct:

      Claimant S.K. was absent from January 8 to January 11, because he was ill. Although he was required to call in his absence, he deemed it unnecessary. He reported to work on January 12, at which time was given his final paycheck and discharged.

      The Appeal Board overruled a disqualification for voluntary separation but sustained the alternative determination of misconduct. "Claimant did not intend to abandon his employment or resign and was ready to work on January 12, 1982. We find the employer’s actions on January 12 to be a discharge. Accordingly, the claimant’s separation from employment was involuntary and there is no basis for the initial determination disqualifying the claimant from receiving benefits because he voluntarily left his employment without good cause… Under the circumstances, we find that the claimant’s conduct constitutes misconduct…". (A.B.334,338)

Difficulty in the resolution of attendance related separation issues will be substantially reduced if certain fundamental principles are borne in mind:

1. It is always necessary to identify the precipitating incident leading to discharge. Generally, this will be the final attendance related violation prior to the employer’s decision to discharge the claimant. However, in exceptional cases it may be an accumulation of incidents, especially if occurring during a predesignated probation period.
   
   
2. Absence or tardiness after warning is misconduct, unless the claimant had a compelling reason to be absent or late.
   
   
3. A discharge for failing to comply with an employer’s reasonable rule is disqualifying, unless the claimant demonstrates a compelling reason for the failure.
   
   
4. Whenever possible, claimant and employer allegations should be verified with records (e.g. mechanic’s bill, copy of warning) or through disinterested sources (e.g. transit authority). However, a claimant is not expected to produce a doctor’s note for a minor illness or short duration unless (s)he has been specifically warned by the employer that one is required.
   
   
5. If the facts of the case do not clearly establish whether the claimant abandoned employment or was discharged for misconduct, alternative determinations of voluntary separation and misconduct must be issued.