A-750-1801
Index 1110-7
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

January 29, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Absence and lateness

Appeal Board Decision 211,294

FALSE REASON FOR ABSENCE

Falsely informing employer that absence was due to illness, is misconduct.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective April 4, 1975 because she lost her employment through misconduct in connection therewith, is overruled.

Appealed by: Industrial Commissioner and employer.

Findings of fact: Claimant was employed as a short order cook, six days a week. Her hours of employment were from 11:30 a.m. to 2:30 p.m. On the morning of April 2, 1975 claimant called her employer and reported that she was too ill to work and arranged to have her daughter fill in as her replacement. When her husband drove her daughter to work she accompanied him. Then they both went to play bingo. On April 5, 1975 she reported for work and when questioned by her employer, admitted that she had not been ill on April 2 but had gone to play bingo instead. She was then discharged.

Opinion: The credible evidence establishes that claimant called her employer to report that she could not work because she was ill and then went to play bingo. Her false report as to the reason for her absence and her failure to report for work constitute misconduct in connection with her employment. It is significant that claimant presented no medical evidence in substantiation of her contention that she was ill. Accordingly, we conclude that claimant lost her employment through misconduct in connection with her employment.

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

The decision of the referee is reversed. (December 2, 1975)




A-750-1803
Index 1125-4
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 8, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Alcohol

APPELLATE DIVISION DECISION

Matter of Andres Llano

ALCOHOL ON BREATH

Reporting to work with odor of alcohol on breath despite warning against such conduct, is not misconduct, unless claimant has contact with customers or the condition makes the working environment unpleasant for co-employees, or there is other evidence of an adverse effect on the employer.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 3, 1975 and resettled June 16, 1975, disqualifying claimant from benefits because he lost his employment through misconduct, and imposing a forfeiture because of a willful misstatement to obtain benefits.

Claimant, a machine operator, was discharged for reporting to work with the odor of alcohol on his breath after having previously been warned not to do so. In a prior appeal (Matter of Llano [Levine], 46 A D 2d 841), we remitted this case to the appeal board for a determination of whether claimant's conduct constituted misconduct in the light of Matter of James (Levine), (34 N Y 2d 491). On the present record, there is no evidence that claimant was guilty of drinking on the job. In fact, the board has specifically found that claimant's consumption of alcohol occurred on the previous evening. There is no evidence that claimant was intoxicated, or in any way impaired so as to create a dangerous situation or affect his ability to function. In Matter of James (Levine), supra, by contrast, the claimant reported to work "under the influence of alcohol" ('34 N Y 2d at 497). Moreover, the claimant in James was in a position where she had contact with customers. Here, there is no testimony that claimant had contact with customers or made the working environment unpleasant for co-employees, and the board has not found that the mere odor on claimant's breath adversely affected the employer's interests (see Matter of Paulsen [Catherwood], 27 A D 2d 493). In fact, claimant has testified without contradiction that he was not discharged until the end of the work day, which suggests that claimant's "condition" was not adverse to his employer's interests.

It may well be said that claimant's personal traits provided a basis for discharge, but unless those traits rise to the level of misconduct, they are not a proper basis for the denial of unemployment Insurance benefits (see Matter of Raven [Levine], 40 A D 2d 128, 129).

Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. (January 15,1976)

COMMENTS

1. In this decision the Court noted that claimant's consumption of alcohol occurred on the previous evening, and there was no evidence "that claimant was intoxicated or in any way impaired so as to create a dangerous situation or, affect his ability to function."

2. Matter of James, cited in the instant decision, is at A-750-1775.




A-750-1804
Index 1610-3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 11, 1976

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Voluntary or involuntary

APPELLATE DIVISION DECISION

Matter of Richard F. Keenan

COUNTY EMPLOYEE: FAILURE TO MAINTAIN RESIDENCE

Loss of employment by a county employee because of failure to maintain residence in that county as required by law, is a voluntary leaving of employment without good cause.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 23, 1974, which disqualified claimant from, receiving benefits effective March 22, 1974 because he voluntarily left his employment without good cause by provoking his discharge.

Claimant, a Nassau County Probation Officer and a Suffolk County resident, was given a waiver of the residency requirements of section 13-1.0 of the Nassau County Administrative Code upon the condition that he "actively seek to acquire a residence in Nassau County". After about nine months during which the evidence discloses little effort on the part of the claimant to relocate, he was given two weeks to comply with the residency requirements and, when he failed to do so, he was terminated as of March 22, 1974.

The board found that claimant did not actively seek a residence in Nassau County and that the waiver of the residency requirement was expressly conditioned upon such activity on the part of the claimant and that his voluntary act of not seeking and acquiring a Nassau County residence required his involuntary termination. This was a factual determination solely within the province of the board and, since it is supported by substantial evidence, it must be affirmed. While the doctrine of provoked discharge has been considerably narrowed (see Matter of James[Catherwood], 34 NY 2d 491), it is appropriately applied to the instance of the "involuntary" discharge by an employer for cause flowing from the "voluntary" act or acts of the employee (Matter of James [Catherwood], supra). (See Matter of Malaspina [Corsi], 309 N.Y.413.) The decision of the board should be affirmed.

Decision affirmed, without costs. (January 8, 1976)

COMMENTS

1. It is a settled principle that when an employer has no choice but to discharge a claimant because of a failure to comply with an essential condition of his employment, there is a voluntary leaving of employment. The Court describes the situation as an "involuntary discharge" flowing from the "voluntary act" of the employee.

2. In the instant case claimant at time of hire was a resident of Nassau County but later moved to Suffolk County. When his out-of-county residence was discovered he was allowed to continue to work on condition that he move back. When he failed to do so, the employer had no choice but to discharge him.

3. Other cases of this nature are reported in the Interpretation Service A-750-1286 revised; A-750-1367 and A-750-1720.




A-750-1805
Index 1135-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 15,1976

Interpretation Service -Benefit Claims
MISCONDUCT
Carelessness

Appeal Board Decision 212.906

LEAVING CASH UNPROTECTED

Carelessly leaving the contents of a cash register unprotected, resulting in theft by a customer, is gross negligence constituting misconduct, where claimant had recently been warned about such behavior after a similar incident.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective February 14, 1975 because she lost her employment through misconduct in connection therewith, is overruled.

Appeal by: Employer

Findings of fact: Claimant, a saleswoman, worked for a large department store from September 1, 1971 until February 13, 1975. The employer had a rule prohibiting the careless handling of store assets. Claimant was aware of this rule. On December 31, 1974, while claimant was handling a sale money was stolen from her cash register which she had carelessly left open. Claimant received a warning as a result of such incident. Thereafter on February 12, 1975 about five minutes before claimant's closing time, she placed an envelope with the contents of the cash register on a counter while she waited on a customer. While so doing, another customer stole a sum of money from the envelope. Because of this incident she was terminated the following day because of gross negligence.

Opinion: The evidence establishes that claimant failed, to exercise care in handling company money a short time after there had been a similar loss due to her negligence. She had received a warning and but for her further carelessness there would not have been a second loss. Such conduct on her part constituted a "careless handling of company assets" in violation of a stated rule of her employment. Under the circumstances, claimant's behavior was tantamount to gross negligence and we accordingly conclude she lost her employment due to misconduct in connection therewith.

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

The decision of the referee is reversed. (January 12, 1976)

COMMENTS

1. The facts of this case show how recurrent carelessness can rise to the level of misconduct. The Appeal Board noted that only six weeks after the first incident, in which claimant left the register open, leading to theft, and a warning by her supervisor, she was careless with a cash envelope again resulting in theft. The Board characterized her actions as gross negligence.

2. Judgment should be used in applying this rule. It generally should not be applied to isolated instances of inadvertence. It also generally should not be applied to cases of mere inefficiency; for example, where a person handling cash, such as a bank teller or retail store clerk, is discharged for "shortages" and there is no evidence of dishonesty or violation of procedural rules.




A-750-1807
Index 1130-4
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 29, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Behavior off job

Appeal Board Decision 214,704

JOB REQUIRING GOOD CHARACTER

Commission of a crime, even outside of working hours, may be misconduct, if claimant's occupation (such as parcel delivery to private homes) requires that he be of good character.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective February 21, 1975 because he lost his employment through misconduct in connection therewith, is overruled.

Appealed by: Employer

Findings of fact: Claimant worked as a route salesman for a parcel delivery service for approximately 4 years through February 21, 1975. Claimant made deliveries to private homes during the day as part of his regular duties. In late August 1974 claimant was arrested and charged with the crimes of sexual abuse, unlawful imprisonment and sodomy.

On February 21, 1975 he was convicted of sexual abuse in the first degree and of unlawful imprisonment in the second degree. He filed an appeal therefrom and was released on bail. Claimant's trial was given extensive coverage in the local press. As a result, of his conviction, claimant was discharged by his employer in conformance with a company rule which bars the continued employment of certain convicted felons.

Opinion: The credible evidence establishes that claimant knew or reasonably should have known that his employer would not retain him in its employment, to make deliveries to homes, if he were not a person of good moral character. His job required that he be of good moral character. Whether or not he was aware of the rule of the employer is not material. When he committed the sex crimes of which he was found guilty, claimant acted in a manner that affected his job and adversely affected the employer's interest. Accordingly, we conclude that he lost his employment through misconduct in connection therewith.

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

The decision of the referee is reversed. (March 10, 1976)

COMMENTS

Although not stated in the Board's decision, the act for which claimant was convicted did not occur during his hours of employment nor did they arise from his employment.




A-750-1808
Index 1460A-11
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

April 21, 1976

Interpretation Service -Benefit Claims
TOTAL UNEMPLOYMENT
Vacation Pay

Appeal Board Decision 216,724

DESIGNATION CONTRARY TO UNION CONTRACT

The time designated as a vacation period by letter to a laid-off employee enclosing a check for same, is not a paid vacation period within the meaning of the Law, when the collective bargaining agreement does not provide for any means of designating a vacation period other than bidding by the employee for a specific time, and claimant had not done so.

Referee decision: The initial determination of the local office holding him ineligible to receive benefits effective July 21, through August 3, 1975 because it was a paid vacation period for which no benefits are payable, is sustained.

Appealed by: Claimant

Findings of fact: Claimant, a steel worker was laid off on April 30, 1975. On July 14, 1975, the employer sent claimant a letter designating July 21 to August 3, 1975 as his vacation period along with a check for the same. Claimant did not know that he would receive any vacation pay during his layoff period. He had not previously designated or requested any vacation period under the provisions of the collective bargaining agreement between his union and the employer.

The collective bargaining agreement does not provide for any other means of designating a vacation period than by bidding by the employee for a specific period.

Opinion: Section 591.3(b) of the Law defines vacation period as the time designated in accordance with the collective bargaining agreement. It further states that if the collective bargaining agreement is silent as to such time, then the time designated by the employer in writing and announced to the employees in advance is the "vacation period." There exists a collective bargaining agreement to which the employer and claimant are parties. Article 7, Section 4 thereof states: "vacations will be bid between January 17 and February 15, and posted before March of each year." Since there is no provision for fixing a vacation period other than the foregoing provision for the bidding of vacation periods by employees, the employer had no right to unilaterally designate a vacation period for the claimant. Since the claimant did not bid for the vacation period, in accordance with the agreement, the unilateral action of the employer does not establish a paid vacation period under Section 591.3 of the Law. Claimant was eligible to receive benefits for the period in issue herein.

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

The decision of the referee is reversed. (March 19, 1976)

COMMENTS

  1. It is well established that a claimant is ineligible for benefits for a properly designate paid vacation period, or paid holiday, even though his employment was terminated prior thereto. (See A-750-1613; and A-750-1730)

  2. In the instant case a disqualification for paid vacation period was not upheld because the vacation period was not properly designated. Even though the designation was made in advance (the letter dated July 14, 1975 designated July 21 to August 3 as claimant's vacation period) the Appeal Board found it to be contrary to the terms of the union contract, which provided only for bidding by the employee for his vacation period. Otherwise, it is presumed the Board would have sustained the determination.

  3. This decision emphasizes the importance or securing the relevant provisions of the collective bargaining agreement when making determinations on the issue of paid vacation period.




A-750-1809
Index 1137-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

May 25, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Insubordination

COURT OF APPEALS DECISION

Matter of Dominic A. DeGrego

POLITICAL BUTTON ON UNIFORM

Refusal to comply with an employer's order to remove a political button from the uniform worn by claimant bearing the company name, is not misconduct in the absence of evidence of detriment to the employer's interest or of violation of an established company rule.

DECISION

This appeal involves the concept of provoked discharge as a bar to eligibility or unemployment compensation benefits. In Matter of James v. Levine (34 NY2d 491) we circumscribed its application to cases where the employer lacked a choice in firing the claimant. In any other situation the Division of Unemployment Insurance may not deny benefits on the ground that the employee provoked his discharge.

At the time the instant controversy began, the claimant had been employed as a plumber's helper by Rhinebeck Plumbing & Heating, Inc. for over two years. Throughout this period his performance had been entirely satisfactory. Since most of his work day was spent away from Rhinebeck and on the premises of its customers, DeGrego was provided with a uniform bearing: his employer's name. The record is devoid of any company policy with respect to the uniform and it appears that other employees occasionally wore emblems or buttons on their work uniform.

For two successive days prior to his discharge on September 18, 1973 DeGrego wore a button containing the statement "Impeachment with Honor" in obvious reference to the crisis in Washington. On the second day claimant was approached by the president of the company who advised him that he could not wear the button if he wished to keep his job. Although no complaints or response had been received from customers, the employer felt that this button could affect Rhinebeck's relationship with its clientele. DeGrego refused to remove the button claiming that he was entitled to express a strongly felt political statement. As a result of this refusal he was fired.

Two days later he applied for unemployment insurance benefits which were denied by the Labor Department on the ground that he had quit his job without good cause by refusing to comply with a reasonable directive from his employer. This determination was sustained by a referee and the Unemployment Insurance Appeal Board who found that DeGrego had provoked his discharge which was the equivalent of voluntary leaving employment without good cause, In a proceeding to review this denial of benefits the Appellate Division reversed stating that unemployment benefits could not be denied where the discharged employee was exercising his freedom of speech as guaranteed by the Constitution (46 AD2d 253), We affirm but deem it unnecessary to reach the constitutional issue in view of the agency's misapplication of the concept of provoked discharge end the lack of any other disqualifying condition,

Provoked discharge, a gloss over the statutory disqualification for voluntary separation without good cause (Labor Law §593 subd, 1) is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgressed a legitimate known obligation and leaves the employer no choice but to discharge him, In such a case the agency is entitled to put substance over form and to conclude that the employee voluntarily left his job without good cause. This approach was first recognized by our Court in Matter of Malaspina [Corsi] (309 NY 413). There, provoked discharge was considered applicable where a collective bargaining agreement mandated the discharge of those who refused to join the union.

Since this concept was subject to arbitrary application and was inappropriately extended without statutory authority, our Court in Matter of James [Levine]. (supra, 34 NY2d 491) adopted a very strict view of it. We made it clear that a denial of unemployment insurance benefits due to provoked discharge would be sustained only where the employer has no range of discretion but was called to terminate employment. In addition, James recognized that although provoked discharge might be inapplicable, the actions of the employee may amount to misconduct thereby disqualifying him from benefits. By the same token; where the employee has not provoked discharge or engaged in misconduct he will be entitled to benefits despite the fact that the employer may have fired the employee for valid reasons. As noted in Matter of Heitzenratter [Hoboken Chem. Corp.] (19 NY2d 1, 9-10) this possibility was "designedly incorporated in the legislative scheme.

Applying these principles to the case at bar, it is clear that DeGrego did not provoke his discharge since the employer was not compelled to fire him. Nor is there any evidence to support the contention that claimant's conduct was detrimental to the employer's interest or in violation of a reasonable work condition so as to constitute misconduct.

In response to the erroneous contention pressed by the dissent that DeGrego deliberately left his employment we need only look to the findings of fact which were made by the referee who conducted the hearing and which were adopted en toto by the Appeal Board. After a review of the testimony and evidence adduced at the hearing the referee explicitly found as a matter of fact that the claimant was discharged as a result of his failure to remove the button. This clear and unequivocal finding is supported by the record which includes DeGrego's testimony, the sole witness at the hearing, that he did not leave voluntarily but was discharged, Section 623 of the Labor Law provides that a decision by the referee which is adopted by the Appeal Board is final and conclusive on all questions of fact. The dissent's apparent reliance on the notice of ineligibility which was sent to DeGrego prior to the hearing is misplaced.

Even if we were to accept all the factors articulated by the dissent it would only lead us to one conclusion that the employer was entitled to fire DeGrego. Both the dissent and the Unemployment Insurance Appeal Board, however, miss the point. An employee may be fired under these circumstances and yet still be entitled to unemployment compensation.

Aside from the extreme situation presented in Malaspina supra, the concept of provoked discharge is without validity and may not be used to deny benefits.

Accordingly, the order of the Appellate Division should be affirmed. (April 8, 1976)

Dissenting opinion

The officials charged with the responsibility for administering the State labor laws found that the claimant left his employment rather than report to work without wearing a potentially inflammatory political button. The record supports their conclusion that claimant abandoned his employment without cause or justification, thereby rendering him ineligible to receive unemployment insurance benefits without a period of subsequent employment. I would also hold that denial of unemployment insurance benefits under the circumstances presented, is not precluded by the First and Fourteenth Amendments of the Federal Constitution.

The claimant was employed as a plumber's helper by a heating and plumbing concern in Rhinebeck, New York. His duties required him to work at the residences and business premises of his employer's customers. In September 1973, at the height of the Watergate investigation, claimant began reporting to work with a button on his work uniform that impliedly advocated the impeachment of the President of the United States. On the second day the president of the firm requested that claimant not wear the button to work on the ground that "it was detrimental to his business." Claimant refused and was fired. If the claimant had removed the button, he would not have been discharged. In a report of employment filed with the State Department of Labor, the employer reported that the claimant "left because we would not allow him to wear a political button on our Rhinebeck Plbg. uniform. We felt the button could affect our relationship with the customers. We informed him that there was [sic] no personal feelings involved, but the manner in which he conducted himself during working hours could also reflect against Rhinebeck Plbg's name. This in turn could affect the outlook for the entire company." Claimant's application for unemployment insurance benefits was denied by the Industrial Commissioner upon the ground that he "quit (his) job without good cause." This determination was sustained by a referee and the Unemployment Insurance Appeal Board affirmed. The Appellate Division, Third Department, reversed, finding that a denial of unemployment insurance benefits would be state action penalizing the claimant for exercising his right to freedom of speech. (46 AD2d 253.)

I would reverse. The Unemployment Insurance Law provides that an employee who voluntarily leaves his employment or who is discharged for misconduct in connection with his employment is ineligible to receive unemployment insurance benefits, at least until a subsequent re-qualifying period of employment is completed (Labor Law, § 593). In Matter of James v. Levine (34 NY 2d 491), the court set forth the tests to be applied in assessing the applicability of, the statute to a given set of facts. Voluntary separation is usually "confined to the giving up of employment permanently or temporarily, without cause or justification." (34 NY 2d at p 498) on the other hand, where an employee is discharged for valid cause, the cause must "rise to the level of misconduct before an employee becomes ineligible to receive benefits." (34 NY 2d at p 496).

A voluntary separation from employment will only disqualify a claimant if the separation was "without good cause". (Labor Law § 593 [subd. 1]). Whether a particular separation from employment is voluntary without good cause is usually a question of fact to be resolved at the administrative level. (Matter of Fisher [Levine], 36 NY 2d 146, 150) If there is substantial evidence to support the determination made by the officials directly responsible for the administration of State labor laws, that determination may not be set aside by the court. (labor Law, § 623, Matter of Green [Republic Steel Corporation], 37 NY 2d 554, 559)

In this case, there is substantial evidence to support the conclusion that the claimant's separation was voluntary and without good cause. An employer, unless precluded by statute or collective bargaining agreement, is entitled to establish reasonable rules and regulations governing the conduct of his employees. (Matter of Gladstone [Catherwood], 36 AD2d 204, 205, affd 30 NY2d 576) Where the rules and conditions of employment promulgated by the employer are reasonable, an employee who refuses to abide by them, and leaves his employment, acts without good cause. (See, eg Matter of Blau [Catherwood], 29 AD2d 701; Matter of Glassmith [Cathervood], 27 AD2d 584; 62 N Y Jur, Unemployment Insurance §111, p 98.)

Despite the majority's insistence upon a narrow reading of the referee's findings of fact, it is manifest that the administrative officials, at all levels of. the adjudicatory process, found that the claimant voluntarily left his employment, rather than comply with a reasonable rule established by his employer. The Industrial Commissioner specifically determined that the claimant "quit" his job. The referee, after a hearing, concluded that "[t]he initial determination is sustained." The referee's decision, in turn, was affirmed by the unemployment Insurance Appeal Board.

In my view, the hearing record supports the finding that the claimant voluntarily left his employment. Although initially stating that he was discharged, claimant subsequently acknowledged that he had really been instructed that, if he desired to continue working with the employer, he would have to remove the button from his work uniform. He elected not to remove the button and left.

The majority places great reliance on the statement in the referee's descriptive findings of fact that claimant "was discharged as a result of his failure" to remove the button. Ignored is the fact that the referee, in his decision, sustained the initial determination by the Industrial Commissioner that the claimant voluntarily quit his job. Indeed, in the course of the hearing, the referee stated: "I am prepared to find that the claimant quit his job because he was given an option, and he could have continued to work for the employer by complying with the employer's direct request, and he chose not to, and therefore, he left the job." When the claimant's attorney protested this proposed finding, the referee cut him off with the comment that "the facts are clear here". He referee went on to explain that the claimant "was given an option to comply with the request or the directive or not, and he could have continued to work there, but he chose not to do so, and it was up to him, and he took action, and there is no way that can be interpreted any other way…"

The sole conclusion to be drawn from this record is that the claimant was given the option of continuing his employment relationship under rules established by the employer. The granting of such an option is hardly consonant with the air of finality that attends ultimate discharge. A fair reading of the record belies the interpretation effected by the majority. The court obfuscates what was eminently clear to the labor officials who determined this case, that the claimant voluntarily left his job.

Moreover, the majority confuses voluntary separation without good cause with the doctrine of provoked discharge. Voluntary separation occurs when the employee without valid cause or justification, declines to continue his employment. In this case, the claimant deliberately left his employment rather than comply with a reasonable condition of employment. A provoked discharge, on the other hand, is a discharge by the employer necessitated by governmental regulation or union bargaining agreement. The classic example is a discharge mandated by the employee's refusal to abide by a union shop provision in a collective bargaining agreement. (Matter of Malaspina [Corsi], 309 NY 413). In both voluntary and provoked discharge an act of the employee is the producing cause of the termination. The same might be said of employee misconduct, which even the majority concedes will result in ineligibility. The critical distinction between voluntary separation and provoked discharge is that the former is voluntary leaving of employment by the employee without good cause, whereas the latter is an involuntary discharge by the employer of the employee for good cause. The doctrine of provoked discharge must be carefully limited since it is but "a legitimate and essential gloss of the statute to fill a gap" (Matter of James [Levine], 34 NY2d at p 495, supra.) On the other hand, a voluntary separation without good cause must create ineligibility since the Legislature has specifically required that it should. It is for this reason that the crucial fact is not, as the majority views it, that the employer might not have chosen to fire claimant, what is significant is that the claimant chose not to work for the employer rather than comply with work rules established by the employer and found to be reasonable by State labor officials.

An employer whose employees come into contact with members of the public may reasonably require that the employees refrain from conduct that might trigger adverse public reaction. (See Eastern Greyhound Lines Division of Greyhound Lines v New York state Division of Human Rights, 27 NY2d 279; Matter of Gladstone [Catherwood], 36 AD2d 204, affd 30 NY2d 576, supra). The need for such regulation is particularly acute where the employees perform their duties in homes or on the private property of customers. Common experience reveals that the employer will be held responsible for employee actions that the client deems noxious or offensive. The average employer has no interest in acting as a self-appointed community censor. The real concern, and it is a valid one, is that the employer will be financially damaged as a result of consumer unhappiness with the actions of his employee.

It is a commonplace fact of the human experience that disputes or disagreements over controversial subjects may arouse anger or animosity in the participants to the discussion. Passions may be particularly inflamed by adverse comments directed at respected or venerated community leaders. In this case, the employer had every reason to be concerned that some of his customers might be offended by criticism of the President of the United States. The occupant of that office is generally widely admired and respected. The employer could reasonably fear that a button, sported by his employee, suggesting that the President should be impeached might offend the sensibilities of some of his customers. At the very least, it might touch off a rancorous political debate which could arouse a customer's ill-will. An employer should be able to protect himself against that eventuality by requiring that his employees, during business hours, refrain from overt political activity. Moreover, the employer is not required to take a poll or otherwise measure the likelihood that his customers will react adversely to his employee's political views. The majority's insistence that the employer prove that the employee's conduct was detrimental to his business interest is both irrelevant and naive. It is sufficient if the employer believe that his business will be adversely affected by the employee's conduct.

Denying an employee unemployment insurance benefits for failure to abide by a reasonable regulation of employee conduct does not involve state infringement of the employee's First Amendment rights. The freedom of speech is not an absolute right. It is subject to reasonable regulations under certain circumstances. (See, e.g., Tinker v Des Moines Independent Community School District, 393 US 503, 513). Expression may be "basically incompatible with the normal activity of a particular place at a particular time." (Grayned v City of Rockford, 408 US 104, 116). Entrance into an employment relationship necessarily entails some reduction in personal liberty. An employer may require, within reason, that an employee report to work at a given place, at a given time, dressed in a certain manner, that the work be done in accordance with established practices, that the employee heed the instructions of his supervisors and that fellow employees be permitted to work undisturbed. These restrictions are normally accepted by our society as necessary for the orderly conduct of a business and as part of the process by which one earns a livelihood. Persons who are unwilling to abide by reasonable regulations are, of course, free to decline employment. However, refusal to comply with reasonable work regulations should preclude receipt of unemployment insurance benefits.

Sherbert v. Verner (374 US 398) is not to the contrary. In that case, an employee was denied unemployment insurance benefits because of her refusal to accept Saturday work for religious reasons. The court ruled that government could not permissibly require an employee to choose between abandoning the precepts of her religion in order to work and, on the other hand, following her religion and forfeiting unemployment insurance benefits. (374 US at p 404). The effect of the state rule under consideration in Sherbert was to penalize the employee for holding a particular religious belief. Withholding unemployment insurance benefits where the employee insists on being able to make political statements to members of the public on company time, to the possible detriment of the business, does not penalize the employee for holding a particular belief. Nor does it require t the employee to take an affirmative action in violation of his conscience. (Matter of Moran (Catherwood], 34 AD2d 694, affd 27 NY2d 946). Rather, it is an affirmation of the general rule that an employer is not obligated to permit his employees to engage in overt political activity during business hours. The employee is not constrained to abandon his political opinions (see Sherbert v. Verner, 374 US at p 410, supra), but may not insist on expressing them on his employer's time to his employer's customers.

For the reasons stated, I dissent and vote to reverse the order of the Appellate Division.

CQMMENTS

  1. The Appeal Board decision in this case that claimant provoked his discharge was issued prior to the ruling of the Court of Appeals in Matter of James virtually outlawing that concept. (See A-750-1775). Subsequent to Matter of James the courts had been modifying provoked discharge disqualifications to misconduct where appropriate. The court chose not to do so here because of the lack of disqualifying evidence.

  2. Should a similar case arise containing such disqualifying evidence for example, claimant refuses to comply with the employer's order to remove the button, following customer complaints or loss of business, or claimant wears the button in knowing violation of an established company rule a disqualification for misconduct would be in order.




A-750-1810
Index: 1152-6
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 14, 1976

Interpretation Service -Benefit Claims
MISOONDUCT
Drugs

Appeal Board Decision 219,239

MARIJUANA

Smoking marijuana during working hours is misconduct.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective August 13, 1975 because she lost her employment through misconduct in connection therewith, is overruled.

Appealed by: Employer

findings of fact: Claimant worked as a telephone switchboard operator at a hospital for almost three years. In January, 1975 she was promoted to senior operator, in charge of several other operators. Thereafter, friction developed between claimant and her subordinates. When claimant reported to her supervisor that one of the operators was not getting along with a co-worker, the operator was interviewed by the chief operator. During that discussion, the operator reported that there were more serious matters of conduct in the telephone operators department, and specifically that claimant had been smoking marijuana during working hours. The chief operator initiated an investigation of this matter. Claimant remained silent during the investigation. Claimant smoked marijuana during working hours and knew that one of the other operators did so during the same work shift. Claimant was discharged because she herself had smoked marijuana during working hours.

Opinion: We do not agree that the employer's witnesses' testimony should be rejected for the reason stated by the referee. The fact the witnesses did not reveal claimant's actions for some months is immaterial. The motives of the employer's witnesses may affect their credibility. However, the total proof herein established that claimant, a supervisor of operators, smoked marijuana during working hours. This constitutes misconduct in connection with her employment.

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

The decision of the referee is reversed. (May 18, 1976)

COMMENTS

1. The Appeal Board has also upheld a misconduct disqualification for a theater usher who was discharged because he admitted smoking marijuana while on duty. The admission was made in the course of questioning in connection with a robbery of an affiliated theater. (A.B. 217,936; not reported)

2. On the other hand, the Board has held that discharge because of arrest and conviction for possession of marijuana while off-duty and outside the employer's premises is not disqualifying, unless the reputation of the employer is affected. (A.B. 160,638 and 163,099A; not reported)




A-750-1811
Index 1120-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 18, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Acknowledgements and agreements

Appeal Board Decision 218,171

PROBATION PERIOD

Refusal to sign an acknowledgement of the imposition of a probation period is insubordination constituting misconduct, when the form states that signature does not mean agreement with the reasons for the probation.

Referee decision: The initial determination of the local office disqualified the claimant from receiving benefits effective August 27, 1975 because he lost his employment through misconduct in connection therewith, is overruled.

Appealed by: Employer

Findings of fact: Claimant, an accountant, was employed by a bank from December 22, 1969 through August 26, 1975. On August 26, 1975 he was placed on probation for poor work performance and excessive absences. A probation report was typed indicating the reasons and probable causes for probation. He was asked to sign his name in the space on the probation form designated "employee acknowledgement". It stated in print that he had read the reasons for probation and probable causes and that by signing his name he did not necessarily express agreement with them. Claimant refused to sign the probation form contending its contents were false. He was sent to personnel, given an additional opportunity to sign the form and when again he refused, was immediately dismissed. If claimant had signed the form he would not have been dismissed.

Opinion: The credible evidence establishes that claimant refused to comply with the reasonable request of his employer whereby he would have acknowledged receipt of the warning. Claimant knew that by signing the form it did not mean that he agreed with the contents. Accordingly, the claimant was insubordinate in his continued refusal to comply with the employer's request and his behavior constituted insubordination. Therefore, his loss of employment was due to misconduct in connection therewith.

Decision: The initial determination of the local office is sustained. The decision of the referee is reversed. (May 27,1976)

COMMENTS

1. The Appeal Board has held that discharge because of refusal to sign an acknowledgement of the imposition of a probation period because of unsatisfactory work performance, is not disqualifying, when signature would be an admission of being an unsatisfactory employee. In that case the Board indicated claimant was justified in refusing to agree to something she did not believe was the truth. (A.B. 137,392; not reported). The instant case is distinguishable in that the form expressly stated that signature did not mean agreement with the reasons for the probation.

2. In these cases it is obviously important to secure a copy of the document in question. Equally important is evidence as to whether or not claimant was aware that refusal to sign the document might result in discharge.




A-750-1812
Index 1685E-3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 25, 1976

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Move from locality

Appeal Board Decision 217,344

COLLEGE STUDENT

A college student leaves part-time employment with good cause to return home at the end of the school year when the dormitory is closed, his earnings are insufficient to support himself, and the employer cannot provide full-time work.

Referee decision: The initial determination of the local office holding the claimant eligible to receive benefits effective May 19. 1975 without any disqualifying conditions is overruled. The employer's objection to the payment of benefits to claimant because effective May 14, 1975, claimant voluntarily left her employment without good cause, is sustained.

Appealed by: Claimant

Findings of fact: Claimant, age 21, was a kinder garden instructor who worked for the employer from March 5, 1975 until May 13, 1975. She was a part-time worker working three days a week, two hours a day at the rate of $2.00 an hour. At the time of the employment claimant was a college student living away from home in a dormitory. Claimant's job was scheduled to continue to June 13, 1975 and there would have been other part-time work for her with similar hours during the summer. Claimant's gross salary was $12 a week and her net pay amounted to $11.30 a week. Her college semester ended May 14, 1975 and there was no place she could stay where her college was located without paying rent. Her only means of financial support at the conclusion of her semester was her part-time employment.

Claimant quit her employment as of May 13, 1975 and returned home to live with her parents.

Opinion: The credible evidence establishes that claimant, a 21 year old college student, quit her part-time employment when her college semester ended. She lived at a school facility while attending college but otherwise resided with her parents during the remainder of the year when she was not attending school. Her earnings as a part-time worker were clearly not sufficient to support herself had she continued her employment. Under similar circumstances the Board has previously held that a claimant so quitting does so with good cause. See Appeal Board 213,415, 208,416. Accordingly, the claimant left her employment with good cause.

Decision: The initial determination of the local office is sustained. The decision of the referee is reversed. (June 3, 1976)

COMMENTS

1. A.B. 208,416, cited by the Appeal Board, concerned a 71-year old part-time salesperson living with her sister in the latter's apartment in New York City. When the sister decided to move to Florida, claimant left her job to accompany her. A.B. 213,415, also cited, concerned a part-time cashier living with her parents in New York City, who left her job to move with them to Florida.

The Board held both quits to be with good cause, on the ground that claimants lost their living accommodations and were unable to subsist alone on their meager part-time salaries. The rule at Interpretation Service Index 1685D-l (AB 160,076) states that membership in a family unit which moves does not in itself constitute good cause for leaving employment; good cause exists only if, apart from the fact of such membership, a compelling reason exists for remaining with the unit. Inability to subsist alone is one such compelling reason. (The fact. that a claimant is under 18 years of age is also a compelling reason to remain with a family unit that moves).

2. presumably the Appeal Board in the instant case would have held the quit to be without good cause if there were evidence that, full-time work was available which claimant rejected or failed to ask for. This question should be explored in any case where the issue turns on financial ability to subsist alone on part time employment, including "move with family" cases.




A-750-1813
Index 1125-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 1, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Alcohol

Appeal Board Decision 220, 961

REPORTING TO WORK DRUNK

Reporting to work in an inebriated condition is misconduct, whether or not there has been a warning to that effect.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 23, 1975 because he lost his employment through misconduct in connection therewith, is overruled.

Appealed by: Industrial Commissioner and employer

Findings of fact: Claimant worked as a credit assistant for approximately one and a half years until October 22, 1975. On that date claimant reported to work under the influence of alcohol. He was unable to work and went home. He was discharged the following day when he reported to work.

Opinion: The evidence establishes that claimant was discharged because he reported to work drunk and was unable to perform his duties. We disagree with the referee's conclusion that because claimant had not been warned about reporting to work in such condition it is not disqualifying. Reporting to work in an admittedly inebriated condition is misconduct in connection with one's employment, whether or not there has been a warning to that effect. Therefore, claimant lost his employment due to misconduct in connection therewith.

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

The decision of the referee, insofar as appealed from, is reversed. (June 2, 1976)

COMMENTS

Please note that no disqualification applies to a discharge under these circumstances if the claimant is a chronic alcoholic whose drinking is beyond his control.




A-750-1816
Index 1740C-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 15, 1976

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Deductions from wages

Appeal Board Decision 223,758

CASH REGISTER SHORTAGE

Leaving employment as a cashier because claimant was required to pay for register shortages, is with good cause since such requirement is a violation of, Section 193 of the Labor Law notwithstanding that claimant's union had agreed to such practice.

Referee decision: The initial determination of the local office disqualifying claimant from receiving benefits effective October 21, 1975 because she voluntarily left her employment without good cause, is modified to be effective October 22, 1975, and as so modified is sustained.

Appealed by: Claimant

Finding. of fact: Claimant worked as a supermarket cashier for about seven months until October 20, 1975. She was required to pay back any shortages in her cash register, which was a term and condition of claimant's employment, pursuant to the collective bargaining agreement between the union and the employer. Claimant paid back for shortages on a number of occasions during the course of her employment. She resigned.

Opinion: Section 193.1 of the Labor law provides :

"No employer shall make any deduction from the wages of an employee, except deductions which:

a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or

b. are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer's premises. Such authorized deductions shall be limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit, of the employee."

Section 193.2 further provides:

" No employer shall make any charge against wages, or require employee to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under the provisions of subdivision one of this section."

Claimant was required as a condition of her employment to make up shortages in her cash register, in violation of the Labor Law. Such a violation by the employer affords claimant good cause to leave her employment, notwithstanding any additional reason she may have had for her resignation. Accordingly, claimant is not subject to disqualification for voluntary leaving her employment without good cause.

Decision: The initial determination of the local office is overruled

The decision of the referee is reversed. (June 9, 1976)

COMMENTS

  1. The above-quoted provision of the Labor Law prohibit the employer from requiring the employee to make up shortages either by deduction from wages (Section 193.1) or by separate transaction (Section 193.2). They do not prohibit the employer from requiring the employee to turn in any overages that may occur.

  2. Section 193 of the Labor Law has also been interpreted as prohibiting an employer from requiring reimbursement for the cost of breakage, spoilage or loss of material, or from making a deduction from wages as a penalty for lateness, other than non-payment for time lost by the employer. On the other hand an employer's rule requiring deductions from the incentive bonus of a plumber for breakage of customers property has been held to be legal, since the full regular wage would not be affected (AB 157,595 ; not reported)




A-750-1817
Index 1105B-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 20, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Relation of offense to discharge

APPELLATE DIVISION DECISION

Matter of Arthur Williams

FEDERAL EMPLOYEE TEMPORARILY REINSTATED

A Federal employee who is disqualified for loss of employment due to misconduct, but who is then temporarily reinstated to his job during the pendency of appeal of his discharge, is subject to a second disqualification for misconduct upon the filing of a new claim after final removal from his job, even though no act of misconduct occurred during the period of reinstatement.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 31, 1975, which affirmed the decision of a Referee sustaining the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits.

Claimant, an elevator operator, worked for the Postal Service, a Federal employer, for a number of years until he was discharged for intoxication on the job and an assault on a supervisor. Claimant had been suspended on two prior occasions. The federal findings concerning claimant's discharge are final because the claimant was afforded an opportunity for a hearing by the Federal agency as to his reasons for termination (Smith v. District Unemployment compensation Board, 435 F. 2d 433). Such acts by the claimant constitute misconduct (Matter of Poveda [Catherwood], 28 AD 2d 781; Matter of Paulsen [Catherwood], 27 AD 2d 493).

Claimant filed for unemployment benefits but was disqualified for leaving his employment without good cause by provoking his discharge, which determination was sustained on appeal. Claimant thereupon appealed his discharge to the Federal Civil Service Commission. In the appellate process thereunder, claimant was restored to pay status pending further appeal by the Postal Service. He was directed to report to work, which he did, and continued to work until he was again discharged when the Federal Appeal and Review Board affirmed the decision of the New York Regional Office in removing claimant for misconduct. Claimant then filed a new original claim for unemployment benefits. The instant initial determination was issued. From that determination, this appeal ensued.

Claimant contends that his ordered reinstatement was new employment during which no misconduct occurred and he did not lose his last employment through, misconduct. We do not agree. At the time he was ordered reinstated he was, in the midst of administrative review and his reinstatement was thus temporary pending the determination of the appeal board. Such temporary reinstatement does not constitute new employment. When the appeal was determined in a manner unfavorable to claimant he was terminated for the original misconduct.

Decision affirmed, without costs. (March 25, 1976)




A-750-1818
Index 1130-9
1150C-7
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

August 13, 1976

Interpretation Service -Benefit Claims
MISCONDUCT
Behavior off job Dishonesty

Appeal Board Decision 222,514

STEALING ELECTRICITY

Stealing electricity by tampering with the equipment installed in claimant's home by his employer, a public utility, is misconduct in connection with employment.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective December 6, 1975, because he lost his employment through misconduct in connection therewith, is overruled.

Appealed by: Employer and Industrial Commissioner.

Findings of fact: Claimant was employed by a power utility company for 23 years until December 5, 1975. Because of his failure to pay his bills, the electricity supplied to claimant's residence was cut off by the supplier, claimant's employer. Some property of the employer, including lead-in wiring remained in the residence. By various means, claimant tampered with the employer's equipment and provided his residence with free electricity. When this was discovered, claimant was discharged.

Opinion: The evidence establishes that the claimant tampered with the property of his employer and thereby stole electricity supplied by the employer. His action constituted misconduct in connection with his employment, no less than an employee's stealing from a retail store. The theft involved a knowing misuse of, and tampering with, the employer's property. It makes no difference that this property was on claimant's premises. (Appeal Board 167,371, Referee #7285-71) Accordingly, we hold that the claimant lost his employment through misconduct in connection therewith.

Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective December 6,1975, because he lost his employment through misconduct in connection therewith is sustained.

The decision of the referee is reversed. (July 22, 1976)

COMMENTS

Appeal Board case 161,311, cited by the Board, concerned a telephone company employee whose home telephone was removed for non-payment of his bills. He thereupon installed an illegal phone connected to the telephone line of a neighbor without the latter's knowledge. He was discharged when the scheme was discovered. A disqualification for misconduct in connection with employment was upheld.




A-750-1820
Index 1460F-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

August 27, 1976

Interpretation Service - Benefit Claims
TOTAL UNEMPLOYMENT
Payments without work

Appeal Board Decision 217,480

PART-TIME COLLEGE INSTRUCTOR

A part-time college instructor whose employment contract specifies the dates of teaching sessions and the compensation therefor, is employed on such days and any other days on which he performs substantial services in connection therewith, such as preparing for the lecture or counseling students, but is totally unemployed on all other days during the contract period.

Referee decisions: (1) The initial determinations of the local office holding the claimants H.O. and L.S. eligible to receive partial benefits effective October 7, 1974 and February 24, 1975 respectively, are sustained. The employer's objections thereto on the grounds that claimants were not totally unemployed on the days for which they claimed benefits, and because their weeks of employment and remuneration are to be disregarded pursuant to Section 590.10 of the Law are overruled.

Appealed by: Employer

(2) The initial determination of the local office holding claimant L.R. eligible to receive partial benefits effective September 16, 1974 is overruled. The employer's objection thereto on the ground that he was not totally unemployed during the days for which he claimed partial benefits, is sustained. The referee did not rule on the employer's objection that claimant; L.R 's weeks of employment and remuneration are to be disregarded pursuant to Section 590.10 of the Law.

Appealed by: Claimant

Findings of fact: The claimants herein were engaged in teaching capacities for the employer university during the periods in issue.

Claimant H.O., a lecturer in German, had contracts with the employer to teach during the fall and spring terms of the 1974-75 academic year. The contract for the fall term ran from September 23, 1974 to January 13, 1975 and provided that claimant teach 28 sessions on Monday and Wednesday evenings from 6:00 p.m. to 7:50 p.m. His compensation for the term was $950. The contract for the spring term ran from February 3, 1975 until May 19, 1975 and provided that he teach a total of 70 sessions on Monday and Wednesday evenings from 6:00 p.m. to 7:50 p.m. and from 8:00 p.m. to 9:50 p.m. and Tuesday evenings from 8:00 p.m. to 9:50 p.m. with a compensation of $2375 for the term.

Claimant H.O. spent time outside of the classroom to prepare for his classes, but all of such preparation was done on the days in which he had classes. He performed no other services for the employer during the period in issue. He frequently read foreign periodicals for his own enjoyment and professional development but was not paid for such activities.

Claimant H.O. filed a claim for benefits effective October 7, 1974 and there-after received partial unemployment benefits based upon those days on which he did not work.

Claimant L.S. worked for the employer as an instructor in film and television. His contract for the spring 1975 term ran from February 5, 1975 until May 14, 1975. He taught a course in film editing on Wednesdays from 2:00 p.m. to 4:30 p.m. with a compensation of $1050. All of his preparation for the class was done on the days on which he gave his class. He performed no other services for the employer during the period in issue. As part of his professional development he read technical publications and viewed film in order to keep abreast of the latest techniques. He was not paid for such activities.

Claimant L.S. filed a claim for benefits effective February 24, 1975 and there-after received partial unemployment benefits based upon those days on which he did not work.

Claimant L.R. was an adjunct professor of theatre and advisor during the fall 1974 and spring 1975 terms. His contract provided that he teach a course in analytical thinking on Tuesdays and Thursdays from 12:45 p.m. to 2:15 p.m. On the same days he counseled students in his role as an advisor. His compensation was set at $2600. He did not render any other services to the employer. Occasionally his marking of papers submitted by students on regular class days would extend into the following day. During the remaining days of the week claimant L.R. sought to broaden his professional knowledge by reading and adding materials to his ongoing research. He was not paid for such activities.

Claimant L.R. filed a claim for benefits effective September 16, 1974. He received partial unemployment benefits based upon those days in which he did no work. Subsequent to February 2, 1975 he no longer claimed benefits as his earnings were above $95 per week.

Opinion: The employer's objections to the payment of partial unemployment benefits to the claimants herein are based on the contentions that they lacked total unemployment on the days when they did not teach class or advise students, and that pursuant to Section 590.10 of the Law, claimants weeks of employment and remuneration earned with the employer are to be disregarded.

As for claimants H.O. and L.S. the evidence establishes that they performed services for the employer only on those days in which they taught class. The evidence does not support the contention that they performed services for the employer on any other days. While on their free days both these claimant's read in their respective fields in order to keep abreast and maintain their expertise, they were not paid by the employer for such activities nor were they, part of the services they rendered to the employer under their contracts of employment. Under the circumstances these claimants were totally unemployed on those days for which they claimed benefits.

As for claimant L.R., his occasional marking of papers on his free days was such an intermittent and minimal activity that we do not consider it substantial enough to hold that he lacked total unemployment on those days. As with the other two claimants herein, claimant L.R. sought to broaden his professional knowledge through reading and research, but as with the others, he was not paid for such activities nor were they part of the services he rendered to the employer under his contract of employment. Under the circumstances, claimant L. R. was totally unemployed on those days for which he claimed benefits.

We also reject the employer's contention that Section 590.10 of the Law applies to these claimants and bars them from receiving benefits. That section is concerned only with a period between two successive academic years or a period between two regular but not successive terms. The cases herein do not deal with such periods and therefore that section has no application to these cases.

Decision: The initial determination of the local office holding the claimant H.O. eligible to receive partial unemployment benefits effective October 7, 1974 for two days each statutory week through January 13, 1975 and from February 3, 1975 through May 19, 1975 is sustained.

The initial determination of the local office holding the claimant L. S. eligible to receive partial unemployment benefits effective February 24, 1975 for three days each statutory week through May 14, 1975 is sustained.

The initial determination of the local office holding the claimant L.R. eligible to receive partial unemployment benefits effective September 16, 1974 for two days each statutory week through February 2, 1975 is sustained.

The employer's objections to the above determinations are overruled.

The decision of the referee, insofar as appealed from, is modified in accordance with the above and as so modified is affirmed. (August 9, 1976)

COMMENTS

1. This decision represents a modification of the general rule that a teacher or other professional individual working under an employment contract which specifies the total salary for the period of the contract, is not totally unemployed on each day in the life of the contract. (A-750-1178 revised; and Special Bulletin A-710-48, part I). It indicates that the general rule does not apply to contracts for part-time employment.

2. For correct determinations in these cases and to avoid overpayments where partial benefits are claimed, it would appear appropriate to inform the claimant at the outset of his responsibility to mark his insurance booklet to show not only the dates on which he taught a class session but also the dates on which substantial services were performed in connection therewith, such as indicated in the instant rule.

3. In determining what constitutes the performance of substantial services to the employer under the contract of employment, the Appeal Board in its opinion excluded the reading and research engaged in by the claimant in order to maintain their expertise and broaden their professional knowledge. Also, the occasional instances where the marking of papers submitted by students on regular class days extended into the following day, were described by the Board as "such an intermittent and minimal activity that we do not consider it substantial enough to hold that claimant lacked total unemployment on those days".




A-750-1821
Index 1150A-8
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

August 30, 1976

Interpretation Service - Benefit Claims
MISCONDUCT
Falsification of employment application

APPELLATE DIVISION DECISION

Matter of Frank Starich

HIGH SCHOOL GRADUATION

Falsely claiming on the employment application of a municipality to be a high school graduate is misconduct.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 5, 1975, which affirmed the decision of a Referee sustaining the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective November 20, 1974 because he lost his employment through misconduct in connection therewith.

On claimant's application for employment, he indicated he was a high school graduate. Subsequent investigation by his employer revealed that he had not completed high school. Claimant's contentions in support of his claim were rejected by the board and there is substantial evidence to support its determination of misconduct (Matter of Collazo [Levine ], AD 2d [Jan. 8, 1976]: Matter Gunther [Levine ], 47 AD 2d 811).

Decision affirmed, without costs. (May 6, 1976)

COMMENTS

In Appellate Division decision, Matter of Gunther, (unreported) cited above, a data systems employee was discharged by a private employer for falsely stating in his employment application that he had a masters degree in business administration. Disqualification was sustained by the Court.




A-750-1822
Index 1190-3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 1, 1976

Interpretation Service - Benefit Claims
MISCONDUCT
Other offenses

Appeal Board Decision 222,419

POLICY NUMBERS

Accepting illegal policy number bets from coworkers on the employer's premises, is misconduct.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective November 26, 1975, because he lost his employment through misconduct in connection therewith, is overruled.

Appealed by: Employer

Findings of fact: Claimant, a cook, was employed by a department store for almost 23 years, until November 25, 1975. During the course of his employment claimant accepted policy number bets from co-workers on the employer's premises. On the last day of his employment claimant voluntarily submitted to a search. As a result, policy numbers were found in his possession and claimant signed statements admitting his guilt.

Opinion: The credible evidence now before the Board establishes that claimant was accepting policy number bets from co-workers on the employer's premises in violation of Law. Significantly, claimant admitted his guilt in signed statements. Under the circumstances we hold that claimant lost his employment through misconduct in connection therewith.

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

The decision of the referee is reversed. (August 9, 1976)




A-750-1823
Index 1130-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 8, 1976

Interpretation Service - Benefit Claims
MISCONDUCT
Other offenses

Appeal Board Decision 226,217

POLYGRAPH TEST

Refusal to take a polygraph test is not misconduct.

Referee decision: The initial determination of the local office disqualifying claimant from receiving benefits effective January 22, 1976, because he voluntarily left his employment without good cause, is sustained.

Appealed by: Claimant

Findings of fact: The claimant was employed as a supervisor in a precious metals working company for approximately five years as a supervisor until January 21, 1976. In the course of an investigation, the claimant was found to have a quantity of gold alloy locked in his toolbox, which he kept on the employer's premises. Dissatisfied with claimant's explanation of this, the employer asked him to take a polygraph test. The claimant initially agreed but later Changed his mind and refused, as he bad on prior occasions. Although he was not formally discharged, it was made clear to him that he would not be allowed to return to work if he did not take the test. When he continued to refuse to do so, he was told to take home his toolbox. At no time was the claimant accused by the employer of stealing.

Opinion: On the evidence, claimant was discharged for refusing to take a Polygraph test. His refusal did not constitute misconduct, as an employee is justified in refusing to take a polygraph test, even where he has agreed to do so as a condition of his employment (AB 27,442; AB 168,381). There was no evidence that claimant had done anything which could be deemed misconduct (see Matter of Fermaglich, 41 AD 2d 70). Accordingly, his loss of employment was under non-disqualifying conditions.

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

The decision of the referee is reversed. (August 9, 1976)

COMMENTS

1. The polygraph, popularly known as "lie-detector", has been adopted by some business establishments seeking to control employee dishonesty. By recording changes in a subject's blood pressure and pulse rate as he answers questions, this device is supposed to show when he is lying. However, the test is generally considered not infallible, since some people can lie without any appreciable physiological changes being recorded, while others may give truthful answers while causing the indicators to oscillate vigorously. Not surprisingly, the results of polygraph testing are not admissible as evidence in court.

2. In the two Appeal Board cases cited in this decision, benefits were, allowed to claimants (a cashier in A.B. 127,442 and a security guard in A.B. 168,381) who were discharged for refusing to take a polygraph test. The cashier's case is of special interest because at time of hire she had signed an agreement to submit to such a test if and when required, thus making it a condition of her employment. In effect it was contended that claimant had waived her rights. The Board rejected that argument, stating that the condition was unreasonable and claimant was justified in refusing to adhere to it. The decision was reported in release A-750-1648, and, though the rule was later removed from the Interpretation Service, a re-reading of the Boards opinion in that case is recommended for the insight it provides.

3. Matter of Fermaglich (unreported), also cited, concerned a postal clerk discharged without a hearing during his probationary period for alleged theft of mail. His indictment having been dismissed by a Federal court, the Appellate Division held there was insufficient evidence to support a disqualification for misconduct.




A-750-1824
Index 1525-B1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

October 5, 1976

Interpretation Service -Benefit Claims
MISREPRESENTATION
Insurance booklet alteration

Appeal Board Decision 225,570

REPORTING TIME

Changing the reporting time indicated on en insurance booklet is wilful misrepresentation to obtain benefits.

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

Appealed by: Industrial Commissioner

Findings of fact: The claimant changed the reporting time written on his booklet which was always in his possession, from 1:15 P.M. to 1:45 P.M. to read 9:15 A.M. to 9:45.

Opinion: The credible evidence establishes that the claimant changed the reporting time on his booklet. By so doing the claimant committed a wilful misrepresentation for which a penalty of four effective days was correctly imposed. We reject as incredible the claimant's testimony denying that he made the change on his reporting booklet because the booklet was always in his possession. The claimant's proper reporting time under the procedures followed by the local office was 1:15 PM. to 1:45 P.M. No one at the local office would have given him another reporting time as such would have been contrary to the local office procedure. Therefore, the claimant must have changed the reporting time himself.

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

The decision of the referee is reversed. (September 14, 1976)

COMMENTS

1. The instant decision concerns the time assigned for reporting to the insurance office. The Appeal Board has also upheld the imposition of a forfeit penalty of four effective days for changing the time entered in the booklet insert for reporting to the employment office. (A.B. 156,784; not reported).

2. The penalty for alteration of an employment service reporting date, including the insertion of a new, false date, is eight effective days if the offense did not result in an overpayment, and twelve effective days if the offense resulted in an overpayment. (See Special Bulletin A-710-21)




A-750-1827
Index 115OC-8
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

February 11, 1977

Interpretation Service-Benefit Claims
MISCONDUCT
Theft and mishandling of funds

Appeal Board Decision 235,415

UNPAID TAXES

A corporate officer and stockholder who lost his employment when the corporation is closed by the Internal Revenue Service in an attempt to collect unpaid social security and income taxes withheld from the wages paid to its employees, is not subject to disqualification for misconduct when the money was appropriated not for his personal use but for operating expenses to forestall bankruptcy.

Referee decision: The initial determination of the local office disqualifying claimant from receiving benefits effective July 20, 1976, because he lost his employment through misconduct in connection therewith, is sustained.

Appealed by: Claimant

Findings of fact: The claimant, a restaurant manager, worked for a restaurant owned and operated by a corporation of which he was president and owner of 75 per cent of the outstanding stock. His wife owned the remaining shares. He ran the restaurant for approximately 20 years until July 19, 1976. In the latter part of the period, operating expenses increased and business fell off drastically. In order to continue the business, claimant used sums withheld for social security and income taxes for operating expenses instead of paying them to the Internal Revenue Service. The restaurant was closed by the Internal Revenue Service in an attempt to collect unpaid social security and income tax withholding amounting to about $14,000.

Opinion: The evidence establishes that the default in the payment of corporate obligations was due, not to any wilful act on the part of the claimant, but rather to his efforts to continue the business despite the drastic fall-off in business and increase in operating expenses. Claimant's attempt to keep his corporation in business under these circumstances, though perhaps ill advised, cannot be said to have constituted misconduct (see Appeal Board Nos. 228,722A; 229,316A; see also Matter of Steinberg, 27 AD 2d 581, reversing Appeal Board No.116,197).

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

The decision of the referee is reversed. (December 27, 1976)

COMMENTS

1. A.B. 228,722A and A.B. 229,316A, cited in the instant case, concerned two brothers, sole officers and stockholders in a corporation manufacturing clothing, who also lost their employment due to IRS seizure of the assets of the business in satisfaction of unpaid withholding and social security taxes. The Appeal Board overruled determinations of misconduct, on the ground that the failure to pay the taxes stemmed from a prolonged attempt to keep the business solvent. Matter of Steinberg, also cited, is reported at A-750-1663.

2. The principle of the instant case has recently been applied by the Board to the case of two officers and stockholders of a corporation operating a restaurant, who were forced to close the business when a lien was placed by the State of New York on the corporate bank account because of arrears in the payment of State sales taxes. Finding that the business had been suffering from financial difficulties, the Board overruled determinations of misconduct. (A.B. 229,008A; 229,009).




A-750-1829
Index 1512-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

April 5, 1977

Interpretation Service -Benefit Claims
MISREPRESENATION
Base period weeks and wages

Appeal Board Case 235,204

BASE PERIOD EARNINGS

Claimant's overstatement of his base period earnings, resulting in assignment of a benefit rate of more than twice the correct rate, was a wilful false statement to obtain benefits.

Referee decision: The initial determination of the local office holding that the claimant made a wilful false statement to obtain benefits by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of his future benefit rights, is overruled.

Appealed by: Industrial Commissioner

Findings of fact: The claimant filed an original claim for benefits effective August 12, 1974 and, thereby, established a base period from August 13, 1973 through August 11, 1974. The claimant, worked part-time for most of the base period. He worked full-time for about two months after the close of school in the Spring of 1974. When the local office was unable to obtain confirmation from the employer because claimant had not furnished the correct name the claimant submitted pay stubs reflecting only his full-time employment. The claimant signed a form certifying that his base period earnings were $10,500. This form advised the signer that the law provided severe penalties for wilful false statements to obtain benefits. Based on this information, the claimant's base period earnings were calculated to be $10,500. In fact, they were approximately $4,200.

Opinion: The evidence establishes that the claimant certified that he had earned approximately $6,000 more in his base period than he actually did. The claimant is accountable for the information which he submitted. He was aware that he had not earned $10,500 in his base period. Accordingly, we hold that his certification as to his base period earnings was a wilful false statement made to obtain benefits.

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

There having been no appeal therefrom, that portion of the referee's decision which sustained the initial determinations holding the claimant's benefit rate to be $40 and charging him with an overpayment of $1,127.50, ruled to be recoverable, remains in effect.

The decision of the referee, insofar as appealed from, is reversed. (February 16, 1977).

COMMENTS

  1. In this case claimant deliberately overstated his base period earnings and thus his average weekly wage. In A.B. 159,049, not reported, claimant achieved a similar result by submitting his weeks of employment as an actor but omitting weeks of employment as a clerk. The Appeal Board found that claimant wilfully misrepresented by deliberately concealing his clerical employment, either to avoid being required to seek or accept clerical work or to increase his benefit rate.

  2. Care should be taken in these cases to distinguish between false statements deliberately made to achieve entitlement or a higher benefit rate, and honest errors resulting from incomplete records and faulty memory. Only the former, wilful, false statements justify imposition of a forfeit penalty.




Serial A-750-1831
Index 1460C-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 14, 1977

Interpretation Service - Benefit Claim
TOTAL UNEMPLOYMENT
Discharge-related payments

COURT OF APPEALS DECISION

Matter of Isidore Berger

LIQUIDATION OF LEAVE CREDITS

An employee of the City of New York is not totally unemployed during the period prior to effective date of retirement in which he is kept on the payroll to liquidate annual leave and terminal leave credits.

APPEAL BOARD DECISION

The Industrial Commissioner appeals from the decision of the referee filed May 5, 1975 overruling the initial determination of the local office holding the claimant, filing under the Special Unemployment Assistance Program, ineligible to receive benefits effective March 10, 1975 because he was not totally unemployed.

Findings of fact: The claimant worked for the City of New York for forty-four years and last worked as an active employee on March 7, 1975. After that date he was on terminal leave for the purpose of exhausting all of his accumulated leave prior to his mandatory retirement. When he exhausted all accrued leave time, the claimant would be eligible to receive his pension, beginning January 1, 1976. While on terminal leave claimant remained on the payroll and received his usual pay checks on the regularly scheduled pay days, with the usual payroll deductions.

Opinion: Although the claimant did not perform any services for his employer after March 7, 1975, he continued on the payroll and received his regular pay and benefits thereafter. The employer-employee relationship was to continue until claimant exhausted all of his leave credits. Under these circumstances, the claimant is not totally unemployed Matter of Blitz (302 N.Y. 573).

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

APPELLATE DIVISION DECISION

(The decision of the Appeal Board was modified to hold claimant not totally unemployed from March 10, 1975 to May 9, 1975 while liquidating annual leave but totally unemployed after May 9, 1975 while liquidating terminal leave. That decision was appealed by the Industrial Commissioner to the Court of Appeals)

COURT OF APPEALS DECISION

Order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated. The Board's determination that the employer-employee relationship continued until the claimant exhausted all of his leave credits was rational and should not be disturbed (Matter of Fisher v. Levine, 36 NY 2d 146, 150, 153) (May 3, 1977).

COMMENTS

1. In this case, claimant was on annual leave to May 9, 1975 and thereafter on terminal leave prior to mandatory retirement beginning January 1, 1976. Terminal leave payment to an employee of the City of New York. is calculated according to a formula which takes into account the amount of unused sick leave credits and the number of years of service.

2. It is an established principle that a state employee carried on the payroll in order to liquidate accumulated leave time (annual, personal and overtime) is not totally unemployed during such period (A-750-1635). The same rule applies to a federal employee, if the federal agency finds that he is not separated from federal service until such leave is liquidated. Although the federal agency may refer to the leave as "terminal leave", it represents in reality leave time such as is accumulated and paid to a terminated state employee and not the additionally calculated money such as was paid to the city government employee in the present case. (A-750-1608)




A-750-1833
Index 1127-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

August 8, 1977

Interpretation Service - Benefit Claims
MISCONDUCT
Violation of company rule

Appeal Board Decision 244.165

REFUSAL TO CUT HAIR

Refusal to comply with employer's rule limiting hair length is misconduct, if at time of hire the rule was made a condition of employment (Uniformed guard).

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 8, 1976 because he lost his employment through misconduct in connection therewith, is overruled.

Appealed by: Employer

Findings of fact: Claimant, a security officer, was employed by a protection company for over two years until he was discharged on October 7, 1976. The employer has a rule that uniformed security guards' hair not go over the collar of their shirts. Claimant was aware of this and had complied with the rule from his time of hire. On or about October 1, 1976, claimant was ordered by his supervisor to cut his hair to comply with the rule, or be fired. Claimant refused to comply and was discharged, effective October 7, 1976. He received $330 in benefits after filing his claim.

Opinion: The evidence establishes that claimant refused to comply with the employer's rule regulating hair length for uniformed security guards. In so refusing, claimant was insubordinate. Accordingly, he lost his employment through misconduct in connection therewith. He was overpaid the benefits he received, but the overpayment has been ruled not to be recoverable.

Decision: The initial determination of the local office is sustained. The decision of the referee is reversed. (June 22, 1977)

COMMENTS

  1. Some years ago the Appeal Board considered the case of an architectural draftsman who was discharged for refusing to comply with the employer's order to have his hair cut shorter. The Board overruled a disqualification, noting that claimant's hair was neat and there were no complaints from the employer's clients with whom claimant was in contact. (A.B. 135,934; not reported). The instant case is distinguishable by the existence of a company rule which at time of hire was made a condition of employment. Claimant breached that condition.

  2. On the other hand a disqualification may be in order even without an agreement at time of hire. For example, benefits were denied when a, television repairman was discharged for refusing to cut his hair after customers complained, and when a food service worker chose to quit after his employer for hygienic reasons ordered him to get a haircut or wear a hairnet. (A.B. 147,553 and A.B. 181,343; not reported).




A-750-1835
Index 1180-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

August 9, 1977

Interpretation Service - Benefit claims
MISCONDUCT
Union relations

Appeal Board Decision 240.026

LOSS OF UNION MEMBERSHIP

Claimant's refusal to continue to work as assistant foreman because the new union contract made such employees ineligible for union membership, was not misconduct, Since continuance would have interfered with his retaining membership in a labor organization. (unemployment Insurance Law, Section 593.2(a))

Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective September 13, 1976 without any disqualifying conditions, is overruled. The employer's objection to the payment of benefits because effective September 9, 1976 claimant lost his employment through misconduct in connection therewith, is sustained.

Appealed by: Claimant

Findings of fact The claimant had been employed by a fixture manufacturing company for about 17 years. For about the last year and a half, he served as an assistant foreman. In May, 1976, the union and the employer entered into a new contract. Under the contract, assistant foremen were included in the group of supervisors who were ineligible for membership in the union. Prior to this time, the claimant had been a member of the union. He was unaware of the new contract's effect on his membership. In August, 1976, the employer sent an internal memo to the union listing claimant and several other employees who were no longer in the bargaining unit. On September 9, 1976, the claimant was told that he was not eligible for union membership, while completing forms for hospitalization coverage. He objected that he wished to retain his union membership. That afternoon, officials of the employer met with the claimant and directed him to continue to work as an assistant foreman and not do the work of a welder. The claimant refused to serve as a supervisor and was discharged for that refusal.

Opinion: The evidence establishes that the claimant was an assistant foreman and, as (assistant) foreman, became ineligible for union membership effective in May, 1976. This was a substantial change in the terms and conditions of his employment. He was unaware of this change until September 9, 1976 at which time he elected to maintain his union membership. The employer's refusal to honor claimant's election would constitute good cause to quit the employment (Section 593.1(a) of the Law) since circumstances had developed which would have justified a refusal of such employment in the first instance, namely interference with joining or retaining membership in any labor organization (Section 593.2(a) of the Law). In view of the foregoing, the claimant's refusal to do supervisory work does not constitute insubordination and therefore is not misconduct. Although the union bad agreed that the claimant should no longer be a member by accepting the new contract, the claimant is not bound by that action in view of the substantial change it made in his working conditions. We, therefore, find that the claimant's employment ended under non-disqualifying conditions.

Decision: The initial determination of the local office is sustained. The employer's objection is overruled.

The decision of the referee is reversed. (July 18, 1977)

COMMENTS

In this decision the Appeal Board noted that the employer's refusal to honor claimant's election to take a demotion in order to preserve his union member ship, would have given claimant good cause to quit.




A-750-1836
Index 1010-3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

August 22, 1977

Interpretation Service - Benefit Claims
HEARINGS AND APPEALS
Timeliness

Appeal Board Decision 241,070F

REVISED OR CORRECTED DETERMINATION

A timely protest of a determination revising or correcting an initial determination gives the referee jurisdiction on the merits, even though the protest is untimely with respect to the original determination, and even though the recipient is not newly aggrieved by the revised or corrected determination.

Referee decision: The Industrial Commissioner's preliminary objection that claimant's request for a hearing was untimely, is overruled. The initial determinations of the local office holding the claimant, a former Federal employee filing for unemployment compensation, under Chapter 85, Title 5 of the U.S. Code, ineligible to receive benefits effective April 18, 1976 because he was not totally unemployed and holding that claimant's rights to future benefits be reduced by 32 effective days, which was revised to 20 effective days, because of his wilful misrepresentations made to obtain benefits, is also overruled.

No appeal was taken from that part of the referee's decision which ruled that the initial determinations of the local office holding claimant ineligible to receive benefits effective March 18 to May 16, 1976 because he failed to comply with reporting requirements; charging him with an overpayment of $450 in benefits ruled to be recoverable; and holding that claimant's right to future benefits be reduced by 20 effective days because of his wilful misrepresentation, remain in effect because claimant failed to request a hearing thereon within the statutory period.

Appealed by: Industrial Commissioner

Findings of fact: On July 26, 1976, the insurance office issued two notices of initial determinations to the claimant. One notice contained initial determinations holding him ineligible to receive benefits effective April 18, 1976 because he was not totally unemployed and holding that his rights to future benefits be reduced by 32 effective days because of his wilful misrepresentations made to obtain benefits. The other notice contained initial determinations holding claimant ineligible to receive benefits effective March 18 to May 16, 1976 because he failed to comply with reporting requirements; charging him with a recoverable overpayment of $450; and holding that his future benefit rights be reduced by 20 effective days because he made wilful false statements to obtain benefits. Claimant did not protest any of these rulings until November 30, 1976.

On December 13, 1976 the local office issued a correction of the initial determination reducing the forfeit penalty imposed in connection with the ruling on lack of total unemployment from 32 to 20 effective days of future benefits. Claimant worked in a pizza store from April 18 to May 16, 1976. Each week after April 18 and through May 16, 1976, claimant certified that he did no work during the week for which he claimed benefits.

Opinion: The first issue to be resolved on this appeal is the effect of the corrected notice of determination issued by the local office on December 13, 1976. We do not agree with the contention of the Industrial Commissioner that such correction did not extend the time within which the claimant could protest the corrected initial determination and request a hearing. The Court has ruled that where a local office issued a notice containing a correction of claimant's social security number, the claimant's protest of the initial determination contained therein, within 30 days of the corrected notice, was timely (Matter of Hirsch, 24 AD 2nd 919, rev'g Appeal Board 96,461).

Since the decision in Hirsch (1965) the Board has considered cases in which corrected determinations have been issued by the local office and has ruled that protest of such corrections is timely if made within 30 days thereafter (Appeal Board # 230,183A; 224,257; 202,094). Accordingly, we conclude that claimant's protest of the initial determinations here in issue was timely with respect to the corrected notice dated December 13, 1976 and that the referee had jurisdiction to consider the merits of the initial determinations holding claimant ineligible to receive benefits effective April 18, 1976, because he was not totally unemployed and imposing the revised forfeit penalty for claimant's wilful misrepresentations made to obtain benefits.

The evidence establishes that in response to an inquiry by the local office as to why claimant did not report to the unemployment service on March 18, 1976, among other things, claimant stated that he had found a job at a pizza store and started to work there on April 20, 1976. That employer reported that claimant had started to work on April 18 and continued to work, to May 16, 1976. Claimant's own statement, made prior to the issuance of these initial determinations is more credible than his testimony that he did not work at the pizza establishment. In view thereof we conclude that claimant was not totally unemployed during said period, and his weekly certifications that he had done no work during said period constitute wilful false statements made to obtain benefits, requiring him to forfeit 20 effective days of his future benefits.

Decision: The Industrial Commissioner's preliminary objection that claimant did not make a timely request for a hearing on the initial determinations holding him ineligible to receive benefits effective April 18, 1976 because he was not totally unemployed and the revised initial determination imposing a forfeit penalty of 20 effective days because he wilfuly made false statements to obtain benefits is overruled.

The initial determination of the local office holding the claimant ineligible to receive benefits effective April 18, 1976 because he was not totally unemployed and the revised initial determination holding that claimant wilfully made false statements to obtain benefits by reason of which a forfeiture of 20 effective days was imposed as a penalty in reduction of his future benefit, rights are sustained.

The decision of the referee, insofar as appealed from, is reversed. (May 6, 1977).

COMMENTS

This decision reverses previous principles. It may be noted that the correction notice was issued long after the expiration of the appeal period, informed the claimant that it "does not extend the period during which a hearing may be requested", and made no changes other than to reduce the forfeit penalty. Nevertheless, the Appeal Board held that claimant's protest, made four months after the original determination but two weeks before the correction notice, was timely.




A-750-1837
Index 1430-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 15, 1977

Interpretation Service - Benefit Claims
TOTAL UNEMPLOYMENT
Corporate officers

APPELLATE DIVISION DECISION

Matter of Frank P. DeVivo

SLACK PERIOD

A corporate officer-stockholder is not totally unemployed during a slack period when operations are not fully suspended and the work is arbitrarily allocated to another employee.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 17, 1975, which affirmed the decision of a Referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from benefits on the ground that he was not totally unemployed.

Claimant, a carpenter, was last employed by a family corporation of which he is the vice-president and treasurer and owns 40% of the stock. Claimant's wife, son and daughter-in-law are the other officers and stockholders. The corporation is in the home construction business, with its office located in claimant's home. The record reveals that business was slow, and, although the son, also a carpenter, continued to work for the corporation, claimant was discharged for lack of work. The board determined that claimant was not totally unemployed.

On this appeal claimant urges that because he has received no benefits from the corporation and has participated in no corporate activities since he was laid off, he was totally unemployed during the period involved and should not be denied benefits. What constitutes total unemployment is a factual issue for the board. (Matter of Newman [Catherwood], 24 AD 2d 1042) While claimant may have had no responsibilities in the corporation's going business and disassociated himself completely therefrom, he, nevertheless, stood to gain financially from its continuing operation. Under the circumstances, the board could find that claimant lacked total unemployment. (Cf. Matter of Lieberman [Catherwood], 20 AD 2d 835). Its determination is supported by substantial evidence and must, therefore, be affirmed. Decision affirmed, without costs. (January 15, 1976)

COMMENTS

1. It is an established principle that even when operations are fully suspended because of a slack period, weather, fire or other reason, a corporate officer is not totally unemployed if he receives, remuneration, or if he renders services to the corporation such as soliciting orders, preparing for resumption of operations, or performing other peripheral activities in connection with the business. (A-750-1419)




A-750-1838
Index 1105A-4
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 26, 1977

Interpretation Service - Benefit Claims
MISCONDUCT
Evidence required

APPELLATE DIVISION DECISION

Matter of James Corbett

DISCHARGE OF GOVERNMENT EMPLOYEE

Facts established at a hearing authorized by law for review of the discharge of a permanent civil service employee, are binding on the Unemployment Insurance Appeal Board.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 28, 1976, which affirmed the decision of a Referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits under the Special Unemployment Assistance Program effective May 3, 1975 because he lost his employment through misconduct In connection therewith.

The board's determination that claimant was guilty of disqualifying misconduct in that he threatened two coworkers with bodily harm, interfered with the orderly routine of the office and was insubordinate, was based on a decision of the Civil Service Commission, affirmed by the Civil Service Commissioner, that claimant committed such acts of misconduct on April 30, 1975. Such findings of the Civil Service Commission, as affirmed were binding on the Unemployment Insurance Appeal Board (Matter of Maher [Levine] 40 A D 2d 1080).

Decision affirmed, without costs. (May 26, 1977)

COMMENTS

  1. The rule of this release applies to discharges and suspensions of permanent civil service employees - federal, state, county, city, school district, etc.

  2. Claimant in this case worked as a clerk for the New York City Department of Social Services and was discharged after a hearing conducted in accordance with Section 75 of the New York State Civil Service Law.

  3. Matter of Maher, 1972, cited by the court, concerned a clerk employed by the New York State workmen's Compensation Board who was discharged for insubordination after a hearing, also conducted under Section 75.

  4. Similarly, the Appeal Board has held that it was bound by the findings of fact of a school board concerning the discharge of a teacher after a disciplinary hearing conducted pursuant to Section 3020A of the New York State Education Law (A.B. 228,860; not reported)

  5. It should be borne in mind that although in these cases the Division is bound by the facts established at a disciplinary hearing, the claims examiner is responsible for determining whether such facts are disqualifying for unemployment insurance purposes.




A-750-1839
Index 1305B-6
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 27, 1977

Interpretation Service - Benefit Claims
INDUSTRIAL CONTROVERSY
Termination of suspension

Appeal Board Decision 249,303

RETURN TO WORK DURING STRIKE

Suspension of benefits because of industrial controversy is not terminated by claimant's return to work for the employer while the controversy continues.

Referee decision: The initial determination of the local office suspending the accumulation of benefit rights by the claimant, effective March 29 through May 16, 1977, on the ground that he lost his employment because of an industrial controversy in the establishment in which he was employed, is modified to be effective March 29 (inadvertently stated by the referee to be March 28) through April 21, 1977.

Appealed by: Industrial Commissioner

Findings of fact: The claimant worked as an operating engineer at a construction site until March 28, 1977. He was prevented from working thereafter because of a lack of material caused by an industrial controversy between a teamster local and the employer. The industrial controversy was not ended when the claimant was recalled by the employer on April 22, 1977, to work at a different job site or when he subsequently worked at the new job site on May 9, May 10 and May 13.

Opinion: The evidence establishes that the claimant lost his employment on March 28, 1977 because of an industrial controversy in the establishment in which he was employed and that he subsequently worked for the employer elsewhere while the industrial controversy continued. Subdivision three of Section 592 of the Law provides that the suspension of the accumulation of benefit rights because of an industrial controversy shall not be terminated by the subsequent employment of a claimant while the industrial controversy continues (see A.B. 67,394). Accordingly, the claimant was subject to a suspension of the accumulation of his benefit rights throughout the period prescribed by the Law, regardless of the fact that he was subsequently reemployed by the employer prior to the expiration of the suspension period.

Decision: The initial determination of the local office suspending the accumulation of benefit rights by the claimant, effective March 29 through May 16, 1977 on the ground that he lost his employment because of an industrial controversy in the establishment in which he was employed is sustained.

The decision of the referee, insofar as appealed from is overruled. (September 1, 1977)

COMMENTS

1. Under Section 592 of the Law, a seven-week suspension for loss of employment due to an industrial controversy in claimant's establishment may be terminated only by termination of the controversy.

2. A.B. 67,394, cited in the instant decision, concerned garment cutters who walked off the job in sympathy with a strike of spongers against their employer, shortly thereafter returned to work for a few days to complete the work on hand, and were laid off. The Appeal Board held that since the strike of spongers had not terminated, claimants were ineligible for 49 days from their original stoppage of work.

3. In both the instant and the above-cited case, claimants' return to work while the industrial controversy continued, did not extend the suspension period. These cases are distinguishable from situations where employees out on strike returned to work due to a temporary suspension of the strike. When the strike was resumed, the original seven-week suspension period was extended by the number of days claimants had worked during the "truce" (A-750-1312).




A-750-1840
Index 1695-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

October 6, 1977

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Pregnancy

Appeal Board Decision 246,566

CLAIM BEFORE CHILDBIRTH

A claimant who, solely because of pregnancy, voluntarily leaves employment not harmful to her health, is subject to disqualification for voluntary quit upon filing before childbirth, since such filing negates any intent to withdraw from the labor market.

Referee decision: The revised initial determination of the local office holding the claimant eligible to receive benefits effective August 2, 1976 without any disqualifying conditions, is sustained.

Appealed by: Employer

Findings of fact: The claimant worked for a manufacturer as a secretary from June 25, 1975 until July 30, 1976. She requested and was granted a maternity leave from August 2, 1976 until February 1, 1977. She filed a claim for benefits effective August 2, 1976. She was capable of working and wasn't advised by a doctor to leave her job. The employer had continuing work. available for her. It did not require her to take a leave of absence because of pregnancy.

Opinion: The evidence establishes that the claimant left her job while continuing work was available for her. Her immediate filing of her claim for benefits negated any intent to withdraw from the labor market because of pregnancy. Absent such intent, her taking leave was for a personal reason which is not compelling under the Law. Accordingly, we hold that she voluntarily left her employment without good cause.

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

The employer's objection is sustained. The claimant is disqualified from receiving benefits effective July 31, 1976 because she voluntarily left her employment without good cause. This disqualification remains in effect until she has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and the remuneration therefrom will not count.

The decision of the referee is reversed. (July 21, 1977)

COMMENTS

1. In this case the Appeal Board noted that claimant's employer did not require, and her doctor did not advise that she stop work. The Board held that a disqualification for voluntary quit applied even though claimant had requested and was granted a maternity leave.




A-750-1841
Index 1110-8
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

October 18, 1977

Interpretation Service - Benefit Claims
MISCONDUCT
Absence and lateness

Appeal Board Decision 247,934

REDUCTION IN FORCE

When an employer decides to reduce his work force and selects claimant because of a poor attendance record, the separation is not due to misconduct.

Referee decision: The initial determination of the local office disqualifying claimant from receiving benefits effective February 5, 1977 because she lost her employment through misconduct in connection therewith, is sustained. The overpayment of $165 in benefits is non-recoverable.

Appealed by: Claimant

Findings of fact: Claimant was employed as an assembly line worker from April 30, 1973 to April 3,1975. During this period of employment, she was absent on numerous occasions and was warned regarding her absences. She was rehired on March 8, 1976 because she was a good worker but she was again absent on a number of occasions. She was absent on February 7, 1977 because of car trouble and called in her absence. Subsequently, she was ill on February 8,9 and 10 and called in her absence on February 10. On February 11, a telegram was sent to her by the employer which stated: "Due to a reduced work schedule we find it necessary to terminate effective Friday 2/11/77." Claimant and others were discharged when the employer reduced the work force because of a reduced work schedule.

Opinion: The credible evidence establishes that the claimant was discharged because of the necessity to reduce the work force as a result of a reduction in the work schedule. Claimant was chosen as one of those to be let go because of her poor attendance record. She was not discharged because of any particular incident or as a result of her last absence. While it is the prerogative of the employer to discharge an employee for any reason deemed appropriate, this cannot deprive a claimant of benefits by the expedient of labeling the discharge as being for misconduct, when the actual reason for the discharge was a layoff of workers due to a reduction of the work force. Under these circumstances, claimant's employment ended under non-disqualifying conditions.

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

The decision of the referee is reversed. (September 6, 1977)

COMMENT

If an employer reports claimant was discharged for poor attendance and claimant contends the true reason was lack of work, it may be pertinent in attempting to resolve the conflict to ascertain, among other facts, whether the claimant was replaced.




A-750-1842
Index 1715-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 6, 1977

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
School or training course

APPELLATE DIVISION DECISION

Matter of Michael J. Manning

STUDENT: QUIT OF SUMMER JOB

Leaving full-time employment to return to school in the fall is without good cause even though claimant customarily worked part time during the school year.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 11, 1977, which affirmed the decision of a Referee overruling the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits because he voluntarily left his employment without good cause.

Claimant was a full-time college student during the 1975-1976 academic year during which he also worked part-time as a machine operator. At the end of the school year in June, 1976, claimant obtained full-time employment as a coding clerk with the employer herein. When the school year resumed in the fall, claimant requested part-time work, but the employer refused to change the work schedule. Claimant then left his employment to return to school on a full-time basis and to seek part-time work.

The board found that the claimant was a part-time worker during the months he was attending college and the fact that he had worked full-time during the summer when he was not in college did not cause him to lose his status as a part-time worker. Such action did not constitute leaving summer job without good cause. Therefore, it was concluded that claimant's employment terminated under non-disqualifying conditions. We disagree.

This court has consistently held that leaving employment that is available in order to attend school does not constitute good cause under the Unemployment Insurance Law. When the employer refused to give the claimant part-time work so that he could attend school on a full-time basis, claimant's termination of his employment was for personal and non-compelling reasons, disqualifying him from receiving benefits (Matter of Christophe [Levine], 50 A D 2nd 705; Matter of Schifferle [Catherwood, 33 A D 2nd 847).

Decision reversed, and matter remitted for further proceedings not inconsistent herewith, with costs. (October 27, 1977)

COMMENTS

  1. The instant decision confirms the general principle that leaving employment to attend school or training, vocational or non-vocational, is without good cause. However, there are exceptions to the principle, as noted below.

  2. The Appeal Board has held that when a claimant, after applying to a training facility for admission to vocational training, obtains employment intending to work until the training starts, good cause exists for leaving that employment to commence the course, provided the training meets the conditions for approval set forth in Section 599. The Board described such work as "stop-gap" employment. (A-750-1750) The same would apply to a quit of summer employment to return to vocational training which is approvable under Section 599.

  3. The Appeal Board has also indicated that good cause exists when a claimant leaves employment to attend vocational training conducted under union-management sponsorship, arranged because the occupation is threatened with obsolescence, or because refresher training is needed due to new technological developments. Thus, it held that there was a quit with good cause when a seaman secured a leave of absence to attend a 17-week course for deck engine mechanic and when a ship's radio operator left for four weeks training on maintenance of electronic equipment. (A.B. 151,659 and 141,956; not reported)




A-750-1843
Index 910-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 8, 1977

Interpretation Service - Benefit Claims
DETERMINATION OF BENEFITS
Base period earnings and employment

Appeal Board Decision 248,834A

PAID SICK LEAVE

A payment made under a plan or system established by an employer for his employees on account of sickness or disability is not remuneration, and a week covered by such payment is not a week of employment when no services are performed during such week.

Referee decision: The initial determination of the local office assigning claimant a gross benefit rate of $51 a week, is sustained. The initial determination of the local office reducing claimant's benefit rate from $51 to $30 pursuant to Section 600 of the Law, is overruled.

Appealed by: Claimant and Industrial Commissioner

Findings of fact: The claimant was employed for 25 years by a large department store chain until she was mandatorily retired on January 31, 1976. She filed an original claim for benefits effective February 2, 1976, thereby establishing a base period from February 3, 1975 through February 1, 1976. During her base period, claimant worked for the employer in 28 weeks and was credited with 28 weeks of employment and remuneration of $3,470.40. For 20 more weeks of her base period, claimant was absent from work while recuperating from injuries she suffered when she was assaulted in an off-the-job incident. During this period, she received $316.89 in benefits under the Disability Benefits Law and supplemental payments of $1,996.71 in illness pay paid directly by the employer pursuant to a plan applicable to its employees, generally. These benefits were deemed not to constitute remuneration and she was credited with 48 weeks of employment and remuneration of $3,470.40 and her benefit rate was computed at $51.

The employer had established a Savings and Profit Sharing Fund (1) to permit employees to share in the employer's profits; (2) to encourage the habit of savings; and (3) to provide a plan through which employees might accumulate money as a means of providing an income for themselves at the close of their active business careers. The Fund is voluntary and open to all full-time and regular part-time employees. The employee contributes five percent of his salary, up to $750 per year. The employer contributes a percentage of its net profit in cash and in shares of its stock. A participant must withdraw all of his allotted share when his employment ends, whether due to resignation or retirement.

During the course of her employment, the claimant contributed $4,393.96 to the Profit Sharing Fund. The employer's contribution was valued at $8,442.66. At the time of her retirement, the claimant applied for complete withdrawal from the plan and elected to receive her share in cash and in stock, rather than an annuity. As a result of investments by the Fund and of interest on its assets, the claimant received $6,704.84 in cash and 300 shares of stock which had a market value of $20,812.50 on January 31, 1976, the date of her retirement. The distribution of the cash and stock as a lump sum payment to the claimant amounted to $27,517.34. Based on claimant's age and actuarial tables, the value of claimant's straight lifetime annuity would amount to $42 a week.

The claimant received six benefit payments at the rate of $51 a week.

Opinion: Regulation 2(g) (12 NYCRR 470.2(g)) issued by the Industrial Commissioner to implement Section 524 of the Law provides that a "week of employment" includes any statutory week during any part of which an employee is "on paid vacation or other paid leave of absence even though no actual work is performed ".

Subdivision 2(a) of Section 517 of the Labor Law provides in part that "remuneration does not include any payment made to. ..any employee. ..under a plan or system established by an employer. ..including any amount paid by an employer for insurance ...or into a fund, to provide for any such payment, on account of. .. sickness or accidental disability, ..." Since, under Section 517.2(a), the illness pay and disability benefits received by claimant pursuant to a plan are not included as remuneration, we conclude that claimant was not on a "paid leave of absence" within Regulation 2(a) while receiving them and, therefore, the weeks for which claimant received such benefits did not constitute "weeks of employment" within the Regulation. A.B. 195,292. Matter of Carpenter, 35 AD 2nd 900, does not require a different result because the Court did not there find that there was a plan under which the benefits received by claimant would be excluded as remuneration.

Accordingly, the evidence establishes that during claimant's base period she had 28 weeks of employment with remuneration of $3,470.40 and her benefit rate is $62 per week.

The evidence further establishes that the claimant received a lump sum payment from the Savings and Profit Sharing Fund due to her retirement. That payment is, therefore pension or retirement payment within the meaning of Section 600 of the law, since she applied for it after she had been retired (Matter of Lipsky, 44 AD 2nd 85). Since the employer contributed more than half but less than the total amount of the plan, the claimant's benefit rate is to be reduced by up to one-half of the weekly pro-rated amount under the Fund. See Appeal Board #228,098.

As the actuarial value of the payment received by the claimant is $42 a week, her benefit rate is reduced by $21 a week and is therefore $41. Hence, the claimant received an overpayment of $10 for each of the six weeks she received benefits. Therefore, the, overpayment was $60 and such overpayment is recoverable under Section 600.5 and 597.3 of the Law, as a retroactive payment of remuneration.

Decision: The decision of the Board filed May 5, 1977 (Appeal Board 231,682) is hereby rescinded.

The initial determination of the local office holding that effective February 8, 1976, claimant's benefit rate was $51 and subject to reduction of $21 pursuant to Section 600 of the Law is modified to establish claimant's benefit rate at $62 subject to a reduction of $21 and, as so modified, is sustained.

The initial determination of the local office charging claimant with an overpayment of $126 in benefits, ruled to be recoverable is modified to be a recoverable overpayment of $60 and, as so modified, is sustained.

The decision of the referee is modified accordingly and, as so modified, is affirmed. (October 20, 1971)

COMMENTS

1. This is a precedent decision on the question of sick leave and weeks of employment. Subdivision 2(a) of Section 517 of the Unemployment Insurance Law excludes from the definition of remuneration any payment made under a plan or system established by an employer for his employees on account of sickness or disability. Heretofore a claimant on paid sick leave was credited with weeks of employment but no remuneration. The effect of the instant decision is that generally a claimant who was on paid sick leave cannot be credited with either weeks of employment or remuneration. An exception would apply when the payments are made not under a plan for employees generally but specifically for the individual concerned. In such case the payments are in the nature of wages and claimant may receive credit for both weeks of employment and remuneration, far up to six months following the last month in which the employee worked. (Subdivision 2(d) of Section 517).

2. Section 524 of the Unemployment Insurance Law states that a week of employment means a week in which a claimant did some work in employment. The Industrial Commissioner's Regulation 2(g) expands that definition to include any week during any part of which an employee is on paid vacation or other paid leave of absence even though no actual work is performed. In such case a claimant would receive credit for both weeks of employment and remuneration. By the instant decision the Appeal Board has in effect removed sickness and disability leaves for employees generally, from the definition of "paid leave of absence".




A-750-1844
Index 1460F-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 29, 1977

Interpretation Service - Benefit Claims
TOTAL UNEMPLOYMENT
Other employer payments

APPELLATE DIVISION DECISIONS

Matter of Sharon Jacobs

Matter of Elaine M. Shafonda

COMPENSATION ON ANNUAL BASIS

A professional or non-professional full-time employee of an educational institution, compensated on an annual basis, is not totally unemployed throughout the year, including the summer months and all other recess periods.

Matter of Sharon Jacobs

Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 26, 1977, which affirmed the decision of a Referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective June 28, 1976 through August 31, 1976 because she was not totally unemployed.

Claimant, a school teacher, was employed for a two-year period pursuant to the contract. The agreement provided that during each school year claimant was to be paid one-twelfth of her annual salary during the months of September through May but that at the end of June she was to receive three payments, one each for June, July and August. Claimant was not expected to perform any services during the summer months because the school was closed. At the end of June, 1976, claimant received payments for June, July and August. At about the same time, her contract having expired at the end of the 1976 school year, she was laid off. Claimant was found to be ineligible for benefits during July and August, 1976 because she was not totally unemployed.

A school teacher, compensated on an annual basis, cannot be considered totally unemployed during the summer months (Matter of Darwin [Catherwood], 30 AD 2d 996). Since the board's decision is supported by substantial evidence in the record, it must be affirmed (Matter of Bartlett [Catherwood], 32 A D 2d 591).

Decision affirmed, without costs. (July 21, 1977)

Matter of Elaine M. Shafonda

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 20, 1976 which affirmed the decision of a Referee sustaining the initial determination of the Industrial Commissioner holding claimant ineligible to receive benefits effective July 5, 1976 because she was not available for employment.

Claimant, a stenographer at a junior high school in Nassau County, was paid on an annual basis although she only worked 10 months a year. For six years prior to 1976 she did not work during July and August. After school closed in June, 1976, claimant went to California and made some efforts to obtain employment beginning in September, 1976. She was unsuccessful and her application for benefits commencing July 5, 1976 was denied on the ground she was unavailable for employment.

We see no distinction between claimant's position and that of a school teacher. Each is compensated on an annual basis and cannot be considered totally unemployed during the summer months (Matter of Darwin [Catherwood], 30 AD 2d 996; see Matter of Jacobs [Ross], __ AD __ [July 21, 1977]). Claimant recognized her employment status because in the few job applications made in California she insisted on 10-month employment. There is also substantial evidence in the record to support the board's determination that claimant's job efforts in California failed to satisfy availability requirements.

Decision affirmed, without costs. (August 4, 1977)

COMMENTS

  1. These decisions on school district employees, one a teacher, the other a stenographer, confirm an established principle that a person employed for a specified period at a specified total salary for that period, is not totally unemployed throughout such period.

  2. Appellate Division decision Matter of Darwin, 1968 (not reported), cited in both instant decisions, concerned a teacher in a State hospital employed on annual salary, who was held not totally unemployed during the months of July and August, even though he was not required to work during those months, and even though Civil Service Law provided for payment of his annual salary in 20 installments during his 10-month work year.

  3. The instant rule applies not only to a claimant whose employment continues from year to year, but also to one, as in Matter of Jacobs, whose employment contract is not renewed. It also applies to a claimant who is newly hired. Thus, a claimant who was hired in April 1964 as an associate professor at a specified annual salary to be paid in 12 monthly installments for the period from July 1, 1964 to June 30, 1965, was held not totally unemployed effective July 1, 1964 even though he was not required to perform any services until late September 1964. (A.B. 131,653; not reported). Similarly, a teacher in a private elementary school employed under a union contract running from September 1, 1973 to August 31, 1976 and providing for an annual salary to be paid in 20 installments during the 10-month school year, was held not totally unemployed effective September 1, 1974, even though she was not hired until September 6, 1974 and did not begin work until September 9, 1974. (A.B. 244,161; not reported).

  4. The instant rule applies only to full-time employees. A part-time college instructor whose employment contract specifies the dates of teaching sessions and the compensation therefor, is employed on such days and any other days on which he performs substantial services in connection therewith, but is totally unemployed on all other days during the contract period. (A-750-1820)




A-750-1845
Index 1215 B-9
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

January 5, 1978

Interpretation Service - Benefit Claims
REFUSAL OF EMPLOYMENT
Refusal, What constitutes

Appeal Board Decision 254,423

LATENESS ON FIRST DAY OF WORK

Reporting to work inordinately late for a non-compelling reason on the first day of a job is a refusal of employment without good cause when as a result the offer of employment is withdrawn and claimant is not put to work.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits, effective June 29, 1977, because without good cause he refused employment for which he is reasonably fitted by training and experience; and charging him with an overpayment of $63.75 ruled to be non-recoverable, is overruled.

Appealed by: Industrial Commissioner

Findings of fact: Claimant, a cutter in the garment industry, was referred by the employment service on June 28, 1977, to a job opening with a garment manufacturer. He reported to the employer, was interviewed and was hired at a salary of $250 a week. He was to report to start work the following day at 8:00 A.M. Claimant reported for work on June 29, between 9:30 and 10:00 A.M. The employer told the claimant that he would not be put to work, because he was unreliable as shown by his coming late on the first day of work. The claimant reported late because he did not set his watch to the correct time. Claimant was paid benefits of $63.75, thereafter.

Opinion: By claimant's reporting to work over one-and-a-half hours late on his first day of scheduled employment, he committed an act of discouraging the employer from hiring him. The act of the claimant in discouraging the employer from hiring him constitutes a refusal of employment without good cause. Claimant was overpaid in benefits but the benefits have been ruled not recoverable.

Decision: The initial determinations of the local office disqualifying the claimant from receiving benefits, effective June 29, 1977, because without good cause he refused employment for which he is reasonably fitted by training and experience and charging him with an overpayment of $63.75 in benefits, ruled not to be recoverable, are sustained.

The decision of the referee insofar as appealed from is reversed. (November 22, 1977)

COMMENTS

1. It is an established rule that statements made by a claimant calculated to discourage an offer of employment which would otherwise have been made, constitute a refusal of employment (Index 1215 B-1; A-750-1704). The instant decision indicates that the same conclusion may be reached when the claimant discourages hire by his actions rather than his words.

2. In a similar case an embroidery worker who was called to report for work the next morning, reported instead to the unemployment insurance office to certify for benefits for the preceding week, without telling the employer. When she reported to work three hours late she learned that she had been replaced. The Appeal Board upheld disqualification for refusal of employment, since claimant could have certified by mail. (A.B. 254,917; not reported)




A-750-1846
Index 1155-4
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

February 8, 1978

Interpretation Service - Benefit Claims
MISCONDUCT
Hours

Appeal Board Decision 250,698

TRAINING CLASSES AFTER HOURS

Refusal to attend employer's training classes after working hours unless compensated therefor, is not misconduct, when such attendance is not a part of the contract of hire and overtime pay is required by law in the occupation.

Referee decision: The initial determination of the local office holding the claimant eligible to receive benefits effective March 7, 1977, without any disqualifying conditions is overruled. The claimant is disqualified from receiving benefits effective March 5, 1971, because she lost her employment through misconduct in connection therewith.

Appealed by: Claimant

Findings of Fact: The claimant last worked for the employer, an insurance company, for a little more than three and one half years, the last year as a junior underwriter. The employer instituted classes for underwriters requiring them to stay one hour beyond the end of the working day without additional compensation on each of ten succeeding Mondays and to devote six to seven hours of her own time, away from the employer's premises, to study in connection with each session. Claimant refused to attend the classes even though she was told that she could not continue as an underwriter. Claimant tried unsuccessfully to get another job within the company. She was discharged on March 5, 1977.

Opinion. The claimant was under no obligation under the Law to work for an employer without assurance of compensation. We have previously held that this is so even though only one day is involved (Appeal Board #78,742, 76,137). The classes were clearly given for the employer's benefit. They were not a part of the contract of hire when claimant was appointed junior underwriter. She was not required under the Law to accede to the employer's request nor to continue as an underwriter. Claimant's refusal, therefore, was not misconduct. Accordingly, we conclude that claimant was discharged under non-disqualifying conditions.

Decision: The initial determination of the local office holding the claimant ineligible to receive benefits effective March 7, 1977 without disqualifying conditions is sustained.

The employer's objection is overruled.

The decision of the referee is reversed. (November 29, 1977)

COMMENTS

  1. Both the New York State Labor Law (Article 19) and the federal Wage and Hour Law require pay for overtime work, unless the employee is in one of several exempt categories, such as an executive, administrative or professional employee, or an outside salesman. In this decision the Appeal Board is indicating that attendance at training classes, given for the employer's as well as the employee's benefit, is work which must be paid for.
  2. A somewhat similar case, decided in 1971, concerned a waitress employed by a retail ice cream chain who was discharged because she refused to attend a training session on Sunday, her day off. The Board held the separation was not disqualifying because the employer made no provision to pay claimant's wages and travel costs for attending the session. (A.B. 166,998; not reported)



A-750-1847
Index 1740 D-6
1295-10
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

February 9, 1978

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Wages
REFUSAL OF EMPLOYMENT
Other reasons for refusal

Appeal Board Decision 249,137

DELAYED PAYMENT OF WAGES

Leaving employment because of employer's continual failure to pay wages on time in violation of law, is with good cause, and a refusal to return is justified when no assurance is provided against repetition of such practice.

Referee Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective April 7, 1977 because she voluntarily left her employment without good cause, is overruled. The initial determination of the local office disqualifying claimant from receiving benefits effective April 20, 1977 because, without good cause, she refused employment for which she is reasonably fitted by training and experience, is sustained.

Appealed by: Claimant

Findings of Fact: Claimant, a dishwasher, worked for the employer approximately one year until April 6, 1977. Claimant left her employment because of general dissatisfaction with her working conditions and more particularly her employer's ongoing failure to pay her wages on time.

Claimant's employer continuously failed to pay claimant her wages within seven days after the end of the week in which the wages were earned, thus violating Section 191 (1) (a) of the Labor Law which provides in part:

"1. Every employer shall pay wages in accordance with the following provisions:

a. Manual worker - A manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages were earned;..."

Claimant was offered employment on April 20, 1977 and refused said offer because of her dissatisfaction with the conditions of her employment. There is no evidence that the employer took any steps since the claimant quit to pay its employees in compliance with the above statute.

Opinion: Since there has been no appeal on this issue, that the claimant voluntarily left her employment with good cause because her employer, in violation of the Labor Law, withheld her wages in excess of seven days after the end of the week in which her wages were earned, we conclude that claimant refused the employer's offer of reemployment with good cause. The claimant is not obligated to accept an offer of employment made by her former employer when that employer had established a history of retaining wages earned by the claimant for a period impermissibly long under the law and had not provided assurance against repetition. Accordingly, no disqualification can be imposed on the claimant for such refusal.

Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective April 20, 1977, because, without good cause, she refused employment for which she is reasonably fitted by training and experience, is overruled.

The decision of the referee, insofar as appealed from is reversed.

There having been no appeal therefrom, that portion of the referee's decision overruling the initial determination of the local office disqualifying the claimant from receiving benefits effective April 7, 1977, because she voluntarily left her employment without good cause, remains in effect.

COMMENTS

Section 591 of the New York State Labor Law sets standards for frequency and promptness of wage payments. It applies generally to all employers except government agencies, and provides in part as follows:

1. Manual workers must be paid weekly and not later than 7 calendar days after the end of the payroll week. However, if employed by a non-profit organization, they can be paid semi-monthly.

2. Commission salesmen whose earnings are based in whole or in part on commissions, must be paid not less frequently than once a month, and not later than the last day of the month following the month in which the money was earned.

3. Clerical and other workers must be paid not less frequently than semi-monthly, on regular pay days designated in advance.




A-750-1848
Index 1722-7
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

February 10, 1978

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Distance, travel expense or requirement

Appeal Board Decision 250,351

LOSS OF DRIVER

Leaving employment because of loss of transportation is without good cause when the employer might have resolved the problem had claimant apprised him of it.

Referee Decision: The initial determinations of the local office disqualifying the claimants, S .L. and B.H., from receiving benefits, effective March 16, 1977, and March 8, 1977, respectively, because they voluntarily left their employment without good cause, are overruled.

Appealed by: Employer

Findings of Fact: The claimants were employed as nurse's aides by a nursing home in Canton, New York. They live in Lisbon, New York, a distance of approximately 19 miles from their place of employment. They worked on the 3:00 p.m. to 11:00 p.m. shift. They traveled to work with a co-employee who also lived in Canton. On approximately March 15, 1977, the co-worker, with whom they traveled to work, resigned. There is no public transportation available between these communities and neither claimant had a car available for her use. Both claimants resigned due to this lack of transportation. They last worked for the employer on March 7, 1977 and March 15, 1977 respectively. Neither claimant, in her written resignation, cited a reason for her resignation or attempted to speak to any person in authority regarding the transportation difficulty. There were other employees who worked on different shifts who lived in or near the area of their residence. The claimants did not attempt to have their shifts changed.

Opinion: The credible evidence establishes that the claimants resigned from their employment because their usual mode of transportation was no longer available. Although neither claimant had either public or private transportation available, they did not notify the employer of their transportation difficulties and thereby afford the employer an opportunity to resolve the problem. Neither did they seek a change of shift which they might reasonably have done. Had they done so, the employer might have accommodated them and, therefore, transportation would have been available for the new shift. Their belief that no work would be available on a different shift was purely conjectural. By their precipitous resignation without utilizing the extant channels, they failed to act prudently and protect their employment and so voluntarily left their employment without good cause.

In view of our decision on the issue of voluntary leaving, it is unnecessary to rule on the issue of claimant, S.L.'s availability for employment.

Decision: The initial determinations of the local office disqualifying the claimants from receiving benefits effective March 16, and March 8, 1977, respectively, because they voluntarily left their employment without good cause, are sustained.

The decision of the referee is reversed. (December 16,1977)




A-750-1849
Index 1580 B-6
1580 C-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 24, 1978

Interpretation Service - Benefit Claims
MISREPRESENTATION
Forfeit penalty, calculation

Appeal Board Case 256,651

QUIT OF CONCEALED EMPLOYMENT

When there is wilful concealment of employment during a continued claim, the fact that a quit of such employment is thereby concealed does not justify a second forfeit penalty when an additional claim was not filed.

Referee decision: The initial determinations of the Out-of-State Resident Office holding the claimant ineligible to receive benefits effective August 16 to August 24, 1976 because he was not totally unemployed; disqualifying him from receiving benefits effective August 25, 1976, because he voluntarily left his employment without good cause; charging him with an overpayment of $1,211.25 in benefits, ruled to be recoverable and holding that he wilfully made false statements to obtain benefits by reason of which forfeitures totalling 28 effective days were imposed as penalties in reduction of his future benefit rights, are overruled.

Appealed by: Employer

Findings of fact: Claimant was employed as an auto mechanic in a service station from July 1, 1971 through July 30, 1976. His employment terminated when the business was sold to the employer herein. He filed an original claim for benefits effective August 9, 1976 and was found eligible to receive benefits. On August 16, 1976 he went to work as a mechanic for the new owner and was employed through August 24, 1976. He received $240 in cash as payment for the week ending August 22, without any deductions being made for taxes, etc. On August 24, claimant was offered a check in the amount of $61.75 representing payment of $80 for work done on August 23 and August 24, less the usual deductions. He refused the check and requested payment, without any deductions for taxes. When the employer refused, the claimant quit.

When he certified for benefits for the statutory weeks ending August 22 and August 29, 1976, claimant indicated that he had done no work in each of those weeks. He received $95 in benefits for each week from August 16 through November 21, 1976. At no time during this period did he inform the local office or the Out-Of-State Office that he had been employed by the new owner from August 16 through August 24, 1976, and had quit the job on August 24, 1976.

Opinion: The credible evidence now before the Board establishes that claimant worked for the new owner of the gas station from August 16 through August 24, 1976, when he quit because he wished to be paid without any deductions for taxes. Claimant's quitting the job, because he objected to the normal tax deductions from his pay, was a personal and non-compelling reason and without good cause. Since he worked from August 16 through August 24, 1976, he was not totally unemployed during that period. He voluntarily left his employment on August 24, 1976 without good cause.

Accordingly, claimant was not entitled to the benefits he received since August 16, 1976 and was overpaid $l,211.25 in benefits. The overpayment is recoverable because claimant falsely certified that he had done no work between August 16 and August 24, 1976.

Finally, claimant's false certifications that he did no work in the two statutory weeks beginning August 16 and August 24, 1976 were willfully false and subject him to a forfeiture of 16 days of future benefits imposed as a penalty therefor. Each false certification merits a penalty of eight effective days.

However, there is no basis for the imposition of the 12 day penalty imposed because claimant did not disclose the identity of his last employer and that he had quit his job. The record establishes that no inquiry was made to claimant as to whether or not he had any employment after he filed his original claim on August 9, 1976. Benefits were paid to him continuously and with no interruption in his claim. Thus, the concealment of the identify of his last employer and that he had quit the job cannot serve as the basis for a penalty for making a wilful misrepresentation to obtain benefits. Our attention is directed to several prior cases, where the Board appears to have held to the contrary. In each of those cases (A.B. 82,749 and 147,904), there is no explanation or discussion to indicate how such conclusion was reached. The certification in the pay order that claimant did not work in the week for which he claimed benefits permits of only one penalty. The Industrial Commissioner, in the case now before us, imposed a 16 day penalty for those false certifications. For the deception in this case he could have imposed a penalty of up to 80 days, had he so desired (See Standards for Imposition of forfeit Days A710-21 Revised). He did not do so. We shall no longer follow any prior decisions to the contrary on this issue.

Decision: The initial determinations of the Out-of-State Resident Office holding the claimant ineligible to receive benefits effective August 16 through August 24, 1976 because he was not totally unemployed; disqualifying him from receiving benefits effective August 25, 1976, because he voluntarily left is employment without good cause; and charging him with an overpayment of $1,211.25 in benefits, ruled to be recoverable are sustained.

The initial determination holding that the claimant wilfully made false statements to obtain benefits by reason of which a forfeiture of 16 effective days was imposed as a penalty in reduction of his future benefit rights is sustained.

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

The decision of the referee is modified accordingly. (January 11, 1978)

COMMENTS

  1. This decision changes the way in which Section 594 of the Unemployment Insurance Law is to be applied to certain cases of wilful false statement or representation. Heretofore a claimant who, in the week of a continued claim, worked in employment and quits the job without revealing either, was held to have committed two offenses when he certified for benefits for that week, each offense justifying a separate forfeit penalty. In the instant case, the Appeal Board is now saying that the certification on a pay order that claimant did no work in the week for which he claimed benefits, is a false statement which permits only one penalty.

  2. However, the Board also indicates that a case of this kind may spell out aggravating circumstances justifying a deviation from standards by increasing the number of forfeit days to be imposed for the single offense. The following guideline should be used in calculating such increase.

  3. For illustration, if the above guidelines were in effect, claimant in the instant case would be subject to forfeit penalties as follows:

    1. Wilful misrepresentation on August 25, 1976 as to total unemployment in week ended August 22, 1976 - 8 forfeit days

    2. wilful misrepresentation on September 1, 1976 as to total unemployment

    in week ended August 29, 1976 - 16 forfeit days

    Total penalty - 24 forfeit days

    (The standard penalty of 8 forfeit days for wilful misrepresentation on September 1, 1976 is increased by 8 forfeit days because claimant not only concealed work on August 23 and 24 but also quit without good cause on August 24 and an overpayment resulted from such quit.)




A-750-1850
Index 1010-6
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

April 10, 1978

Interpretation Service - Benefit Claims
HEARINGS AND APPEALS
Timeliness

Appeal Board Decision 202,436

CHANGE OF RESIDENCE

The 30 day statute of limitations on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved.

Referee decisions: The revised initial determinations of the local office holding claimant, F.J.C. ineligible to receive benefits effective January 24, 1969 through September 15, 1969 because he was not totally unemployed and charging him with an overpayment of $1,220 in benefits, ruled to be recoverable, remain in effect because he failed to request a hearing thereon within the statutory period (A.B. 208,436).

The revised initial determinations of the local office holding claimant, Francisco C. ineligible to receive benefits effective January 24, 1969 through July 13, 1969 because he was not totally unemployed and charging him with an overpayment of $975 in benefits, ruled to be recoverable, remain in effect because he failed to request a hearing thereon within the statutory period (A.B. 208,275).

Appealed by: Claimants

Findings of fact: The claimants herein were employed by an airline at the time their union struck the employer in January 1969. The strike lasted for a year, during which time they did not work for this airline.

In July 1972, as the result of litigation between claimants' union and the employer, each of the claimants was awarded a sum of money covering the period of the strike from January 24, 1969 through January 30, 1970, in accordance with a formula worked out between the union and the employer. Through negotiation, it was agreed that unless the employee reported actual earnings from other employment during this period, $2,750 would be used as the minimum amount reportable by each employee as his earnings from other employment. The regular rate of pay for each employee was established for the period in question and from it was subtracted either $2,750 or a larger amount of earnings, if so reported by him. Pursuant to this formula, claimant F.J.C. was paid $5,112.14 and claimant Francisco C. was paid $4,143.05.

Claimant F.J.C. filed an original claim for benefits in March 1969. After the statutory suspension of his benefits for seven weeks had elapsed, he received benefits, at the rate of $61, totalling $1,220, from March 17 through August 3, 1969. He was unemployed from the inception of the strike until he returned to work for the airline in May 1970.

At the time F.J.C. filed his claim for benefits in March 1969, he resided at 115-46 114th Place, South Ozone Park. In April 1971, he moved to his present home at 118-75 128th Street, South Ozone Park. He did not notify the post office of this change of address. The revised notices of the initial determinations were mailed by the local office to claimant at the 114th Place address on December 21, 1972. He did not receive the notice. When he next reported to the local office on September 3, 1974 to file a new claim, he reported his current address. He was not informed until October 7, 1974 of the initial determinations which had been issued by that local office on December 21, 1972. He promptly requested a hearing on that same day.

Claimant Francisco C. filed an original claim for benefits in March 1969, after the expiration of the seven weeks statutory suspension of his benefits due to the strike. He received $975 in benefits thereafter, at the rate of $65,through June 29, 1969. He then obtained employment with another airline for which he worked until recalled by the employer herein in June, 1970. At the time he filed his claim in March 1969, claimant resided at 148-31 87th Avenue, Jamaica. He moved from that address in July 1971 to his present address in Queens Village and notified the post office thereof. Notice of the revised initial determinations herein was mailed on December 19, 1972 by the local office to claimant at the Jamaica address. He did not receive the notice. On July 17, 1974, when be next came to the local office and was informed of the initial determinations, he requested a hearing thereon.

Opinion: The first issue to be resolved herein is whether a request for a hearing is untimely when the notice of the initial determination is mailed to the last known address of a person who is no longer a claimant for benefits, who no longer resides at such address, does not receive the said notice of determination and, therefore, does not request a hearing until after the expiration of the statutory period within which a request for a hearing must be made by a claimant or by a party affected by the determination.

Section 620.1 of the Law provides that a claimant or any other party affected by an initial determination of a claim for benefits may, within 30 days after the mailing or personal delivery of notice of such determination, request a hearing.

In each of these cases it is clear that the addressee was no longer a claimant when notice of the initial determinations was mailed to his last known address from which he had long since moved; that he did not receive said notice of determinations; and that he did not become aware of the issuance of the initial determinations until after the expiration of the statutory period applicable to a request for a hearing by a claimant or by a party affected thereby. Under these circumstances, we can conceive of no valid basis upon which to hold that the addressees herein did not make timely requests for a hearing. Since his claim for benefits had long since terminated, it cannot be argued that the addressee in each of these cases was under any obligation to keep the local office or the Industrial Commissioner informed of his whereabouts, notwithstanding that an individual then claiming benefits may have such an obligation. Accordingly, we hold that, when a notice of initial determination is mailed to a person who is not then a claimant, at his last known address, where he no longer resides, and he does not receive the said notice, there is no "mailing" within the meaning of Section 620.1 of the Law and the 30 day statute of limitations provided therein may not be invoked.

Finally, it appears that in each of these cases a request for hearing was made promptly after the addressee was handed a copy of the initial determinations herein when he appeared at the local office. Since such request was made within 30 days of this personal delivery of the initial determinations the case should be decided on the merits.

The Industrial Commissioner argues that the amount paid to each of these persons represented compensation for the loss of full earnings and that since their union agreed to the amount of $2,750 as the minimum reportable by each as his earnings from other employment during the period of the strike, such amount must be deemed a reasonable appraisal of such earnings. We do not agree. It is significant that F.J.C., who was unemployed from the inception of the strike until recalled in May 1970, received precisely the same amount as another employee, A.S., who had earnings of $l,447 from two other jobs which he had during the strike (see A.B. 206,294). The award to each or these men is similar to that in Matter of Minnie Cohen (44 AD 2d 286, aff'g A.B. 178,824) where the award, which was calculated by deducting other income from the amount of pay claimant would have earned on her job, was held to be damages for her wrongful discharge. Accordingly, we conclude that the award to each of these men did not constitute a retroactive payment of remuneration so as to render them ineligible because of lack of total unemployment during the periods involved. Claimants F.J.C. and Francisco C. were totally unemployed during the periods in issue, and they were not overpaid.

Decision: The objections of the Industrial commissioner that F.J.C. and Francisco C. did not make timely requests for a hearing are overruled.

The initial determinations of the respective local offices are overruled.

The decisions of the respective referees are reversed. (July 24, 1975)

COMMENTS

1. Section 620.1 of the Unemployment Insurance Law fixes the time limit for requesting a hearing on an initial determination as 30 days after mailing or personal delivery of notice of such determination. The referee may extend such time limit upon evidence that the physical condition or mental incapacity of the claimant prevented him from filing a timely appeal.

2. It is an established principle that mail properly addressed and posted and not returned by the Postal Service, must be presumed to have been delivered.

The Appeal Board has held that this presumption of regularity is not overcome by a mere statement, even if made under oath, that it was not received. (A.B. 244,588; not reported)

3. A notice of determination mailed to claimant's last known address, and not returned by the Postal Service, ordinarily meets the statutory requirement for tolling the 30 day time limit. The instant case represents an exception to the rule because claimant changed his residence after dropping his claim for benefits. The Board held that under this circumstance he was not obligated to inform the local insurance office of his new address.

4. It should be noted that the instant rule applies only when claimant moved after dropping his benefit claim, and only when he alleges non-receipt of the notice of determination. Thus a co-worker of claimant who also failed to request a hearing within 30 days of mailing of such notice, having moved after dropping his claim, was held by the Board to have filed an untimely appeal because he admitted that the notice had been promptly forwarded to him by the Postal Service to his new address. (A.B. 206,294; not reported)

5. The instant decision is being released only for the timeliness principle which it illustrates. Interpretation Service rules on back pay awards, remain in effect.




A-750-1855
Index 1740 C-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 19, 1978

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Wages

Appeal Board Decision 264,513

DEDUCTIONS FOR RENT

A deduction from wages to pay rent owed the employer is a violation of Section 193 of the Labor Law which justifies voluntary leaving of employment.

Referee decision: The initial determinations of the Out-of-State Resident Office disqualifying the claimant from receiving benefits effective August 17, 1976 because he voluntarily left his employment without good cause; charging him with an overpayment of $3,543 in benefits, ruled to be recoverable; and holding that the claimant wilfully made false statements to obtain benefits by reason of which a forfeiture of 80 effective days was imposed as a penalty in reduction of his future benefit rights, is sustained.

Appealed by: Claimant

Findings of fact: Claimant, a painter, worked for the employer intermittently from 1959 until August 16, 1976. The claimant lived in a company house for which rent was deducted from his wages. During the lay-of periods, the back rent on the house was owed to the employer and was to be paid back to the employer during the next period of employment.

On claimant's last day of work, he was told by the foreman that he was being laid off due to a decline in business. The employer at that time indicated that other work was available for the claimant but only to enable the employer to recoup the back rent and the company house. Claimant refused to accept this offer of work. He thereafter filed a claim and indicated that he was not working because of a lack of work. He collected $3,543 in benefits.

Opinion: The credible evidence establishes that the claimant was laid off and did not voluntarily quit his employment without good cause. The hearsay evidence to the contrary presented by the employer cannot prevail over claimant's sworn and credible testimony. See Matter of Perry, 37 A.D. 2d 367, reversing A.B. #160,501.

The evidence also establishes that the other work available was offered to the claimant on the condition that he consents to deductions from his pay to reduce his indebtedness to the employer for back rent. Section 193 of the Labor Law provides in pertinent part as follows:

  1. No employer shall make any deduction from the wages of an employee, except deductions, which:

    1. are made in accordance with the provisions of any law or any rule or resolution issued by any governmental agency; or

    2. are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer's premises. Such authorized deductions shall be limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.

  2. No employer shall make any charge against wages, or require an employee to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under the provisions of subdivision one of this section . . ."

Accordingly, these deductions are not allowable under Section 193 of the Labor Law. Therefore, the claimant's refusal to work under these conditions was with good cause. Accordingly, the claimant lost his employment under non-disqualifying conditions.

The claimant was entitled to benefits and, accordingly, there was no overpayment. Furthermore, claimant's report to the local office that he was not working because of a lack of work was true. Accordingly, he made no wilful false statement to obtain benefits.

Decision: The initial determinations of the Out-of-State Resident Office are overruled.

The decision of the administrative law judge is reversed. (June 1, 1978)

COMMENT

For another case involving Section 193 of the Labor Law and a discussion of that provision see A-750-1816 and Comments in release.




A-750-1856
Index 1605 F-6
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 26, 1978

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Voluntary leaving or refusal

Appeal Board Decision 264,829

OFFER OF CONTINUED EMPLOYMENT

A claimant who was hired for a specified period is subject to disqualification for voluntary leaving of employment if he rejects an offer of continuing work upon expiration of that period.

Referee decision: The initial determinations of the local office disqualifying the claimant from receiving benefits, effective November 24, 1977, because he voluntarily left his employment without good cause, and charging him with an overpayment of $87.50 in benefits, to be recoverable, are sustained. The initial determination of the local office holding that the claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of his future benefit rights, is overruled.

Appealed by: Industrial Commissioner

Findings of fact: Claimant was employed by a State agency for approximately five months as a bridge repair assistant. He quit his job effective November 23, 1977, because he intended to go to school beginning in January, 1978. His temporary appointment expired November 23, 1977, but there was continuing work available for him in another temporary appointment in the same title and pay grade. He did not wish to begin work in the new appointment and then resigned shortly thereafter because he believed that action would jeopardize his chances of obtaining future summer employment with the same employer. On his claim for benefits, the claimant stated that he was no longer working for his last employer because his temporary appointment was terminated. He knew that he had quit to go to school when continuing work was available. He received $87.50 in benefits thereafter.

Opinion: The credible evidence establishes that the claimant quit his job because he was preparing to go to school in January, 1978. He knew the true reason for his resignation at the time he filed for benefits. Accordingly, we conclude that his statement on the original claim was knowingly false and the forfeit penalty was properly imposed.

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

The decision of the Administrative Law Judge, insofar as appealed from, is reversed.

There having been no appeal taken therefrom, that portion or the decision of the Administrative Law Judge sustaining the initial determinations of the local office disqualifying the claimant from receiving benefits, effective November 24, 1977, because he voluntarily left his employment without good cause and charging him with an overpayment of $87.50 in benefits, ruled to be recoverable, remain in effect.

(May 31, 1978)

COMMENTS

The Appeal Board has consistently held that it is not good cause to voluntarily leave employment merely because of a previously agreed time limitation upon the employment. Thus, a voluntary quit disqualification was upheld by the Board in the following unreported cases:

A hospital intern who chose not to renew her one-year written contract (A.B. 202,942)

A department store porter whose employer agreed at time of hire that he could leave when the earnings limit for social security benefits was reached (A.B.207,120).

A college student who accepted a summer job as a clerk with the understanding that she would return to college in the fall (A.B. 238,383).

An actor employed under a standard "run-of-the-show" contract between the employer and his union, who rejected that employer's offer to audition for the next production, with rehearsals to begin immediately upon closing of the current show (A.B. 259,306).




A-750-1857
Index 1685-B3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 20,1978

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Move from locality

Appeal Board Decision 268,002

RESIDENT OF MILITARY BASE

A claimant who lost her living quarters on a military base because her serviceman-husband was transferred overseas, and who left her job off the base to move in with her parents in a distant city, was disqualified for voluntary leaving of employment, because she might have been able to find affordable accommodations near the job had she made diligent efforts to do so.

Administrative law judge decision: The initial determination of the local office holding claimant eligible to receive effective December 17, 1977 without any disqualifying conditions, is sustained.

Appealed by: Employer

Findings of Fact: Claimant worked in Watertown as a nurse's aide for two years until August 26, 1977. She resided with her husband, a member of the Armed Forces, on an Air Force Base in Watertown. Claimant's husband was given two months notice that he was being transferred to Korea. Consequently, claimant gave up her living quarters on the base in return for which she was given a living allotment of $200 a month. Claimant's net salary was approximately $336 per month. Claimant made a few efforts to secure a place to live but decided to leave her employment and move in with her family in Buffalo instead.

Opinion: The credible evidence establishes that claimant left her employment for personal and non-compelling reasons, namely to move in with her family following her husband's transfer to Korea. We reject her contention that it was too expensive for her to continue to live in Watertown. She was given an extra $200 a month living allowance following her husband's transfer and her net salary of approximately $336 a month would have continued. Moreover, she made only a few efforts to secure an apartment before she decided to move back to her family. Accordingly, we conclude that she voluntarily left her employment without good cause. Since claimant last worked on August 26, 1977, she is disqualified from receiving benefits effective August 27, 1977.

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

The employer's objection is sustained.

Claimant is disqualified from receiving benefits effective August 27, 19177, because she voluntarily left her employment without good cause and until she has subsequently worked in employment not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and earnings therefrom will not count.

The decision of the administrative law judge is reversed. (June 7, 1978)

COMMENTS

  1. The Appeal Board has held that the disqualification for voluntary leaving of employment did not apply when claimant was not allowed to reside on a military base after her husband, a serviceman, was transferred, and she was financially unable to obtain suitable living quarters for herself and her children. (A.B. 192,827F, not reported). Presumably, such disqualification would apply if, as in the instant case, affordable accommodations were available.




A-750-1858
Index 1137-3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 24, 1978

Interpretation Service - Benefit Claims
MISCONDUCT
Civil rights

APPELLETE DIVISION DECISION

Matter of Maria J. Kubus

REFUSAL TO ANSWER EMPLOYER'S QUESTIONS

Refusal to answer questions during an employer's formal interrogation regarding alleged improprieties, when the testimony may ultimately be used in a criminal proceeding against the employee, is an exercise of constitutional rights against self-incrimination and therefore is not misconduct.

DECISION

This is an appeal from a decision of the Unemployment Insurance Appeal Board, which affirmed the decision of a Referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits on the grounds that she lost her employment through misconduct in connection therewith.

Claimant was employed as an Employment Security Clerk at a local unemployment insurance office. Due to a reduction in the work force claimant was informed in May, 1976 that she was to be laid off and such was to occur at the end of the first pay period in June. Prior to her being laid off, claimant was told to report to an investigator at the main office. While there, claimant was questioned concerning allegations that she wrongly certified her sister to benefits and had falsified daily attendance records. Claimant denied these allegations generally and expressed a desire to be represented by an attorney. Upon the advice of her attorney she refused to answer specific questions related to these charges. Claimant was thereafter terminated on the ground that her refusal to answer the questions of the investigator constituted misconduct. Concededly, there was no affirmative evidence to indicate the claimant was guilty of any wrongdoing. The board disqualified her from receiving benefits concluding that her refusal to answer the questions amounted to misconduct.

The question presented, as we view it, is whether claimant, a State employee, is guilty of misconduct for refusing to answer work-related questions on advice of counsel.

It is clear from the record that claimant was being questioned about her alleged wrongful participation in obtaining, by the use of falsified attendance records, unemployment benefits for a member of her family. The subject matter could manifestly be criminal in nature. On advice of counsel claimant elected to avail herself of the protection of the Fifth Amendment of the United States Constitution and section 6 of article 1 of the New York State Constitution. It is axiomatic that a person may assert this privilege in any situation where the testimony may ultimately be used in a criminal proceeding against him (Matter of Gault, 387 U.S. 1, 47-48). The issue narrows to whether the State may deny claimant unemployment benefits because she exercised her rights under the United States Constitution and the New York State Constitution. We think not (Matter of DeGrego [Levine] 46 Ad 2d 253, affd. on other grds. 39 NY 2d 180). Such conduct could not, under the circumstances, be considered misconduct.

The decision should be reversed, with costs, and matter should be remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. (June 8, 1978)

COMMENTS

  1. The rule of this release applies only to cases with a specific set of circumstances. They are as follows:

    1. The employer had no affirmative evidence that the employee was guilty of any wrongdoing.

    2. The employee was asked questions, the answers to which might ultimately be used in a criminal proceeding against him.

    3. The employee was discharged solely because he refused to answer those questions.

  2. If an employer does have evidence that an employee committed misconduct in connection with his employment and discharged him for that reason, a disquslification for misconduct should be imposed whether or not claimant was asked questions by his employer which might ultimately be used in a criminal proceeding against him and whether or not claimant refused to answer them.

    Furthermore, if the wrongdoing claimant is suspected of has no criminal connotations, discharge because of refusal to answer an employer's reasonable questions about it would justify disqualification for misconduct, because an issue of constitutional rights would not then exist.

  3. Cases of discharge because of refusal to answer questions relating to possible employee wrongdoing should be referred through channels to the Adjudication Services Office for an opinion.



A-750-1859
Index 815-6
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 26, 1978

Interpretation Service - Benefit Claims
REPORTING
Failure to complete reporting

Appeal Board Decision 265,970

INFORMATION ON JOB SEARCH

Deliberate disregard of local office instructions to supply the complete addresses of employers visited in a search for work, is a failure to comply with reporting requirements.

Administrative law judge decision: The initial determination of the Out-of-State Resident office holding the claimant ineligible to receive benefits effective December 19, 1977 through January 15, 1978 because she failed to comply with reporting requirements, is overruled.

Appealed by: Industrial Commissioner

Findings of fact: Claimant worked as a button maker in a factory for approximately five years until she lost her job on November 23, 1976 under non-disqualifying conditions. She filed an original claim for benefits on January 14, 1977 and received benefits thereafter. Claimant was in Puerto Rico from November 26, 1977 through January 15, 1978. On December 12, 1977, claimant filed an interstate claim in Puerto Rico against the State of New York. She listed the names and the town or general locality of the employers she contacted in an effort to find employment for the week ending December 10, 1977. On December 22, 1977 claimant reported to the insurance office in Puerto Rico and submitted a claim for the week ending December 17, 1977 wherein she again listed the town or general locality of her job efforts. She was advised by the claims examiner that she was to provide the complete addresses of her job contacts. Claimant disregarded these instructions in her claim for the next two weeks when she filed on January 5, 1977. She listed only the general locations and not the complete address of the job contacts she made.

Opinion: The evidence establishes that claimant deliberately disregarded the instructions of the insurance office that she supply the complete addresses of employers she contacted in an effort to obtain employment. She gave only the general location or the town of such employers and made it difficult and often impossible for the insurance office to verify these contacts. Accordingly, we find that claimant failed to comply with reporting requirements effective December 19, 1977 through January 1, 1978.

Decision: The initial determination of the Out-of-State Resident Office holding the claimant ineligible to receive benefits effective December 19, 1977 through January 15, 1978 because she failed to comply with reporting requirements is modified to be effective from December 19, 1977 through January 1, 1978.

The decision or the administrative law judge is reversed. (June 28, 1978)

COMMENTS

1. The instant rule is a refinement of the rule of Matter of Sorrentino, 1950, to the effect that a claimant who refuses to answer questions on a form or at an interview about prospective employers contacted in seeking employment, is not entitled to benefits during the period of such refusal. (A-750-964)

2. In the instant case, the Appeal Board limited the period of disqualification to the two benefit weeks in question.




A-750-1861
Index 805.9
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 8, 1978

Interpretation Service - Benefit Claims
REPORTING
General

FORMER LOCAL OFFICE EMPLOYEE

Directing claimant, a former local office employee, to report to a nearby local office where he is not known to the personnel who will process his claim, is a reasonable exercise of administrative authority.

Appeal Board Decision 270,061

Administrative law judge decision: The determination of the local office, dated April 3, 1978, directing claimant to report to Local Office 520, in the Bronx, New York in connection with his claim, is overruled.

Appealed by: Industrial Commissioner

Findings of fact: Claimant was employed as a provisional claims examiner in Local Office 512 located at 559 W. 180th Street, Manhattan from June 23, 1977 to September 15, 1977. Thereafter, he worked at the employment service office at 1515 Broadway, in Manhattan until March 29, 1978 when he was laid off. Claimant filed an original claim for benefits on April 3, 1978 at Local Office 512 which services the area in which he resides. It is within walking distance of his home. As a method of fraud control, local office employees are not allowed to service claimants that are known to them. Because claimant had worked in Local Office 512 for almost three months during his base period and was known to many of the local office staff, his claim, was transferred to Local Office 520 in the Bronx which is the next nearest local office to claimant's home. Reporting to Local Office 520 requires claimant to travel an additional twenty minutes by bus.

Opinion: Section 596 of the Labor Law provides that a claimant shall file a claim at the local state employment office serving the area in which he was last employed or in which he resides, within such time and in such manner as the commissioner shall prescribe. Regulation 40(d) provides that the claim for benefits shall be filed by the claimant in person at the unemployment insurance office which serves the area in which he was last employed or in which he resides (12 NYCRR 473.1(d)). Nothing in the statute or regulations specifically covers the matter here in dispute.

Local Office employees are forbidden from handling claims of persons with whom they are acquainted. This is a sound policy designed to avoid the possibility that favorable treatment may be accorded to persons known to the local office staff and the appearance of any impropriety. In this case, we have the unusual situation where a former local office employee has become a claimant for benefits and has filed his claim at his former place of employment. Since claimant had recently been employed at that office, and was known by its staff, the direction that claimant report to Local Office 520, the next office nearest his residence, was a reasonable method of resolving the problem. Local Office 520 is not located at an unreasonable distance from claimant's home, nor is the travel time required to get there excessive. We find that, under the circumstances, the direction to claimant to report to Local Office 520 was a proper exercise of administrative authority.

Decision: The determination of the local office, dated April 3, 1978 is sustained

The decision of the administrative law judge is reversed. (July 7, 1978)




A-750-1862
Index 1665-3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 11, 1978

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Part-time employment

EARNINGS LESS THAN BENEFIT RATE

A claimant who leaves part-time employment after layoff from concurrent full-time work is subject to disqualification for voluntary quit even if net earnings plus possible partial benefits are less than the full benefit rate.

APPELLATE DIVISION DECISION

Matter of Richard Grandy

Appeals from decisions of the Unemployment Insurance Appeal Board, filed August 12, 1977. and November 7, 1977, which affirmed decisions of a Referee sustaining initial determinations of the Industrial Commissioner holding claimant eligible to receive benefits without disqualifying conditions overruling the employer's objection to the assessment of experience rating charges.

The facts of these cases are not disputed. Two days after he was laid off from his full-time position as a welder with a firm that had engaged him for over eight years, claimant resigned the concurrent part-time job that he had held with another for some six weeks as a service station attendant and filed for unemployment insurance benefits. The loss of his primary source of income occurred under non-disqualifying conditions and, even though continuing work was available at the service station on the same terms and conditions, it: was initially determined that claimant had good cause to quit such part-time employment since his weekly benefit rate of $95 was significantly higher than the wages of approximately $50 per week he received from the secondary position. The service station employer contested this determination, together with a later employer (see Labor Law,§ 581, subd. 1, par. [e]), but both challenges were rejected following separate hearings before the same Referee. His findings and opinions were adopted by the board and these appeals from its respective decisions ensued.

In our opinion the decision must be reversed. During the brief interval between his layoff and resignation, claimant had been advised by respondent's representative that unemployment insurance benefits could not be utilized to subsidize his loss of earning capacity while he continued to work for appellant. The sole reason claimant then left his part-time employment, as the board found and he concedes, was a desire to qualify for benefits. The error of the board was in its legal conclusion equating good cause for refusing employment (see Labor Law, §593), with good cause for leaving work to obtaining such benefits in the first place. Unemployment insurance benefits are payable only to those who are "totally unemployed" (Labor Law, §591, subd. 1) and even those who are arguably employed in only a technical sense are ineligible to receive them. (See e.g., Matter of Todino [Ross], 59 A D 2d 638; Matter of Brandau [Levine] 52 AD 2d 696; cf. Matter of Swyer [Levine] 52 A D 2d 707). Although it does seem harsh to refuse to extend benefits to an employee who happens to engage in additional outside employment while granting them to a less industrious coworker whose single position comes to an end at the same time, unemployment insurance is not a minimum wage substitute and one may not voluntarily leave employment to secure its advantages Matter of Dillon [Career Children's Servs. -Ross], 59 A D 2d 592, Matter of Jolly [Levine], 52 A D 2d 706). Any change in the meaning of total unemployment must be accomplished by legislative means, and we are constrained to conclude, as a matter of law, that claimant's voluntary resignation from appellant's employ was without good cause. Since this result may well have a favorable impact on appellant's experience rating charges. (see Labor Law, §581, 3 subd. 6), we find it unnecessary to pass upon the specific arguments addressed to that determination at this time and remit both decisions to the board for further consideration.

Decisions reversed, without costs, and matters remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. (July 27, 1978)

COMMENTS

1. This decision reverses previous principles. It indicates that potential entitlement to unemployment insurance benefits in an amount higher than claimant's net earnings from employment, does not justify leaving that employment.

2. Appellate Division Decision, Matter of Jolly, 1976 (not reported), cited in the instant decision, concerned a claimant who was terminated from her job as an analyst for the City of New York, and then secured part-time work as a department store salesperson. She quit the latter job after three months when she learned that under a new Federal law affecting municipal employees, she had potential entitlement to Special Unemployment Assistance at a rate substantially higher than her net earnings as a salesperson. The court stated that leaving employment for the sole purpose of collecting unemployment insurance, is without good cause. The other cases cited in the instant decision are not directly in point.

3. The instant rule applies only to voluntary quit cases. Refusal of part-time employment is with good cause if claimant's net pay plus any partial benefits would be less than his benefit rate. (Index 1205F-5, A-750-1541; Index 1250F-6, A-750-1557).




A-750-1863
Index 1460F-6
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 15, 1978

Interpretation Service -Benefit Claims
TOTAL UNEMPLOYMENT
Employment contracts

TEACHER ON SABBATICAL LEAVE

A teacher with an employment contract covering twelve months, who chooses to spend the year on sabbatical leave at half pay, is not totally unemployed throughout the twelve months, even though he selects the option of receiving full pay for the first six months and none thereafter.

Appeal Board Decision 270,852

Administrative law judge decision: The initial determinations of the local office holding the claimant ineligible to receive benefits effective March 20, 1978 because she was not totally unemployed and holding that the claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of four effective days was imposed as a penalty in reduction of her future benefit rights, are overruled.

Appealed by: Employer

Findings of fact: Claimant, a teacher, worked at a private school for approximately ten years. In January, 1977, she was informed by the headmaster that her services would not be required for the 1978-1979 school year. He also informed claimant. that since she had ten years of employment she was entitled to a one year of sabbatical leave, at half pay. On February 28, 1977, claimant entered into a contract of employment which covered the period from September 1, 1977 through August 31, 1978. Since she elected to take this year on sabbatical leave, she was entitled to receive one half of her usual pay, in monthly installments or full pay for the first six months of her leave. She chose the latter option. Claimant continued to be covered under the employer's medical insurance plan and to accrue pension credits throughout her leave. After receiving her final pay, claimant filed an original claim for benefits effective March 20, 1978, and indicated thereon that she was not working because she was "Fired, no reason given."

Opinion: The credible evidence establishes that claimant had a contract of employment which ran from September 1, 1977 through August 31, 1978 and chose to spend the year on sabbatical leave for which she received half of her pay. The fact that claimant took a sabbatical leave and received only half of the agreed pay for the year does not negate the fact that claimant was hired under an annual contract. Accordingly, we conclude that claimant was not totally unemployed during the period in issue. Claimant was aware of the facts. Hence her statement an her original claim that she was no longer employed because she was "Fired, no reason given," was wilfully false and was made to obtain benefits. Accordingly, claimant is subject to the forfeit Penalty imposed.

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

The decision of the administrative law judge is reversed. (August 10, 1978)




A-750-1865
Index 1010-7
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 21, 1978

Interpretation Service -Benefit Claims
HEARINGS AND APPELAS
Timeliness

OBJECTION PRIOR TO DETERMINATION

An objection made prior to the issuance of an initial determination is not a timely request for a hearing and does not give an administrative law judge jurisdiction to decide a case on its merits.

Appeal Board Decision 273,205

Referee decision: The initial determination of the out-of-State Resident Office holding claimant eligible to receive benefits, effective June 6, 1978, without any disqualifying conditions, and the Industrial Commissioner's objection that the initial determination remain in effect because the employer failed to request a hearing thereon within the statutory period, are overruled. The employer's objection to the payment of benefits to the claimant effective June 2, 1977 because he lost his employment through misconduct in connection therewith, is sustained.

Appealed by: Claimant

Findings of fact: On November 18, 1977, the Out-of-State Resident Office mailed to the employer at the address of its school in Rochester, New York a notice that the claimant was eligible to receive benefits without any disqualifying conditions. This notice stated on its face that, if the employer disagreed with the determination of eligibility, it could ask to have the determination reviewed at a bearing, but must make its request for a bearing no later than 30 days after the notice was mailed. The employer did not request a hearing until January 5, 1978.

Opinion: The evidence establishes that the employer failed to request a hearing within 30 days from the date that notice of the initial determination in this case was mailed to it. This notice was mailed to the same address in Rochester, New York., from which the Out-of-State Resident Office had previously received responses from the employer to inquiries involving this case. The employer's protests, in those responses, against any charges to its account did not constitute a request for a bearing based on the notice of November 18, 1977 because they were made prior to the issuance of the notice. Objections made prior to the issuance of the initial determination cannot be deemed a timely request for a hearing. The request must be made subsequent to issuance (Appeal Board 241,626A). Therefore, we conclude that the employer failed to make a timely request for a hearing and that the administrative law judge was without authority to rule on the employer's protest.

Decision: The initial determination of the local office holding the claimant eligible to receive benefits effective June 6, 1977 without any disqualifying conditions remains in effect because the employer failed to request a hearing thereon within the statutory period. The employer's objection is dismissed.

The decision of the administrative law judge is reversed. (October 27,1978)

COMMENTS

The rule of this release applies to protests by claimants as well as employers. A.B. 241,626A, cited in the instant decision, concerned a claimant who, before an initial determination was issued, wrote, "If my case is turned down I request a hearing " but after the determination was issued (adverse to him) made no such request until the statutory time had expired. As in the instant case, the Appeal Board held that there was no timely request for hearing.




A-750-1866
Index 1700-3
1730-8
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

January 10, 1979

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Other work
Vacations

VACATION BETWEEN JOBS

Leaving employment two weeks in advance of the starting date of definite, other employment, in order to take a vacation, is with good cause, if the job fails to materialize through no fault of claimant.

Appeal Board Decision 277,336A

Administrative law Judge decision: The initial determinations of the local office disqualifying the claimant from receiving benefits effective December 17, 1977 because he voluntarily left his employment without good cause am holding that the claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of four effective days was imposed as a penalty in reduction of his future benefit rights, are overruled.

Appealed by: Industrial Commissioner

Findings of Fact: Claimant was last employed as a manager in the shipping and receiving department of a book store for over a year until December 16, 1977 when he resigned. He then had a definite offer to work as a truck driver for another employer commencing January 2, 1978 and wanted to take a vacation for two weeks before starting a new job. When he reported to the prospective employer in January he was not put to work because the firm went out of business and the job which claimant had been promised did not materialize.

When claimant filed his original claim for benefits on March 7, 1978, he stated that he was not working for his last employer because "not work -slow".

Opinion: The credible evidence establishes that claimant terminated his employment two weeks prior to the starting date of a new job for which he had received a definite offer. A two week vacation between jobs is not unreasonable. Since the claimant had a definite job offer we conclude that he left his employment for good cause (see Matter of Curran, 41 NY 2d 856).

However, the evidence further establishes that claimant's statement as to the reason for his separation from the job was not only false, but he knew it to be untrue. Accordingly, we conclude that claimant wilfully made a false statement to obtain benefits and that the forfeit penalty was properly imposed.

Decision: The decision of the Board filed August 22, 1978 (Appeal Board 269,223), is hereby rescinded.

The initial determination of the local office disqualifying the claimant from receiving benefits effective December 17, 1977 because he voluntarily left his employment without good cause is overruled.

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

The decision of the administrative law judge is modified accordingly, and as so modified is affirmed. (November 21, 1978)

COMMENTS

1. The above rule applies only when a claimant had been unconditionally hired to start another job at a definite date but the job failed to materialize through no fault of his own. If there was no firm offer and acceptance, or no agreed starting date, or a leaving more than two weeks before such date, or a filing for benefits before the job failed to materialize, a disqualification for voluntary quit should be imposed.

2. Matter of Curran (1977) cited in the decision, concerned a teacher who had a firm offer of other work but quit a week in advance because she wanted time to draw up necessary reports for her old job and to prepare for the new job. On the scheduled starting date she discovered that because of funding problems her job was not available. The Court of Appeals held the quit to be with good cause, notwithstanding her early leaving.




A-750-1868
Index No. 920C-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 16, 1979

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

Appeal Board Decision 274,804

INSTRUCTIONAL EMPLOYEE; REASONABLE ASSURANCE

A notice of reappointment issued in good faith, which does not guarantee re-employment because it is conditioned upon the sufficiency of registration, changes in curriculum, and the employer’s financial ability, is "reasonable assurance" under Section 590.10 when other evidence, such as a history of re-employment for several years, indicates that the preconditions may not affect the claimant.

Administrative Law Judge Decision: The initial determination of the local office holding claimant, a professional employee of an educational institution, ineligible to receive benefits effective May 29, 1978 during a period between two successive academic years or terms because he has a reasonable assurance that he will perform services in such capacity for any such institution, pursuant to Section 590.10 of the Labor Law, is sustained.

Appealed By: Claimant

Findings of Fact: Since 1972, the claimant has been employed as an adjunct lecturer by a college of a city university. Each year since then, he was re-appointed even though such re-employment had not been guaranteed because of uncertainties in budget, registration and curriculum. He has the most seniority of the adjunct lecturers in his department. By May 1978, the college administration was preparing its proposed budget for the 1978-79 academic year. This budget included money for adjunct lecturers. On May 4, 1978, the Dean of Faculty of the college sent a notice to the claimant that he would be re-appointed as an adjunct member of the instructional staff for the fall of 1978. This reappointment was subject to the sufficiency of registration, changes in curriculum, and the financial ability of the college. The practice of the college is to assign its adjunct faculty to particular courses only after the students have registered for the fall courses. The registration is at the end of the summer and in early September. As requested on the notice, the claimant signed the notice of May 4, 1978 in the space provided thereon, below the words, "I hereby accept the adjunct re-appointment tendered above." The claimant then returned the notice to the college.

Opinion: Section 590.10 of the Labor Law, insofar as pertinent, provides as follows:

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

The section does not preclude a claimant from being eligible for benefits during the regular school term.

The claimant has worked in an instructional capacity for the college during the 1977-78 school year. On May 4, 1978, he was notified by the employer that he would be re-appointed for the fall of 1978. This creates a reasonable assurance of employment in an instructional capacity, as provided by Section 590.10 of the Labor Law. Notwithstanding the fact that there was no guarantee of re-employment because of factors such as budget, enrollment and registration, nevertheless, considering all of the facts including the claimant’s work history or re-employment since 1972, we conclude that he has a reasonable assurance of employment. The assurance is determined by the actions of the employer and continues until the actions of the employer establish the contrary. There is no indication that the employer was acting in other than good faith when it offered the claimant a reasonable assurance of re-employment. Since the claimant has a reasonable assurance of employment in an instruction capacity with an educational institution, his weeks of employment and remuneration with the educational institution are to be disregarded as provided in Section 590.10. Accordingly, we conclude that the claimant is ineligible to receive benefits during the summer recess.

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

The decision of the administrative law judge is affirmed. (December 8, 1978)

COMMENTS

The rule of this release applies to instructional, research, and principal administrative employees of all educational institutions, public or private, at college level or below, including public school districts.




A-750-1872
Index No. 1130-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 27, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Behavior off job

Appeal Board Decision 269,695

CORRECTIONS OFFICER

A county corrections officer, discharged after a disciplinary hearing under Civil Service Law on the findings of the hearing officer that he unlawfully coerced and restrained an individual, attempted to force her to perform a sexual act, falsely represented himself as a vice officer and threatened to arrest her, was subject to disqualification for misconduct in connection with his employment, even though the offenses were committed while off duty. A correction officer has the status of a peace officer, and is held to a high standard of conduct on or off the job.

Administrative Law Judge Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 7, 1977 because he lost his employment through misconduct in connection therewith, is overruled.

Appealed By: Industrial Commissioner and Employer

Findings of Fact: Claimant was employed as a correction officer by Westchester County for three-and-a-half years until October 6, 1977, when he was discharged. On April 8, 1977 claimant’s employer notified him that he was charged with committing certain acts while off duty on February 27, 1977 which demonstrated that he was unfit for his employment. In seven specifications, claimant was charged with unlawfully coercing and restraining an individual, attempted to force her to perform a sexual act, falsely representing himself as a police officer assigned to the investigation of vice, unlawfully threatening to arrest the individual, and improperly discharging a weapon.

Claimant requested a hearing on the charges and in June and July 1977 disciplinary proceedings were held pursuant to Article 75 of the Civil Service Law. Claimant was represented by counsel and was afforded the opportunity to present witnesses and to cross-examine witnesses who testified against him. The hearing officer found that claimant committed all of the acts described in the specifications, except improperly discharging a weapon. As a result, claimant was dismissed from his employment.

Opinion: The Board is bound by the findings made by a hearing officer following a hearing held pursuant to Article 75 of the Civil Service Law. Accordingly, we find that claimant falsely represented himself as a vice officer, unlawfully restrained and coerced an individual, unlawfully threatened to arrest her and attempted to force her to perform a sexual act. A correction officer has the status of a peace officer and as such is held to a high standard of conduct and has an obligation not to engage in improper conduct on or off duty.

Claimant engaged in improper conduct while off duty. Significantly, in doing so, he made use of his status as a peace officer by falsely representing that he was engaged in a vice investigation and by unlawfully threatening to arrest someone. Under the circumstances, we conclude that claimant’s acts, although committed off duty, were in connection with his employment and were in violation of his obligations as a correction officer. Accordingly, he lost his employment through misconduct in connection therewith.

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

The decision of the administrative law judge is reversed. (January 11, 1979)

COMMENTS

  1. In this case the Appeal Board noted that it was bound by the findings of the hearing officer following a hearing held pursuant to Article 75 of the Civil Service Law, that claimant committed the offenses charged.

  2. Although not mentioned in the decision, criminal charges against claimant were dismissed. Thus, disqualification for misconduct may apply even though claimant’s acts do not result in a criminal conviction.




A-750-1874
Index 920B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 23, 1979

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

Appeal Board Decision 274,204

INSTRUCTIONAL CAPACITY: DEFINITION

In determining whether a claimant was employed in an instructional capacity, the nature of the services performed is controlling, not the job title. Thus, a teaching assistant employed by a school district, who tutored small groups of students, supplementing their regular classroom instruction, was employed in an instructional capacity and subject to Section 590.10.

Administrative Law Judge Decision: The initial determination of the local office holding claimant, a professional employee of an educational institution, ineligible to receive benefits effective May 29, 1978 during a period between two successive academic years or terms, because she has a reasonable assurance that she will perform services in such capacity for any such institution, pursuant to Section 590.10 of the Labor Law, is sustained.

Appealed By: Claimant

Findings of Fact: The claimant has been employed as a teaching assistant by a city school district since January 6, 1975. Through the use of textbooks, workbooks, and manipulative devices, the claimant worked with children in an effort to reinforce basic mathematical skills. She worked with students in small groups, supplementing the regular classroom instruction. Effective January 6, 1978 the claimant was tenured in her position. On June 7, 1978, the employer notified the claimant that it was continuing her services for the 1978-79 school year. The notice instructed the claimant to return to work on September 5, 1978. The claimant signed this notice on June 10, 1978.

In prior years, the claimant has worked through the following dates: June 20, 1975, June 16, 1976 and May 31, 1977. In 1978, the city school district continued to operate until June 23; however, the claimant last worked on May 31 due to budget restrictions. In the 1978-79 school year the claimant is scheduled to work through June 22, 1979 school year. She filed an original claim for benefits on June 1, 1978.

Opinion: The evidence establishes that claimant was employed in an instructional capacity by an educational institution. In determining whether she was employed in an instructional capacity the nature of the services which she performed is controlling. The claimant’s services were instructional in nature. On June 7, 1978, she was informed that her services would be continued by the school district. We conclude that this constitutes a reasonable assurance of employment. Accordingly since the claimant has a reasonable assurance of employment in an instructional capacity with an educational institution, her weeks of employment and remuneration with the educational institution are to be disregarded, as provided in Section 590.10 of the Labor Law. However, the claimant’s work history indicates that, for this claimant, the school year normally continues through the latter part of June. Prior to June 23, 1978 when the school’s 1977-78 school year ended, although the claimant was not working due to budget restrictions, she was not between academic years or terms as provided in the statute. Accordingly, we conclude that the claimant is eligible to receive benefits through June 23, 1978. Thereafter, since she is between academic years or terms and has a reasonable assurance of employment in the next academic year, she is ineligible to receive benefits.

Decision: The initial determination of the local office is modified to be effective June 24, 1978 and, as so modified, is sustained.

The decision of the administrative law judge is modified accordingly and, as so modified, is affirmed. (February 15, 1979)

COMMENTS

  1. This decision holds that a claimant may be employed in an instructional capacity even though he does not have a teacher’s license and that the controlling factor is the duties the person performed rather than the job title.

  2. The job duties of a "teaching assistant" as set forth in the regulations of the New York State Commissioner of Education are clearly instructional, and a claimant employed by a school district in that title is presumed to have worked in an instructional capacity. This presumption, however, should not be made for a claimant employed by a private school as a teaching assistant, or by any school; public or private, in a job title with variations such as teacher’s assistant, assistant teacher, etc. In such cases, a detailed description of claimant’s duties should be obtained before a determination is made. If any teaching activity is only incidental to the duties of attending to the children, and is rendered under the direct supervision and instruction of a licensed teacher, the claimant should be held to have been employed in a non-instructional capacity.

  3. A claimant employed in the title of "teacher’s aide" should be presumed to have been employed in a non-instructional capacity unless there is an indication or contention to the contrary, in which event the details of claimant’s duties should be ascertained.




A-750-1875
Index No. 920 A-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 30, 1979

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

Appeal Board Decision 277,066

NON-INSTRUCTIONAL EMPLOYEE: CLAIM BEFORE END OF TERM

A non-instructional employee whose work ceases prior to the end of the school term is not subject to the provisions of Section 590.11 until the term is over.

Administrative Law Judge Decision: The initial determination of the local office holding claimants, who are non-professional employees of an educational institution, ineligible to receive benefits effective June 26, 1978 for claimant M.E. and effective June 19, 1978 for claimant J.S., during a period between two successive academic years or terms because each has a contract which continues her services in such capacity for any such institution, as provided by Section 590.11 of the Labor Law, are overruled.

Appealed By: Employer

Findings of Fact: Each claimant was employed as a teacher’s aide by a school district during the 1977-78 school year which ended on June 23, 1978. Neither had any other employment. Each claimant is a member of the union representing the teacher’s aides in the district. The agreement between the union and the school district covered the period from July 1, 1977 through June 30, 1978. On June 22, 1978, the employer gave notice to each claimant, which stated that the school district was continuing her services for the 1978-79 school year. The notice requested that the aide acknowledge her intention to (renew) her employment on the first working day in September 1978 by signing and returning the notice prior to June 30, 1978. Each claimant signed and dated her notice on June 22, 1978 and returned it to the school district.

Claimant M.E. last worked on June 23, 1978. She filed an original claim for benefits effective June 26, 1978. Claimant J.S. last worked on June 16, 1978. She filed an original claim for benefits effective June 19, 1978.

Opinion: Section 590.11 of the Labor Law, insofar as pertinent, provides as follows:

"If a claimant was employed in other than an instructional, research or principal administrative capacity by an educational institution which is not an institution of higher education, the following shall apply to any week commencing during the period between two successive academic years or terms provided the claimant as a member of a collective bargaining unit has a written contract which continues his services in such capacity for any such institution or institutions for both of such academic years or terms or an individual contract to perform services for such period if he is not a member of a bargaining unit; and, during the period of any such contract, to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and the claimant has a contract, as above, that continues his or her services for the period immediately following such vacation period or holiday recess…"

The evidence establishes that each claimant is a member of a collective bargaining unit, which has a written contract with the school district, which covers the services of the claimants. Each claimant was notified that her services would be continued during the next school year. Although the term of the agreement ended on June 30, 1978, the parties are required to maintain the status quo of that written collective bargaining agreement during negotiations for continuance of the agreement. See Matter of Triborough Bridge and Tunnel Authority (District Council 37 and Local 1396) (5 PERB 3064 (1972). In view of this requirement of continuance of the agreement, we conclude that the collective bargaining agreement along with the notice of June 22, 1978 constitutes a written contract within the meaning of Section 590.11 of the Labor Law. Accordingly, each claimant’s weeks of employment and remuneration with the school district must be disregarded in determining entitlement to benefits during the summer recess.

Section 590.11 of the Labor Law does not preclude a claimant from being eligible for benefits during the regular school terms other than during a vacation period or a holiday recess. Accordingly, since claimant J.S. was released from her job prior to the end of the school year on June 23, 1978, the initial determination with respect to her must be modified to be effective June 26, 1978.

Decision: The initial determination of the local office holding claimant M.E., a non-professional employee of an educational institution, ineligible to receive benefits effective June 26, 1978, during a period between two successive academic years or terms because she has a contract which continues her services in such capacity for any such institution, as provided by Section 590.11 of the Labor Law is sustained.

The initial determination of the local office holding claimant J.S. a non-professional employee of an educational institution, ineligible to receive benefits, effective June 19, 1978, during a period between two successive academic years or terms because she has a contract which continues her services in such capacity for any such institution, as provided by Section 590.11 of the Labor Law is modified to be effective June 26, 1978 and, as so modified, is sustained.

The decision of the administrative law judge is reversed (January 19, 1979)

COMMENTS

This decision indicates that Section 590.11 does not apply to a week commencing during a fall or spring term, other than during an established and customary vacation period or holiday recess. Although the claimant in this case was laid off prior to the end of the term, the same principle would apply to a claimant who is scheduled to start work after the beginning of a term. In either case, however, it should be ascertained whether the claimant is receiving remuneration for the days in question, in order to resolve the issue of total unemployment.




A-750-1876
Index No. 1130-10
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 30, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Behavior Off Job

Appeal Board Decision 280,277

SENSITIVE POSITION

When a claimant is employed in a sensitive position dealing directly with the public, violation of a work rule prohibiting criminal, dishonest or immoral behavior which tends to discredit him or his employer, is misconduct in connection with employment, even if occurring off the job.

Administrative Law Judge Decision: The initial determination of the local office disqualifying the claimant, a former Federal employee filing for unemployment compensation under Chapter 85, Title 5 of the U.S. Code, from receiving benefits effective April 15, 1978 because she lost her employment through misconduct in connection therewith, is overruled.

The initial determination of the local office ruling that benefits be withheld from claimant effective April 15, 1978 through April 14, 1979 during the pendency of criminal proceedings following her indictment for a felony in connection with her employment, is sustained.

Appealed By: Employer and claimant

Findings of Fact: Claimant worked as a tax examiner for a federal agency for approximately five and one-half years. She was aware of the work rule, which states, in part, that "an employee may not engage in any criminal, infamous, dishonest, immoral or notoriously disgraceful conduct or any behavior, activity, association or relationship which tends to discredit himself or the service." During the latter part of her employment, claimant was indicted for the possession and sale of stolen property, a felony, because of this indictment, claimant was discharged on April 14, 1978 for violation of the aforementioned rule. In September 1978, the claimant pleaded guilty to a charge of criminal possession of stolen property in the third degree, a misdemeanor, in satisfaction of the indictment.

Opinion: The evidence now before the Board establishes that claimant violated the employer’s reasonable work rule forbidding criminal conduct which tends to discredit her or the employer. Claimant was a tax examiner, a sensitive position in which she dealt directly with the public. She admitted her criminal conduct when she entered a plea of guilty to the charge of criminal possession of stolen property in the third degree, a misdemeanor. Therefore, we conclude, that claimant’s violation of the work rule constitutes misconduct in connection with her employment.

In view of the foregoing, it is unnecessary to rule on the issue of the suspension of claimant’s benefits effective April 15, 1978 through April 14, 1979 pending the disposition of her indictment on a felony charge.

Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective April 15, 1978 because she lost her employment through misconduct in connection therewith, is sustained.

The decision of the administrative law judge is reversed. (February 23, 1979)

COMMENTS

  1. It is well settled that commission of a crime, although off the job, is misconduct in connection with employment, if the criminal conduct has a direct bearing on claimant’s fitness to perform his job, or continuing the employment would involve an unreasonable risk to property or to any person’s safety. (See Interpretation Service release A-750-1807 and examples).

  2. Actions off the job may be misconduct in connection with employment even if not criminal. This would be the case, for example, where claimant’s integrity is of the essence of his employment, or where his actions adversely affect the standing or reputation of the employer, because of the nature of the organization or business. Thus, in the present case claimant’s act, resulting in a misdemeanor conviction for possession of stolen property, was held to be misconduct in view of her position as tax examiner for a federal agency. In another recent case a corrections officer was subject to disqualification for misconduct in connection with employment when discharged for his action off the job, even though criminal charges for those actions were dismissed. (A-750-1872)

  3. The present decision emphasizes that claimant violated the employer’s reasonable work rule, of which she was aware, forbidding conduct tending to discredit the employee or employer. In an occupation where integrity is not the essence of the employment, and where it cannot be shown that a claimant’s behavior off the job adversely affected the employer, a disqualification for misconduct would generally be unsupported, despite the existence of such rule.

  4. For additional discussion, see Special Bulletin A-710-50, "Discharge for Arrest or Conviction", dated Sept. 16, 1988.



A-750-1877
Index No. 2010-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 23, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
SECTION 599
Basic Education Skills, Definition

Appeal Board Decision 285,232

HIGH SCHOOL EQUIVALENCY CERTIFICATE

A program leading to a high school equivalency certificate is not a course in basic education skills within the meaning of Section 599.

Administrative Law Judge Decision: The initial determinations of the local office denying claimant’s application for approval of vocational training pursuant to Section 599 of the law and holding claimant ineligible to receive benefits effective October 23, 1978, because he was not available for employment, are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The claimant, a laborer, worked for his last employer for several months until June 9, 1978, when he lost that employment under non-disqualifying conditions. He filed an original claim for benefits effective October 23, 1978, and was found eligible to receive benefits. Claimant was enrolled in an educational program leading to a high school equivalency certificate and was attending classes daily from 10:00 a.m. to 12:00 noon.. Claimant wanted to attain his high school equivalency certificate so he could enter college. He was in his final semester and anticipated his graduation within a few months.

From October 3, 1978 through November 27, 1978 claimant made four in-person job efforts. Thereafter, claimant averaged approximately one effort per day. Many of the job efforts claimant reported as made on different days, were made at establishments clustered on the same street and in many cases were contiguous.

Opinion: Section 599 of the Law, which sets forth requirements for approval by the Commissioner of a course for vocational and related training provides in part.

"…Notwithstanding any other provision of this article, a claimant shall not become ineligible for benefits because of his regular attendance at a vocational training course, or at a course in basic education skills which the commissioner has approved and continues from time to time to approve for the claimant…"

The threshold issue presented herein is whether enrollment in a non-vocational program leading to the receipt of a high school equivalency certificate is approvable for Section 599 training as a "course in basic education skills." We find that it is not. Basic education skills, as provided for in Section 599 of the Law, contemplate the ability to read, write and do simple arithmetic. Since, at the time claimant filed for 599 approval he had only two months remaining in his program to receive his high school equivalency certificate we officially notice that he had previously acquired the "basic education skills" as contemplated in the statute. Accordingly, we conclude that claimant’s course of study is not approvable.

In view of the foregoing, the issue of claimant’s availability must be determined. The credible evidence establishes that during the period in issue claimant made few job efforts. He averaged less than one effort per day. We note that many of his efforts reported by claimant as made on several different days, were made at locations in such close proximity with one another that they could have been made at the same time. Under the circumstances we hold that claimant’s efforts were meager, random and sporadic and do not evince a true attachment to the labor market. Accordingly, we conclude that he was not available for employment.

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

The decision of the administrative law judge is reversed. (May 11, 1979)

COMMENTS

  1. Section 599 provides that training may be considered for approval if it is either

    1. a course in basic education skills, or

    2. vocational training.

  2. This decision states that a course in basic education skills as contemplated by Section 599 is one which teaches how to read, write and do simple arithmetic. An educational program leading to a high school equivalency certificate does not meet this definition.

  3. There may be instances, however, where training to secure a high school equivalency certificate may be approved under Section 599 as vocational training. This would be the case where such training is the first phase of a pre-arranged vocational training program which is itself approvable under section 599, but which requires possession of a high school diploma or its equivalent as a condition of enrollment.




A-750-1878
Index No. 1605C-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 28, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Last Employment, Question of

Appeal Board Decision 284,249

OTHER WORK DURING TERMINAL LEAVE

A claimant who files for benefits after the effective date of voluntary retirement from public employment is subject to disqualification for quitting such employment, even though, while liquidating his leave time prior to retirement, he obtained other work which ended before the retirement date. Under these circumstances the employer from whom he retired is the last employer prior to filing the claim.

Administrative Law Judge Decision: The initial determination of the local office disqualifying the claimant from receiving benefits, effective October 12, 1978, because he voluntarily left his employment without good cause, is overruled.

Appealed By: Industrial Commissioner and employer.

Findings of Fact: The claimant was employed by a municipality as a sanitation worker for 30 years. He filed an application for voluntary retirement and pension which was approved. He was 56 years old. His last day of work was June 17, 1978. From June 19 through June 26, 1978, he liquidated his accrued overtime leave. From June 27 through July 12, 1978, he liquidated his accrued annual leave. From July 13 through October 11, 1978, he liquidated his terminal leave. He remained on the payroll through October 11, 1978 to cover all these leave liquidations. He commenced receipt of his pension thereafter, at the rate of $625.60 per month pending fixation of the final rate.

On June 19, 1978 claimant went to work as a parks laborer for a federal agency. He was employed there until September 24, 1978 when that employment terminated due to lack of work caused by closing of the park for the winter. Thereafter, he fully exhausted his leave credits, was retired, and filed a claim for benefits on October 18, 1978. He has no intention of withdrawing from the labor market.

Opinion: Although the last employer for which he actually performed work, labor and services was the Federal government, the claimant’s last employer prior to the filing of his claim for benefits was the municipality until October 11, 1978. The Court of Appeals has ruled that the employer-employee relationship continues while a government employee liquidates all his leave time prior to retirement (Matter of Berger, 41 NY 2d 1065 rev’g 53 AD 2d 730, rev’g Appeal Board 210,211).

Claimant admitted at the hearing that he went ahead with his retirement in order to collect his pension but without the intention of withdrawing from the labor market. Since at age 56, he could have continued working and his choice to retire was voluntary, this constitutes a voluntary leaving of employment without good cause.

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

The decision of the administrative law judge is reversed. (April 24, 1979)

COMMENTS

It is an established principal that a government employee (federal, state, county, city, etc.) carried on the payroll to liquidate leave credits is not totally unemployed. In such cases the employment relationship continues and the claimant is considered employed until the leave time is used up. In the present case claimant’s other employment ended on September 24, 1978 but his job for the municipality did not end until the liquidation of his leave on October 11, 1978. Thus the municipality was held to be claimant’s last employment. An opposite conclusion could have been reached only if the other job continued beyond October 11, 1978.




A-750-1879
Index No. 920 B-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 20, 1979

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

Appeal Board Decision 279,214

CAPACITY, DEFINITION

A claimant who was employed by a school in an instructional, research or principal administrative capacity, is subject to Section 590.10 if there is reasonable assurance of employment in any of those capacities.

Administrative Law Judge Decision: The initial determination of the local office holding that the weeks of employment and earnings of claimant D.M.H. in her base period, as a professional employee of an educational institution, cannot be used for entitlement purposes between successive academic years or terms, effective June 27, 1978, because she has a reasonable assurance of continuing to perform such services at such an institution in the next academic year or term, as provided in Section 590.10 of the Labor Law, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant worked as a school principal for a school district for four academic years, until June 30, 1978. As of that date, she was informed that her contract in that capacity would not be renewed. She was assured of a teaching position beginning in September 1978, for which she already had tenure. Claimant accepted the teaching position, although she would have preferred further employment as a school principal. Claimant filed her original claim for benefit, effective July 3, 1978.

Opinion: The credible evidence establishes that claimant worked in a "professional" capacity as defined under the statute during the 1977-78 school year and that she had accepted an offer of work which was also in a professional capacity beginning in September 1978. The fact that, as a school principal, her employment was administrative and that, as a teacher, it would be instructional is immaterial. Both administrative and instructional work are in the category of professional employment within the meaning of Section 590.10 of the Law. Since the claimant was offered work as a teacher in the next school year, we conclude that she has a reasonable assurance of employment in an instructional capacity, as provided under Section 590.10 of the Law. Accordingly, her weeks of employment and remuneration with the educational institution are to be disregarded, as provided therein.

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

The decision of the administrative law judge is reversed. (May 3, 1979)

COMMENTS

  1. Under Section 590.10 and 590.11 of the New York State Unemployment Insurance Law, employment for an educational institution falls into one of two general categories:

    1. instructional, research or principal administrative

    2. all other employment

  2. A school employee who performed duties falling in category (a) is potentially subject to Section 590.10 if there is reasonable assurance of employment in any job falling within that category. A school employee who performed duties falling in category (b) is potentially subject to Section 590.11 if he has a contract continuing his employment in any job falling in that category. Neither section applies if there is a crossover from category (a) to (b) or category (b) to (a).

  3. Examples of jobs in each general category may be found in Special Bulletin A-710-53, items II C and D.




A-750-1880
Index No. 920C-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 20, 1979

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

Appeal Board Decision 279,276

SUBSTITUTE TEACHER

A substitute teacher has reasonable assurance of employment and is subject to Section 590.10 when notified by a school that he will be retained on its active substitute list, even though he responds by stating that he is not interested in the job.

Administrative Law Judge Decision: The initial determination of the local office that the weeks of employment and earnings of claimant in his base period, as a professional employee of an educational institution, cannot be used for entitlement purposes between successive years or terms, effective June 24, 1978, because claimant has a reasonable assurance of continuing to perform such services at such an institution in the next academic year or term, as provided by section 590.10 of the law is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant filed an original claim for benefits effective July 10, 1978, establishing a base period beginning July 11, 1977 and ending July 9, 1978. During this base period claimant worked as a substitute teacher for S. & U. school districts on six occasions; he also taught full-time from July through August 1977, October through November 1977, and from January to June 23, 1978. In June 1978, S. school district sent claimant a notice requesting that he indicate by June 23, 1978 if he was interested in substitute teaching during the 1978-79 school year. Claimant responded that he was not. On or about July 5, 1978 U. school district notified claimant that he would be retained on its active substitute list. Claimant responded by stating that he would not be available for the 1978 fall semester. Claimant did not want to substitute teach as he preferred full-time employment. Claimant testified at the hearing of September 11, 1978 that, as he had not yet found full-time work, he had asked S. school district to place him on their substitute list. His request was granted.

Opinion: The credible evidence established that during the 1977-78 school year, claimant worked as a substitute teacher for two school districts; he also taught full-time during this period, through June 23, 1978. In June and July, S. and U. school districts, respectively, notified claimant that substitute work was available for the 1978-79 school year. U. school district specifically indicated that claimant was to be retained on its list of active substitute teachers.

This is sufficient to create a reasonable assurance, as provided in Section 590.10 of the Labor Law. Neither the specific number of days on which claimant might be called to teach, nor his willingness to do so is controlling. Reasonable assurance depends upon the availability of the position to claimant. It is immaterial that claimant responded in the negative to the notices sent to him by S. and U. school districts because he preferred full-time employment. A claimant should not be able to control his entitlement to benefits by having his name removed from the active substitute list for the summer and then by having it restored in the fall, when he could not obtain full-time employment, as a means of establishing that he is available for work. It is likewise immaterial that claimant taught in a full-time capacity for the greater part of 1977-78. It was work in an instructional capacity and he has a reasonable assurance of employment in an instructional capacity for the 1978-79 school year. Accordingly, we conclude that claimant’s weeks of employment in an instructional capacity and his remuneration therefrom with each of his base period educational institutional employers are to be disregarded, as provided in Section 590.10 of the Law. The claimant is ineligible to receive benefits during the summer recess.

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

The decision of the administrative law judge is reversed. (May 14, 1979)

COMMENTS

  1. This decision holds that a substitute teacher may not evade Section 590.10 by requesting removal from a school’s active substitute list. In the Appeal Board’s words: "Neither the specific number of days on which claimant might be called to teach, nor his willingness to do so, is controlling. Reasonable assurance depends upon the availability of the position to claimant."
  2. The Board has also upheld a denial of benefits under Section 590.10 to a substitute teacher who failed to sign, date and return a form letter from a school district stating that she would be included on the active substitute list for the next school year (A.B. 276,680).
  3. The rule of this release applies only to substitutes. A regular school employee who rejects an offer of continuing work or notifies the employer that he will not return to work for the next academic year or term, potentially is subject to disqualification for voluntary leaving.



A-750-1881
Index No. 1010-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
HEARINGS AND APPEALS
Timeliness

Appeal Board Decision 281,098

DETERMINATION UNDER SECTION 590.10 OR 590.11

A determination under Section 590.10 or 590.11 is not an ongoing one. Thus, a hearing request made more than 30 days after issuance of such determination does not give an administrative law judge jurisdiction to decide the case on its merits.

Administrative Law Judge Decision: The initial determination of the local office holding that the weeks of employment and earnings of each claimant in her base period, as a non-professional employee of an educational institution, cannot be used for entitlement purposes between successive academic years or terms, effective June 8, 1978 in the case of claimant T.A.P. and effective June 24, 1978 (inadvertently stated by the judge to be effective June 28, 1978) in the case of claimant N.J.M., because each has a contract, individually or as a member of a collective bargaining unit, which continues her services in such capacity at an educational institution below college level in the next academic year or term, as provided in Section 590.11 of the Law, is modified to be effective through August 11, 1978; and (2) the objection of the Industrial Commissioner that the said initial determinations remain in effect because each of the claimants failed to request a hearing thereon within the statutory period, is overruled. No appeal was taken from that portion of the judge’s decision which held that the initial determination of the local office, pursuant to Section 590.11 of the Law, as modified to be effective through August 11, 1978 remain in effect because each of the claimants failed to request a hearing within the statutory period.

Appealed By: Industrial Commissioner

Findings of Fact: The claimants were employed as food service helpers by a school district during the 1977-78 academic years. By initial determinations, dated July 3, 1978 in the case of claimant T.A.P. and dated July 12, 1978 in the case of claimant N.J.M., the local office held that the weeks of employment and remuneration of each, as a non-professional employee of an educational institution, could not be used for entitlement purposes under Section 590.11 of the Labor Law. The notice of each hearing, the procedures to follow, and the 30-day statutory period within which such request for a hearing had to be made. Neither claimant filed a request for a hearing until September 11, 1978. When asked at the local office why she had not filed a timely request for a hearing in accordance with the instructions on the notice of determination, claimant T.A.P. replied: "I did not read the section concerning my right to a hearing." Claimant N.J.M. answered: "I did not know just what to do."

Opinion: The Industrial Commissioner has made the preliminary objection that in each case, the claimants request for a hearing was untimely and that the judge had no jurisdiction to rule on the merits. The judge held that a determination under Section 590.11 of the Labor Law, is analogous to a determination of availability for or capability of employment, which is an ongoing determination and is reviewable 30 days prior to the date of the hearing request. We do not agree with his conclusion. An initial determination under Section 590.11 of the Law is a ruling as to entitlement as of the effective date of the claim. The record establishes that each claimant failed to make a timely request for a hearing. There is no basis on which the judge would extend the time fixed (Section 620.1, Labor Law). Accordingly, the judge had no jurisdiction to rule on the merits of the initial determinations herein and each must remain in effect.

Decision: The initial determinations of the local office remain in effect.

The decision of the administrative law judge is reversed. (June 1, 1979)

COMMENTS

A determination issued under Section 590.10 or 590.11 is a ruling as to entitlement as of the effective date of the claim and is not analogous to determinations of availability for or capability of employment, both of which are ongoing determinations and reviewable 30 days prior to the date of the hearing request. (A-750-938)




A-750-1882
Index No. 920B-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1979

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

Appeal Board Decision 281,305

SCHOOL COUNSELOR

Employment as a counseling intern at a college is employment in an instructional capacity, within the meaning of Section 590.10.

Administrative Law Judge Decision: The initial determination of the local office, holding that the weeks of employment and earnings of claimant in his base period, as a professional employee of an educational institution, cannot be used for entitlement purposes between successive academic years or terms, effective July 28, 1978, because claimant has a reasonable assurance of continuing to perform such services at such an institution in the next academic year or term, as provided in Section 590.10 of the Law, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant worked from June 13, 1977 through June 9, 1978 for a branch of the State University as a counseling intern. Claimant had a one-year contract and was not advised by the university that his employment would continue for the 1978-79 school year. On July 28, 1978, the claimant received a letter from another university offering him employment as a counselor for the academic year from September 1, 1978 through June 30, 1978. He accepted this offer on August 2, 1978 and commenced work on September 1, 1978. Claimant filed an original claim for benefits effective June 12, 1978.

Opinion: The claimant worked in an instructional capacity for a university during the 1977-78 school year. On July 28, 1978, he was offered employment by another university in a similar capacity for the following academic year which he accepted. This creates a reasonable assurance of re-employment in an instructional capacity, as provided in Section 590.10 of the Labor Law. Since the claimant has a reasonable assurance of employment in an instructional capacity with an educational institution, his weeks of employment and remuneration with another educational institution are to be disregarded as provided in Section 590.10.

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

The decision of the administrative law judge is reversed. (May 8, 1979)

COMMENTS

  1. This decision is a recognition that the job of a counselor at an educational institution is not only professional employment, but is also instructional in nature. This holding by the Appeal Board will apply to guidance counselors in secondary schools.
  2. The date of "reasonable assurance" under Section 590.10 is established by the date of receipt of an offer, not by the date of acceptance. Thus, in this case, claimant was held to have reasonable assurance of employment on July 28, 1978, the date he received an offer from another university even though it was not until August 28, 1978 that he notified the employer of his acceptance.



A-750-1884
Index No. 1505E-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 3, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION
Relative of Employer

Appeal Board Decision 285,228

FALSE STATEMENT ON ORIGINAL CLAIM

A negative response to the question whether claimant is related to persons for whom he had worked in the past twelve months was held to be a wilful false statement when claimant was employed by a corporation in which is relatives were officers and major stockholders.

Administrative Law Judge Decision: The initial determination of the local office holding that the claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of four effective days was imposed as a penalty in reduction of her future benefit rights, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant worked from December 26, 1977 through June 2, 1978, as a tax preparer for a corporation which operates a tax preparation service. She was then laid off due to lack of work. Claimant failed an original claim for benefits effective June 5, 1978. She answered "No" to the question "Are you related to in any way to any of the persons for whom you worked or performed any services during the past months?"" Claimant'’ husband and brother-in-law each own 25 percent of the stock in the corporation herein. Claimant’s husband was the secretary of the corporation and her brother-in-law was vice president.

Opinion: The credible evidence establishes that claimant did not answer truthfully in responding to the question on her original claim form concerning whether she was related to persons for whom she had worked in the past 12 months. Claimant’s husband and brother-in-law are each officers and one-quarter shareholders in the corporation herein. Accordingly, claimant’s negative reply indicating that she had not worked for anyone to whom she was related with during the previous 12 months was a wilful misrepresentation made to obtain benefits and justified the imposition of the forfeit penalty herein.

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

The decision of the administrative law judge is reversed. (June 4, 1979)

COMMENTS

  1. The original claim for benefits requires claimant to provide the local office with pertinent information regarding base period employment. Question: "Are you related in any way to any of the persons for whom you worked or performed services during the past twelve months?", specifically inquires as to any relationship to his employers. In a case where a claimant responds in the negative although a relationship does exist, an issue arises as to whether a full and complete disclosure was made, one which would enable the local office to make a proper determination. ""it is the responsibility of all claimants to make a full and complete disclosure…of all pertinent facts which might be determinative of their rights to benefits." (Matter of Marder, 16 AD 2d 303, not reported).
  2. In the present case although the corporation was the employing entity, claimant’s husband was one of the principals, and under such circumstances claimant should have made a full and complete disclosure of her relationship.
  3. In another recent case, where claimant worked for his father-in-law, he answered in the negative the question pertaining to his relationship to any person he worked for during his base period, contending that he understood the question to refer only to blood relationships. The Board rejected this contention, holding that the question did not contain any such limitation, and though nominally employed by the corporate employer, in common parlance, he worked for his father-in-law. (AB 266,589, not reported)



A-750-1885
Index No. 1275A-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 10, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Training and Experience

Appeal Board Decision 285,227

SUBSTITUTE TEACHER

A teacher licensed in a specific academic area does not have good cause to refuse a limited teaching assignment not within the area of her license or training where the school is willing to accept her for the assignment.

Administrative Law Judge Decision: The initial determinations of the local office disqualifying the claimant from receiving benefits effective September 18, 1978 and September 19, 1978, because, without good cause, she refused employment for which she is reasonably fitted by training and experience, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The claimant, a teacher, has New York State certification to teach all subjects from nursery through the sixth grade. She last worked on June 23, 1978 when school closed for the summer. She filed an original claim for benefits on June 27, 1978. During the period of her claim she was registered on the list of substitute teachers from which substitutes were placed in the school district for which she had worked. Placements were made by the employment service. On September 18, 1978 claimant was referred to employment as a substitute teacher of a class in health education.

Although she has no training and has not been licensed to teach in a high school, the school district was permitted to hire a teacher to work in a high school up to forty days a year, regardless of the license held. On September 19, 1978 claimant was referred to employment as an art teacher in elementary school. Claimant refused both referrals because she was not trained for these jobs and was not licensed to teach these specialties. Both schools were willing to accept claimant for the one-day assignments.

Opinion: We do not agree that claimant can limit herself to teaching only in the areas for which she is licensed. Since she is licensed to teach and the school district was willing to use her for a limited assignment she did not have good cause to reject either job offer. A teacher should teach, whenever a job is offered, even if not trained for a specific class of instruction. It is immaterial that claimant was not trained in either specialty. Accordingly, we hold that claimant’s refusals of employment were without good cause.

Decision: The initial determinations of the local officer are sustained.

The decision of the administrative law judge is overruled. (May 24, 1979)

COMMENTS

  1. This decision accords with precedent. The Appeal Board and the courts have held that when offered a job need not match a claimant’s skills with exact precision, but need only be one "for which he is reasonably fitted by training and experience..."
    (Underscoring added). Thus, the Appeal Board held in the present case that "A teacher should teach, whenever a job is offered…"
  2. In the present case claimant had New York State certification to teach all subjects from nursery through the sixth grade, and refused work as a substitute teacher in a high school. The Board held the refusal to be without good cause.
  3. Similarly, a licensed physical education teacher working primarily in high schools who refused work as a substitute teacher in an elementary school, was also held to have refused employment without good cause. A teacher licensed for kindergarten through sixth grade was held to have refused employment as a seventh grade substitute without good cause (A.B. 273,473 and A.B. 282,502 not reported).



A-750-1887
Index No. 1610-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 14, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Provoked Discharge

APPELLATE DIVISION DECISION

Matter of Stewart Dounn

ACTIONS LEAVING THE EMPLOYER NO CHOICE

When an employer has no choice but to discharge an employee because his conduct results in his employment no longer being permitted by law or governmental regulation, the termination is a voluntary leaving of employment by provoked discharge. It is immaterial that the conduct resulting in dismissal was not in connection with the employment from which he was discharged.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 31, 1978, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits, effective April 7, 1978, because he voluntarily left his employment without good cause by provoking his discharge.

Claimant was employed as a margin clerk by a securities brokerage company until April 5, 1978. In June 1977 he was indicted by a federal grand jury on 77 counts of mail fraud, securities fraud, conspiracy and the maintenance and submission of false business records. These charges resulted from conduct during claimant’s prior employment as a margin supervisor with another securities firm. On April 5, 1978 he pleaded "no contest" to the specified charges. As a consequence of Securities Exchange regulations and Federal laws disqualifying employees convicted of criminal acts from employment in the securities industry, claimant was deemed to have provoked his discharge.

We have consistently held that the doctrine of provoked discharge is appropriately applied when, as here, an employee voluntarily engages in conduct which leaves the employer no choice but to discharge him [Matter of Michael (Long Island College Hospital – Ross), 60 AD 2d 438, not. For lv. To app. den. 45 NY 2d 708], and it is immaterial that the conduct resulting in the discharge was not in connection with the last employment [Matter of Goldenthal (Levine) 50 AD 2d 658]. Claimant’s contention that the board’s decision is violative of the Human Rights Law (Executive Law, Sec. 296, subds. 14, 15) is without merit. Where the bar to employment is imposed by law (see Correction Law, Sec. 751), the provisions of the Human Rights Law are not applicable.

Decision affirmed, without costs. (July 19, 1979)

COMMENTS

  1. In Matter of DeGrego (39 NY 2d 180; A-750-1809), the Court of Appeals limited the doctrine of provoked discharge to those instances "where an employee voluntarily engaged in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him." The court, in citing its prior decision in Matter of James (34 NY 2d 491; A-750-1775), made it clear that provoked discharge would be sustained only where "the employer has no range of discretion but was compelled to terminate employment." Thus, it is clear that employee conduct must be voluntary, must transgress a legitimate known obligation and must leave the employer with no choice but to discharge the employee before the doctrine of provoked discharge may be invoked.
  2. In the present case claimant engaged in was convicted of conduct which was criminal, in violation of Securities and Exchange Commission regulations and Federal laws, and that conviction of such criminal acts would disqualify him from employment in the securities industry, leaving the employer no choice but to discharge him. The acts engaged in any claimant occurred before his employment with his employer.
  3. Although it is generally unlawful to discharge an employee because of a criminal conviction occurring either before or after commencement of the employment, the Court held in this case that; "where the bar to employment is imposed by Law, the provisions of the Human Rights Law are not applicable.
  4. The rule of the present case may be applied to other situations where an employer is compelled to discharge an employee. For example, the Appellate Division upheld a disqualification for voluntary quit in the case of an attorney discharged by a law firm because of his disbarment for an offense he committed before hire. (Appellate Division, Matter of Goldenthal, 50 AD 2d 658, 1975; not reported). In another case, the Appeal Board sustained a disqualification for voluntary quit in the case of a security guard convicted of a crime more than 20 years previously, and because his employment with a security agency was barred under the General Business Law (A.B. 235,214; not reported).



A-750-1888
Index No. 1460D-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 28, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
Total or Partial Unemployment

Appeal Board Decision

BACK PAY AWARD COMPENSATING FOR PARTIAL PERIOD OF UNEMPLOYMENT

When a claimant, separated from his employment, subsequently receives a back pay award which is not equal to all of his lost wages for the period of his unemployment, he is not totally unemployed for that part of the period of unemployment, commencing immediately after the separation which is represented by the number of weeks for which he received back pay. The number of weeks to which the award is allocated is determined by dividing the award by the claimant’s average weekly wage.

Administrative Law Judge Decision: The initial determination of the local office holding the claimant ineligible to receive benefits effective November 4, 1973 through April 21, 1974 because he was not totally unemployed and charging him with an overpayment of $1,556.25 in benefits, ruled to be recoverable, is modified to hold that claimant is ineligible to receive benefits three days in each week during the said period and to reduce the amount of the recoverable overpayment accordingly. Claimant does not appeal insofar as the decision is adverse to him.

Appealed By: Industrial Commissioner

Findings of Fact: The claimant was employed as a warehouseman. From September 10 through October 1, 1973, there was a labor dispute between the employer and several employees, including the claimant. The claimant last worked on September 7, 1973. He filed an original claim for benefits on November 8, 1973. He was credited with 44 weeks of employment and earnings of $7,040. He received a total of $1,566.25 in benefits from November 4, 1973 through April 21,1974.

The National Labor Relations Board (NLRB) found that the employer had engaged in an unfair labor practice and ordered the employer to make whole the claimant and others similarly situated. The NLRB determined that $4,898 in back pay was due to the claimant for the period from October 1, 1973 through June 30, 1974. This amount reflected the amount of gross back pay, less interim earnings by the claimant. The United States Court of Appeals for the Second Circuit entered a consent judgment enforcing the back pay provisions of the Board order. Thereafter, the employer objected to the amount of the back pay, including the amount due to the claimant. This objection was settled between the NLRB and the employer. Pursuant to the settlement, the claimant received a gross award of $3,288 in back pay.

Opinion: Since no appeal was taken from that portion of the decision sustaining the initial determination of the local office that the claimant was not totally unemployed on three days in each week during the period for which he received back pay and sustaining the initial determination that claimant was overpaid for such days and that the overpayment is recoverable, it is the law of the case.

The issue before the Board involves the method to be used in allocating back pay award to the weeks of the claimant’s unemployment. The local office found that the claimant had received a back pay award for the period of his unemployment and was therefore not totally unemployed throughout the period. The administrative law judge determined that the back pay which claimant actually received was three quarters of his full back pay. He therefore, modified the initial determination to be effective three days in each week. In the first statement submitted to this Board on behalf of the Industrial Commissioner, it was contended that the back pay was for a period of 39 weeks, three calendar quarters. The amount of back pay was therefore an average of over $83 a week. Since this exceeded the maximum benefit rate of $75 then payable to any claimant, the Industrial Commissioner contended that Section 523 of the Labor Law applied and that no effective days were deemed to occur in any of the weeks. We conclude that each of these methods is incorrect.

Based on the number of weeks and the amount of remuneration with which the claimant was credited when he filed his original claim for benefits, his average weekly wage was $160. The Board has previously held that the back pay award is to be divided by the average weekly wage. This will establish the number of weeks for which the claimant received back pay (Appeal Board 31,113 and 32,310; see also Matter of Steward, 279 App. Div. 500, aff’g Appeal Board 26,76). Accordingly, we conclude that the claimant received back pay for 23 weeks. Since the period of the award begins on October 1, 1973, we conclude that he received back pay for each week beginning with the statutory week ending October 7, 1973 through the statutory week ending February 17, 1974. This is true even though the claimant did not file his original claim for benefits until November 8, 1973. Accordingly, the claimant was not eligible to receive benefits through February 17, 1974. He was overpaid benefits of $1,012.50 through that date. These benefits were recoverable, pursuant to Section 597.4 of the Labor Law.

Decision: The initial determination of the local office holding the claimant ineligible to receive benefits effective November 4, 1973 through April 12,1974 because he was not totally unemployed and charging him with an overpayment of $1,556.25 in benefits, ruled to be recoverable, are modified to be effective from November 4, 1973 through February 17, 1974 and to a recoverable overpayment of $1,012.50 and, as so modified, are sustained.

The decision of the administrative law judge, insofar as appealed from, is modified accordingly and, as so modified, is affirmed. (September 25, 1979)

COMMENTS

"Back pay" awards that do not take into account the amount of unemployment insurance benefits received by the claimant during the period of unemployment constitute retroactive payments of remuneration (Labor Law, Section 597.3). In such event a claimant is not totally unemployed only for that period of unemployment represented by the number of weeks for which he received back pay.

Interpretation Service (Appeal Board Decision 31,113-52, A-750-1125) sets forth that total unemployment does not exist during a period for which "back pay" awards are made. There the Appeal Board held that: "The $100.00 award to claimant bore no reasonable relationship to and did not compensate claimant for loss of wages suffered during the ten week period of unemployment, that there was no basis for the initial determination that claimant received "back pay" covering the entire period." The Board held that the most that could be said was that claimant received the equivalent of the amount of wages he would have earned in one week and one day.

In the present case the Appeal Board has affirmed the principle of establishing the number of weeks for which back pay is received by dividing the amount of the award by the average weekly wage. (See Matter of Stewart, 279, AD 500, aff’g. A.B. 26,776, not reported; and A.B. 32,310, not reported)

Ascertaining the average weekly wage should be accomplished with relative ease by referring to the employment and wage data used in computing the benefit rate.

In the present case the back pay award stemmed from a decision by the National Labor Relations Board. The source of the award is irrelevant. The rule of this release applies to awards from arbitrators or by private agreement of the parties, as well.




A-750-1889
Index No. 1320C-13
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 29, 1979

INTERPRETATION SERVICE – BENEFIT CLAIMS
Industrial Controversy
Unemployment due to

Appeal Board Decisions 291,699; 292,284; 292,637

SHAPE-UP WORKERS IN A CONTINUOUS EMPLOYMENT RELATIONSHIP

Where an employee, who obtains employment by shaping-up, has established a pattern of regular, substantial and frequent employment with an employer by obtaining work virtually every shift for which he shaped-up, a regular course of employment exists. Thus, such an employee, not hired because of the existence of an industrial controversy, is subject to a suspension for loss of employment because of the controversy.

A.B. 291,699

Administrative Law Judge Decision: The initial determination of the local office holding the claimant eligible to receive benefits effective August 21, 1978 without any disqualifying conditions is sustained.

Appealed By: Employer

Findings of Fact: The claimant, a truck driver, filed for benefits effective August 21, 1978 and indicated on his application that he last worked on August 8, 1978 and that he was no longer working for his last employer, a newspaper, because of a strike in the industry. The local office ruled claimant eligible to receive benefits without disqualifying conditions, and determined that, because claimant was a shape-up workers, he would not be subject to the seven week suspension of benefits imposed on a claimant who lost his employment because of a strike or industrial controversy in the establishment in which he was employed.

The claimant worked for the employer almost exclusively for more than five years. He was classified as an "extra" and was number 31 of 84 on the list of extras as with the highest priority in this establishment. In order to retain his place on that list, the claimant was required to shape up for six shifts per week, or work five shifts per week. During the last several years of his employment, claimant worked over 220 days a year for this employer.

The newspaper strike, which began on August 9, 1978, ended in November 1978. Claimant thereupon returned to work with his former employer.

Opinion: The credible evidence now before the Board establishes that the claimant worked virtually every shift for which he shaped up and for several years had worked more than 200 days per year for this employer. Even though he may be classified as an "extra," or referred to as a shape-up worker, the evidence establishes that a regular course of employment existed between the employer and the claimant. But for the strike on August 9, 1978, he would have continued to work for the employer, without interruption. We therefore conclude that claimant is subject to a seven week suspension of his benefits, pursuant to Section 592 of the Labor Law, because he lost his employment because he lost his employment because of an industrial controversy in the establishment in which he was employed [Matter of Lessner, 36 AD 2d 1 (1971)]

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

The employer’s objection is sustained.

The accumulation of benefit rights by the claimant is suspended during a period of seven consecutive weeks effective August 10, 1978 on the ground that he lost his employment because of an industrial controversy in the establishment in which he was employed.

The decision of the administrative law judge insofar as appealed from, is reversed. (August 2, 1979)

A.B. 292,284

Administrative Law Judge Decision: The revised initial determinations of the local office holding the claimants R.L., W.L., and R.H. eligible to receive benefits, effective August 14, 1978, August 21, 1978 and August 14, 1978 respectively, without any disqualifying conditions are sustained.

The initial determinations of the local office suspending the accumulation of benefit rights by the claimants A.L. and B.F. effective August 10, 1978 through September 27, 1978, because they lost their employment due to an industrial controversy in the establishment in which they were employed, remain in effect because the claimants A.L. and B.F. failed to request a hearing thereon within the statutory period; and the said initial determination of the local office as to claimant J.M. is sustained.

Appealed By: Claimants (A.L., B.F., J.M) and Employer

Findings of Fact: The claimants were employed by a large metropolitan daily newspaper as journeyman pressmen and junior pressman in its printing plants. R.L. was a regular staff members of the employer’s work force. The others were "shape-up" employees. All are members of the union local which has jurisdiction over their trade in the area and which has jurisdiction over their trade in the area and which was in contractual relations with their employer. R.L. did not have to shape-up to obtain his daily work assignment; the others shaped-up daily at about 8:00 p.m. at the employer’s plant in New York City. They were assigned to work that was available according to their seniority on the employer’s established hiring list. This seniority is established by the date upon which they were assigned to the newspaper by the union and were accepted by the employer for inclusion on its shape-up-hiring list, established by agreement with the union. If they reported to the daily shape-up, they had to be hired, in such order of seniority, before any pressman, who was not on the list, could be hired. The established list was usually exhausted at each shape-up and the employer had to hire pressman who were not on the list, and who had appeared at the shape-up, in order to fill all the pressman positions that were needed for printing the daily editions of the newspaper.

On August 9, 1978, the employer posted new work rules affecting the operations of its pressroom, to which the union objected because they could effect a reduction in staff. The union called a strike against the newspaper, sometime between 7:00 p.m. and 7:30 p.m. on August 9, 1978. The newspaper, immediately suspended publication for the duration of the strike, which was not settled until early in November 1978. All of the claimants obeyed the orders of their union and went out on strike. All except A.L. filed claims for benefits, effective various dates in August 1978. A.L. filed a claim on August 16, 1978 which was later made effective September 25, 1978. The respective local offices issued initial determinations suspending the accumulation of benefit rights of all the claimants, effective August 10 through September 27, 1978. The initial determinations in respect to claimants R.L., W.L., R.K., and R.H., (Appeal Board 292, 284, 292,285, 292,286 and 292,947), were withdrawn by the Industrial Commissioner at the first hearing before the administrative law judge and these claimants were ruled eligible to receive benefits, without any disqualification or suspension. The employer’s representative at that hearing objected to such withdrawals and the subsequent hearings were held on those objections.

The initial determination in respect to claimant A.L. was issued on August 17, 1978, since his original claim was actually filed on August 16, 1978. For some reason the local office later made the claim effective September 25, 1978. He requested a hearing thereon on November 14, 1978.

The initial determination in respect to claimant B.F. was issued on August 16, 1978. He had filed his original claim on August 15, 1978. He requested a hearing on October 10, 1978.

Opinion: The issue herein is now new. The Board and the Courts have previously considered whether "shape-up" workers are subject to the suspension of their benefit rights under Section 592.1 of the Law, after they lost their employment due to an industrial controversy in the establishment in which they were employed.

Matter of Burger (303 NY 654, aff’g 277 App. Div. 234, aff’g Appeal Board 19,311) dealt with the question of shape-up workers in the shipping industry. The time of that strike was 1948. These shape-up workers had no seniority. All were laid off before the strike. The Court of Appeals did not pass on the issue whether the regular pattern of work of longshoremen, checkers and harbor masters, viewed over a reasonable period of time and in relation to any pertinent specific union contract constituted "employment" within the meaning of the Law.

In Matter of Crerand (46 AD 2d 822, aff’g Appeal Board 171,167 – 171182) the longshoremen were required to shape-up at the Waterfront Commission hiring hall where they had a daily seniority set-up; however, they could be assigned to different days.

In Matter of Lessner (36 AD 2d 1, aff’g Appeal Board 99,726 et al) a different situation existed. Most of the workers had acquired seniority with a particular pier where the struck shipping lines operated or had seniority with a particular shipping line by virtue of a regular course of employment with such employer. Each pier was a separate establishment. Those shape-up workers at the pier who were found to have a regular course of employment with one of the struck shipping lines were held subject to the statutory suspension of their benefit rights.

Burger, supra, is not controlling because seniority was not a factor in hiring, as in the instant case.

Crerand, supra, is likewise not controlling because those workers could be assigned to any of a number of employers, rather than to a specific employer as in the instant cases.

However, the cases now before us are comparable to those claimants in Lessner, supra, who shaped up daily and were found to have a regular course of employment with a specific employer. The claimants herein shaped up daily at the newspaper plant of this employer and worked only for this employer. Each was assigned to an available job according to his seniority on the hiring list established by agreement between the employer and the union. Seniority was established by the date on which a person was assigned to this newspaper by the union and was accepted by the employer for inclusion on the shape-up-hiring list. If a pressman reported to the daily shape-up, he had to be hired in the order of his seniority, before any pressman who was not on the seniority list could be hired. The established hiring list was usually exhausted at each shape-up, and even pressmen not on the list were hired in order to fill all pressman jobs required for publication.

The facts herein are not disputed. We note that recently, in Appeal Board 292,637, we considered the same seniority shape-up system as existed herein and concluded that a claimant whose seniority placed him third highest on the employer’s shape-up list, thereby assuring him of work on any day he wished to work, was subject to the statutory suspension of his benefits.

Accordingly, we conclude that all of the claimants herein were subject to the suspension of their benefit rights, as originally determined. The withdrawal of the original initial determinations in the cases of claimants R.L., W.L., R.K. and R.H. cannot stand. There is merit to the employer’s objections to the revised initial determinations of their eligibility. In respect to claimant J.M., the original initial determination was not revised and it must be sustained.

Finally, claimants A.L. and B.F. did not request hearings until more than 30 days after the initial determinations were issued to them and they must remain in effect. The judge had no jurisdiction to rule on them because of the failure of claimants to make a timely request for a hearing. Since the claim of A.L. was later made effective September 25, 1978, only three days of his claim were affected thereby.

Decision: The revised initial determinations holding claimants R.L., W.L., R.K. and R.H. eligible to receive benefits are overruled.

The employer’s objections are sustained.

These claimants are subject to the suspension of the accumulation of their benefit rights, effective August 10 through September 27, 1978, because they lost their employment due to an industrial controversy in the establishment in which they were employed.

The decision of the administrative law judge in these four cases is reversed. (A.B. 292,284, 292,285, 292,286 and 293,947).

The initial determinations as to the claimants A.L. and B.F. remain in effect because they failed to make a timely request for a hearing.

The decision of the administrative law judge in those cases is affirmed (Appeal Board 287,247 and 287,248).

The initial determination as to the claimant J.M is sustained.

The decision of the administrative law judge in that case is affirmed (Appeal Board 287,249). August 30, 1979

A.B. 292,637

Administrative Law Judge Decision: The revised initial determinations of the local office suspending the accumulation of benefit rights by the claimant during a period of seven consecutive weeks effective July 2 through August 19, 1978 on the ground that he lost his employment because of an industrial controversy in the establishment in which he was employed and charging him with an overpayment of $575 in benefits, ruled to be recoverable; is overruled. The initial determination holding that claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of his future benefit rights, is modified to reduce the forfeiture to four effective days. Claimant did not appeal insofar as the decision was adverse to him.

Appealed By: Employer

Findings of Fact: The claimant, a cement handler and mixer, was employed for over 25 years by a firm specializing in the preparation and delivery of cement, mixed in transit, to various construction companies for use at contraction sites. He is a member of long standing of the union which is in contractual relations with the employers in that industry. He worked on shape-up basis, governed by the seniority of workers for the particular employer for which they usually worked. He was the third man in seniority on the overall list of the employer’s work staff, but was fourth man in seniority at the particular location where he usually worked. The first place on the seniority list was held by the union shop steward at that site, regardless of that individual’s actual seniority. Because of his seniority, the claimant was invariably assigned to work on all days that he shaped-up for work at the site. In the year prior to July 2, 1978, he had been unable to work on only about 25 to 30 days, and then because there was no work at all, usually because of adverse weather conditions.

On June 30, 1978, the contract between the employer’s association to which the employer belonged, and the unions representing the operating engineers and teamsters expired and these unions refused to let their members continue working for the employers while negotiations for a new contract ensued. Members of these unions worked for the claimant’s employer at the site where the claimant usually shaped-up. Though no pickets appeared at the work site, the engineers and teamsters did not report for work and, without them, no work could be performed by others. The claimant’s union had a contract with the employer’s association, which had been signed on June 1, 1978, and there was no controversy between it and the employer.

On July 2, 1978 the claimant reported to his usual work site to shape-up for work, but there was no work to be performed and no shape-up called for by the employer. He did not work thereafter. On July 6, 1978, he filed an additional claim for benefits. He reported that June 30, 1978 was his last day of work for the employer and that he had been laid off for lack of work. He also reported on the claim form that there was no labor dispute in any place where he had worked in the prior eight weeks. Thereafter, he was paid a total of $575 in benefits through August 13, 1978. He went to work for another employer, commencing on August 14, 1978, having been sent there by his union, and worked for that employer for the next four weeks. He returned to his usual employer as son as that firm had work for him.

Opinion: The administrative law judge sustained the initial determination that the claimant wilfully made a false statement to obtain benefits, and reduced the forfeit penalty to four days because she ruled that the claimant was not overpaid benefits. Since claimant did not appeal from the judge’s decision insofar as this determination was

sustained, it is the law of the case, and the only issue in respect thereto is the proper measure of the forfeiture to be imposed.

The judge ruled that the claimant was not subject to the suspension of his benefit rights and was not overpaid because he was a shape-up worker and such employment terminates each day at the end of the work assignment. While this may have been true after the decision of the Court in Matter of Burger, (277 App. Div. 234, aff’d 303 N.Y. 654) based on the longshoreman’s hiring system then in use, this broad rule has since been limited by the Court in Matter of Lessner, (36 A.D. 2d 1), wherein the Court said, at page 4:

"Most of the claimants herein had acquired seniority rights with the piers at which the respondent shippers were struck"

"The record contains sufficient facts to support the finding that a regular course of employment existed between the employer and the claimants involved on this appeal and that, therefore, the Board was not bound to follow the holding of Matter of Burger (Corsi) (277 App. Div. 234, aff’d 303 N.Y. 654,656) which based upon the "shape-up" employment method utilized in 1948 affirmed a finding by the Board that as a factual matter there was no regular employment relationship between the longshoremen and the ship owners."

The 1948 shape-up method referred to by the Court in Lessner, supra, was one where the longshoremen were selected for work assignments by the pier hiring boss, solely on a personal choice basis. There was no element of seniority influencing his choice and he would choose workers solely on whomever he wanted to give work to and whomever he wanted to refuse to allow to work. Significantly, sufficient elements of this free hiring choice were found to exist in Matter of Crerand, (46 A.D. 2d 822), again involving longshoremen, so that the Court could again apply the Burger rule, despite having previously qualified that rule in Lessner. The only difference in Crerand was that, in the intervening years, the states of New York and New Jersey had established the Bi-State Waterfront Commission to eliminate certain unsavory characters and their influence from the operations of the Port of New York by creating longshoremen’s hiring halls, under control of the Commission, wherein the hiring for long shore work was done. There still was no element of seniority involved other than that one man’s right to be hired before another depended solely on the time that he appeared at the hall and deposited his Commission issued badge with the shape-up clerk to indicate he was seeking employment; the men being called in such order when a call came in from any pier in the hall’s assigned area for a work crew. Such "daily" seniority ended with the work assignment and did not carry over to the next shape-up; that, once again being on the basis of "first badge in, first one called and hired." In Lessner, in contrast to these methods of hiring, it was found that the shape-up had the added element that, as in the case under review herein, a man who had worked on the particular pier, for the shipper operating from that pier, for a longer time than another man was entitled to be given work ahead of that other man, even though he might have come to the shape-up much later than the man deemed his junior in seniority. This is the seniority element which distinguishes the Lessner rule from the rule of Burger and Crerand. And this is the seniority rule which is involved herein.

The facts herein establish that this claimant is subject to the "Lessner" rule and that the judge erred in applying the "Burger" rule. His work history with the employer was third highest of all the employer’s work staff. When he shaped-up, he was assured of work, if there was any to be had. His work history and seniority were such that he must be considered as having been in regular employment. Therefore, since his unemployment resulted from the industrial controversy which admittedly existed in the establishment where he was employed, he was subject to the suspension of his benefit rights. He was overpaid $575 in benefits which are recoverable because he made a false statement in his claim that there was no strike or labor dispute in the establishment where he had worked in the last eight weeks. That statement was wilfully false for which the forfeit penalty is eight days of future benefits.

Decision: The revised initial determinations of the local office are sustained.

The decision of the administrative law judge, insofar as appealed from, is reversed. (August 23, 1979)

COMMENTS

In the Decisions above, the Appeal Board cited several court cases, all dealing with waterfront hiring systems and their effect on the industrial controversy suspension. In Matter of Burger, (303 NY 654; A-750-1062), longshoremen were selected for work assignments by employers solely on a personal choice basis. There was no seniority element influencing the employer’s choice and he could select those for whom he wanted to provide work and reject whomever he would not allow to work. Based upon this method of hiring, the Court held there was no regular employment relationship between the longshoremen and the employer. Similarly, elements of this freelance hiring were found to exist in Matter of Crerand (46 AD 2d 822; A-750-1785), a case dealing with longshoremen who obtain employment by shaping-up at a central hiring hall, rather than at the employer establishment. The rule in Burger was applied to Crerand.

In Matter of Lessner (36 AD 2d 1; not reported) the court was faced with two types of longshoremen hiring practices, one similar to that in Burger and Crerand, and the other a "gang" system whereby members of a "regular gang" were the first to be called to work by the employer. "Gang" hiring was done by pre-ordering or by being placed on a list maintained by the employer. The regularity and frequency of work provided demonstrated a regular course of employment between "gang" members and the employer and an interruption caused by an industrial controversy warranted a suspension of benefits. By limiting the rule in Burger, the court in Lessner has delineated an employer/employee relationship where there is preferential and priority hiring of longshoremen listed on labor rosters or who have worked regularly on piers in a particular area.

The Lessner rule is not limited to the waterfront industry and is to be applied to other industries using the shape-up method of hiring. The cases set forth above demonstrated Lessner’s application to the Newspaper and concrete ready-mix industries.

There is no precise formula for making these determinations. In deciding whether a claimant is subject to the suspension of benefits, consideration should be given to claimant’s pattern of employment for at least the prior three years to determine the regularity and frequency of employment provided in addition to consideration of seniority and hiring practices in the particular industry. Questions regarding application of this rule should be brought to the attention of Adjudication Services Office should they arise.




A-750-1891
Index 1525B-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 13, 1980

Interpretation Service - Benefit Claims
MISREPRESENTATION
Insurance booklet
alteration

REPORTING DATE OR TIME

An alteration made by a claimant to an official entry on his reporting book or calendar insert to conform with a change in a reporting date or time authorized by the insurance or employment service office does not constitute a wilful misrepresentation, provided it was made to comply with the instructions of the office, and there was no intent to defraud.

Appeal Board Decision 295,236

Administrative law judge decision: The initial determination of the local office holding that claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of four effective days was imposed as a penalty in reduction of his future benefit right is overruled.

Appealed by: Industrial Commissioner

Findings of Fact: Claimant filed his first claim for benefits effective May 7, 1979. He was instructed to report to the insurance office every other Wednesday thereafter, between 2 and 2:30 p.m. The insurance office issued a book to claimant on which this information was written, in ink. Simultaneously, claimant was given a calendar insert which contained instructions that he was to mark all boxes each week of his claim to indicate whether or not he did any work at all on any day, whether he was not willing or able to work on any day, and whether he received or would receive holiday or vacation pay.

When claimant reported to the insurance office on May 23, 1979, he informed the claims examiner that he had a temporary problem and requested permission to report earlier than 2 p.m. on June 6, 1979 when he was next to report to the insurance office. The claims examiner told claimant that it would be permissible for him to report earlier on that day. While on the way to his home in New Jersey, claimant altered the ink entry of 2 to 2:30 on his book, in pencil, to read 10 to 10:30. He did this because he estimated that the commuter train would enable him to reach the insurance office by this hour. When he reported to the insurance office on June 6, 1979 and presented his book and the calendar insert to claim benefits for the proceeding weeks, the alteration was observed.

OPINION: We agree with the conclusion of the judge that claimant did not make a wilful misrepresentation to obtain benefits. However, the issue herein merits further consideration. The Industrial Commissioner contends that since claimant altered the official entry on his book, without authorization, it constitutes a wilful misrepresentation made to obtain benefits and requires the imposition of the forfeit penalty, and that claimant's motivation in making the alteration is immaterial.

He relies on Matter of Morgan (30 AD 2d 595, aff'g A.B. 140, 448). Morgan reported to the employment service on April 17, 1967 and was instructed to report on April 19 to another office which handled sales jobs. An entry to that effect was made in his calendar insert. Morgan did not report on April 19, as instructed, and struck out the entry of April 19 that had been made in his calendar insert. The unauthorized alteration was discovered when he next reported to the insurance office to claim benefits and presented his book. The Board ruled that any unauthorized alteration of an official entry in a claimant's booklet constitutes a wilful misrepresentation to obtain benefits. On appeal, the decision of the Board was affirmed. In a memorandum opinion, the Court stated that unauthorized alterations of an official entry in the claimant's insurance booklet is sufficient to constitute a wilful misrepresentation.

We have consistently held that in the Morgan type of case, an alteration, being unauthorized, constitutes a wilful misrepresentation when the claimant presents his book or calendar insert in order to obtain benefits. However, situations have occurred where the claimant has been instructed by the insurance office or by the employment service to report on a different day or at a different hour than that entered in claimant's booklet and claimant alters the entry to remind himself of the instruction to report on a different date or time. While the claimant has not been instructed to alter the official entry, he has been instructed to report at a new time or on a different day and has complied with such instruction. In such a case, the alteration of the official entry has been held not to constitute a wilful misrepresentation because there was no intent to defraud and the alteration was in conformance with the instruction by the agency to report at a different time or on a different day. (See A.B. 246,488F).

We consider that the circumstances herein require the conclusion that the pencil alteration of the ink entry made by the claimant was not a wilful misrepresentation because it was not intended to deceive and because claimant had been instructed by the claims examiner that he could report on June 6, 1979 at an hour earlier than that assigned. The mere writing by claimant on his book is not a wilful misrepresentation. (Appeal Board 280,509A). The presentment of a book altered with intent to deceive and thus obtain benefits constitutes a wilful misrepresentation to obtain benefits. Even though claimant was not instructed to alter the official entry, his pencil alteration was not such an unauthorized alteration of an official entry as was involved in Morgan. Accordingly, we conclude that claimant did not make a wilful misrepresentation to obtain benefits.

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

The decision of the administrative law judge is affirmed. (November 9, 1979)

COMMENTS

1. The Court and the Appeal Board have consistently held that an unauthorized alteration constitutes a wilful misrepresentation, provided the presentation of the book or calendar insert is done with intent to deceive and thus obtain benefits. (Matter of Morgan, 30 AD 2d 595, aft. A.B. 140,448; not reported) (A.B. 64,161-58; A-750-1489) (Similarly A.B. 225,510; A-750-1824).

2. In the present case, although claimant, was not expressly instructed to alter the official entry, he had been authorized to report at a new time and complied with such instruction. There was no intent to defraud and the alteration was made to conform with official instructions to report at a different time. The Appeal Board's holding is that an express authorization to report at a different time or day is also an implied authorization to make a conforming change to the book's entry.

3. In another case when claimant altered the insurance booklet to conform to a change of date given by employment service personnel, the Appeal Board held that because there was no intent to defraud either the insurance office or the employment office, the forfeit penalty for a wilful misrepresentation was not to be imposed. (A.B. 246, 488F, not reported) (Similarly A.B. 295,677; not reported).

4. Application of this rule should be limited to cases where it can be established that claimant's actions resulted from instructions given by authorized personnel of the Department of Labor, and there if no evidence of intent by claimant to defraud to obtain benefits. The Appeal Board has held that "The mere writing by claimant on his book is not a wil1u1 misrepresentation if not made to obtain benefits." (A.B. 280, 5O9A; not reported).




A-750-1893
Index No. 1215B-10
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

May 1, 1980

Interpretation Service - Benefit Claims
Refusal of Employment
Attitude and Conduct

DISCLOSURE OF INTENTION T0 RETURN TO FORMER EMPLOYER

A claimant, temporarily laid off by a former employer, who discloses to a prospective employer or to an employment interviewer his intention to return to work for the former employer, has not refused employment, even though the disclosure caused a withdrawal of the offer of employment. However, he must accept the offer of employment and leave to the prospective employer the decision of whether the offer remains open.

APPELLATE DIVISION DECISION

Matter of Pereira

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 31, 1978, disqualifying claimant from receiving benefits because he refused employment without good cause.

Claimant was last employed by a tree service company when he was laid off on December 30, 1977, because of a lack or work. He previously had worked about three years as a route salesman for a dairy. He filed an original claim for benefits on January 2, 1978.

On January 19, 1978, an interviewer informed him that his former employer had work for him. He went to see his former employer who offered him a job at which time he told his former employer that he would leave as soon as he was recalled by the tree service company. The job at the dairy paid $3.40 per hour, and the job at the tree service company paid $9.05 per hour. Upon being advised or this, the former employer withdrew the offer or employment.

On January 31, 1978, the Industrial Commissioner determined that claimant had refused the offer of a suitable job without good cause. Claimant requested a hearing asserting that he had not refused the job. The referee found "that claimant's statement to the employer that he would only work temporarily tended to cause the employer not to hire the claimant. Such statement is a discouragement of the offered employment".

At the hearing, a letter from the tree service company was received indicating that claimant had been temporarily laid off, and that it was planned to rehire him as soon as possible. Claimant's statement that he was advised by the Unemployment Insurance Office to inform the former employer of his intent to return to the tree service company is not contradicted in the record. A claimant is, however, privileged to disclose the fact that he intends to return to employment with a former employer to the employment interviewer and to a prospective employer, providing he accepts the offer of employment and leaves to the prospective employer the decision of whether or not the offer remains open (App. Bd. Dec. 1425-39, NY CCH Unemployment Ins. Rep. Sec. 1965.53, p. 688).

While claimant's disclosure caused the prospective employer to withdraw the offer of employment, such disclosure cannot be held to be a refusal of employment. On this record, it cannot be said that the decision of the board that this claimant refused employment is supported by substantial evidence.

Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. (November 1, 1979)

COMMENTS

The Court's holding in this case is that a claimant may disclose to a prospective employer or an employment interviewer that he intends to return to work after a temporary layoff for a former employer when recalled.

Inherent in the decision are the requirements that claimant be on a temporary lay-off and that there be reasonable evidence of expected recall. Furthermore, the claimant must have accepted the offer of employment, leaving the prospective employer with the option of withdrawing the offer or hiring the claimant with the knowledge that claimant would not be a permanent employee.

In the absence of a basis of a reasonable expectancy of a return to a former employer, a statement to a prospective employer of an intention to return to work for a former employer, resulting in a withdrawal of the offer may be construed as a discouragement and thwarting of hire (A.B. 25,754-50, A-750-1027; A.B. 227, 149, not reported), and, hence, a refusal of employment.

In any case where a claimant has evinced an intention to return to a former employer and where a prospective employer has thereby withdrawn an employment offer, the question of the claimant's availability arises. The claimant's search for work and attachment to the labor market should be explored.




A-750-1894
Index 1722-8
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

May 30, 1980

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Distance, travel expense or
requirement

LACK OF SUITABLE TRANSPORTATION

A claimant who becomes unemployed because of a lack of suitable transportation to his place of employment is disqualified for voluntary leaving without good cause provided the lack of transportation is due to personal circumstances, and not because of any action on the part of the employer.

APPELLATE DIVISION DECISION

Matter of Kudysch

DECISION

Appeal from a decision of the Unemployment insurance appeal Board, filed July 27, 1978, which affirmed the decision of a referee overruling the initial determination of the Industrial Commissioner and held that claimant's employment ended under non-disqualifying conditions.

By initial determination effective February 27, 1978, claimant was disqualified from receiving benefits on the ground that he voluntarily left his employment without good cause. The referee's decision overruling this determination was affirmed by the Board and this appeal ensued.

Claimant was employed by appellant for approximately 10 weeks until February 26, 1978. When claimant's car, which he used to travel to his employment, became inoperable, he requested appellant's assistance in providing alternative transportation and discharged claimant because he could not come to work. It was noted that had claimant used public transportation he would have been required to travel in excess of two hours. The Board concluded that claimant had a compelling reason not to come to work and, consequently, held that his employment ended under non-disqualifying conditions.

We disagree with the conclusion reached by the Board. Appellant was under no duty to furnish claimant transportation (Matter of Posselt [Lubin], 3 AD 2d 881). The lack of suitable transportation does not entitle a claimant to unemployment benefits (Matter of Leon [Porta Aluminum-Catherwood], 25 AD 2d 925; Matter of Langer [Catherwood], 11 AD 2d 560). The determination of the Board that claimant's employment ended under non-disqualifying conditions is not supported by the record and, therefore, the facts of this case preclude him from unemployment benefits (Matter of Sankar [Federated Answering Serv. - Ross], 60 AD 2d 951). The Board's decision must be reversed.

Decision reversed, without costs, and matter remitted to the Unemployment Insurance appeal Board for further proceedings not inconsistent herewith (November 29, 1979).

COMMENTS

  1. This decision reaffirms the longstanding principle that loss of employment caused by a lack of suitable transportation does not result from economic circumstances or an employer's inability to provide work as contemplated by the purpose and spirit of the Unemployment Insurance law (sec. 501). Inherent in the court's decision and in prior ones is the proposition that where the providing of transportation to go to and from work is not a condition of employment, the loss of transportation does not result in a change in the terms and conditions of the employment. Thus, a voluntary leaving because of a lack of transportation is without good cause because there has been no change in the terms and conditions of employment (Matter of Sankar, 60 AD 2d 951).

  2. In several prior cases, the court held that an employer had no duty to furnish transportation (Matter of Posselt, 3 AD 2d 881, not reported); that a lack of transportation does not entitle claimant to benefits (Matter of Leon, 25 AD 2d 925, not reported; Matter of Langer, 11 AD 2d 560, not reported). In these cases the only issue before the court was unavailability for employment.

  3. The appeal Board, in several cases, has applied the principles set forth by the court.

    1. In A.B. 262,353 (not reported) a determination of voluntary leaving without good cause was sustained when claimant quit her job because her car became inoperative, the cost of repairs was prohibitive and travel by public transportation exceeded 1½ hours each way. The Board held "It was therefore incumbent upon her to get another car or use public transportation, even if it was in excess of one and one-half hours."

    2. In A.B. 298,966, (not reported) a disqualification for refusal was imposed by the Board in the case of a claimant who refused to accept a job on a rainy day because his car's windshield wipers weren't working. In so deciding, the Board held that "Claimant understood that his failure to keep his car in good repair interfered with his obligation to accept job offers. Under these circumstances, claimant's inability to get to work on June 30, 1979 was foreseeable and he must be held responsible.

  4. The thrust of the present decision and the prior ones is to preclude a claimant's disqualifying for benefits when his unemployment result from lack of transportation or when it continues because of a lack of transportation.

  5. It is important that in all separation cases stemming from a lack of transportation, the question of the claimant's availability should be explored with consideration given to alternate means of transportation.




A-750-1895
Index 1505-B3
1580C-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

1980

Interpretation Service - Benefit Claims
Misrepresentation - Agent or Impersonator

Imposition of forfeit penalty - Impersonation

When a claimant obtains or attempts to obtain benefits fraudulently by arranging for an impostor to report for him and sign for benefit in his name, this constitutes an aggravating circumstance, for which a forfeiture of 80 effective days of future benefits maybe imposed.

Appeal Board Decision 299,751

Administrative Law Judge Decision: The initial determination of the local office holding that the claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of 80 effective days was imposed as a penalty in reduction of his future benefit rights, is modified by reducing the penalty to 24 effective days.

Appealed by: Industrial Commissioner

Findings of fact: Claimant was scheduled to report to the local office on Friday, August 31, 1979, between 10:15 and 11:15 a.m. He did not. Another person appeared and represented that he was the claimant. When challenged, that person left the office, leaving claimant's unemployment insurance booklet behind. Claimant did not report to the police or to the local office that his booklet had been stolen.

Opinion: Claimant caused an imposter to appear at the local office on August 31, 1979 to sign for benefits in his place. For such a flagrant fraud the penalty is a forfeiture of 80 effective days of future benefits.

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

The decision of the administrative law judge, insofar as appealed from, is reversed. (January 9, 1980)

COMMENTS

  1. Under the Industrial Commissioner's regulation 40d (12 NYCRR 473.1 [d]), a claimant is required to file a claim for benefits in person. Regulation 41a (12 NYCRR 473.2 [a]) requires each claimant to report and certify to his unemployment at the day and hour established for him by the local office. In earlier cases the Appeal Board held that authorization, expressed or implied, by a claimant to have an impostor claim his benefits is a violation of the Industrial Commissioner's regulations and constitutes a wilful misrepresentation made to obtain benefits, for which the maximum penalty of 80 effective days should be imposed (A.B. 179,705; not reported and A.B. 277,588; not reported). 1/

  2. The present decision sustained a determination of wilful misrepresentation and the imposition of a penalty of 80 effective days. Although the Administrative Law Judge had sustained the determination of wilful misrepresentation, he modified the forfeiture penalty of 80 effective days to be 24 effective days, holding that the imposition of 80 effective days was a deviation from the normal standards set forth in special Bulletin A-710-21, requiring approval by the local office manager. the manager's approval had not been secured. The Appeal Board, in modifying the decision of the administrative law Judge, held: "for such a flagrant fraud the penalty is [underscoring supplied] a forfeiture of 80 effective days of future benefits."

  3. Inherent in the appeal Board's holding is that the maximum penalty is properly imposed in an imposter case whether or not there is written approval by the local office manager.

    1/ The regulations have been revised effective 3/14/2001. See Field Memo 2-2001.



A-750-1896
Index 1722-9
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 18, 1980

Interpretation Service - Benefit Claims
Travel Time/Method or Cost

LOSS OF REGULAR TRANSPORTATION, NO ALTERNATE MEANS AVAILABLE

A claimant who becomes unemployed because of an involuntary loss of his regular transportation to his place of employment and for whom no alternative means of transportation was available is not subject to a disqualification for voluntary leaving of employment without good cause.

Appeal Board Decision 3O4,625

Administrative Law Judge decision: The initial determination of the local office disqualifying claimant from receiving benefits effective December 6, 1979 because she voluntarily left her employment without good cause is overruled.

Appealed by: Industrial Commissioner

Findings of fact: Claimant was employed as an ethnic aide by a county cooperative extension service for approximately one and a half years. The job required her to visit clients in their homes in a three county area. In order to accomplish this, claimant had to use her own automobile. She was reimbursed first at a rate of 15¢ a mile and subsequently at 17¢ a mile. She was paid $2.49 per hour. During the course of her employment, claimant encountered difficulties from time to time with the automobiles she used in order to perform her job duties. Claimant had taken out a loan to buy another automobile, when she started to have trouble with the one she was first using. However, there came a time when both automobiles became inoperative. Claimant had gone to the bank in an attempt to obtain a loan either to get another automobile or have the one she already owned repaired. However, because she still owed money on a previous loan, she was not able to obtain any further funds. Claimant called her employer, explained the situation and asked for a leave of absence until she could obtain other transportation. However, claimant was discharged because the employer felt it could not wait for an indefinite time until claimant could obtain other transportation.

Opinion: At the outset it should be noted that claimant did not voluntarily leave her employment. Both claimant and the employer agree that she was discharged after she asked for a leave of absence in order to obtain other transportation. The employer and the Industrial Commissioner both contend that, by failing to repair her car, claimant did not live up to the terms and conditions of her employment and thereby voluntarily left her employment. We cannot accept this contention. The evidence establishes that claimant made every effort to repair her automobile or obtain funds to purchase another automobile, but was unable to do so. In Matter of Thunelius, (18 AD 2d 948), the court ruled that financial difficulties which were not the fault of the claimant and which prevented claimant from meeting a condition of his employment did not constitute a voluntary leaving of employment without good cause. Matter of Kudysch (72 AD 2d 901)is distinguishable. In Kudysch, the court made the specific finding that claimant could have gotten to work by public transportation, although it would have taken over two hours. The court held that, under such circumstances, claimant was not justified in leaving his job. No such alternative was available for the claimant in this case. Accordingly, we conclude that claimant's employment did not end under disqualifying conditions.

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

The decision of the administrative law judge is affirmed. (June 9, 1980)

COMMENTS

  1. For earlier cases involving the effect of a Lack of transportation upon a claimant's eligibility for benefits as it relates to the principles set forth by the court in Matter of Kudysch, see Interpretation Service Index 1722-8 and Comments in release A-750-1894.

  2. The present case can be distinguished from Matter of Kudysch, (72 AD 2d 901). In Kudysch, the claimant could have availed himself of public transportation (although it would have taken him more than two hours each way). In the instant case, no such alternative was available to the claimant and additionally claimant needed the automobile not merely to commute, but in the actual performance of her job.

  3. The Appeal Board has applied this same principle in several cases.

    1. In A.B. 305,406 (not reported) it was held that claimant had good cause to quit when her car broke down. Even though she had another means of transportation to reach her work location, she was unable to find any transportation home in the evening. The Board held that ". . . despite a good faith attempt to find alternative means of transportation, she failed to discover one" and therefore, her"...loss of employment resulted from circumstances beyond her control."

    2. In A.B. 306,412 (not reported) a determination of voluntary leaving without good cause was overruled when claimant's car continually broke down, no public transportation was available, and claimant could not arrange to ride with co-workers because there were no other employees at the time of his shift.

    3. In A.B. 306,792 (not reported) claimant was terminated for poor attendance. He was late on his last two days of work because of his car's mechanical problems. He was unable to obtain a ride with co-workers, and arrived at work by hitch-hiking. In overruling a misconduct disqualification, the Appeal Board held that the last two infractions which ". ..preceded claimant's termination. ..were not due to his fault since his means of transportation became unavailable to him and he made many reasonable efforts to report for work.

  4. The Appeal Board has consistently sustained disqualifications in cases where a claimant has made no effort to obtain alternative transportation or to use public transportation (A.B. 307,666; not reported) or where a claimant elects not to use available public transportation (A.B. 307,050; not reported).

  5. The present decision and those discussed in item three (3) serve to limit the application of the holding in Matter of Kudysch to those cases in which an alternative means of transportation exists and a claimant chooses not to utilize it.

  6. In all separation cases stemming from a lack of transportation there is a question of claimant's availability for employment which should be explored.




A-750-1897
Index No. 1605A-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 12, 1980

Interpretation service - Benefit Claims
VOLUNTARY LEAVING
Voluntary or Involuntary

DISCHARGE ON NOTICE OF LEAVING

If a claimant gives notice of leaving employment at a future date, but is discharged for that reason at an earlier date, there may not be a disqualification for voluntary leaving because the separation on the earlier date is not voluntary.

APPELLATE DIVISION DECISION

Matter of Bruce R. Senator, 76 AD 2nd 652

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board filed July 20, 1979.

The claimant was initially determined by the local office of the respondent to be disqualified from benefits because of misconduct on the ground that "you were insubordinate". The claimant requested a hearing and as a result thereof the board modified the initial determination to a disqualification because claimant voluntarily left his employment without good cause.

The claimant testified that on March 14, 1979 he gave the employer "30 days notice". The employer said that he did not need any notice and immediately terminated the employment. The board has found the immediate termination to be a voluntary leaving because "notice is for the benefit of the employer" and "the employer has the right to accelerate the notice..."

It is quite apparent that the theory that the claimant voluntarily left his employment on March 14, 1979 is pure fiction (Matter of Baida [Corsi], 282 App. Div. 975; cf. Matter of Cantor [Levine],50 AD 2d 638[claimant voluntarily left employment before date of notice]). He and his employer had been engaged in a confrontation over the employment generally when claimant gave his notice. The employment might well have continued indefinitely except for the precipitous action of the employer in immediately discharging the claimant (cf. Matter of Baida [Corsi], (supra) [final date of notice accepted as date of disqualification]).

Matter of Baida (Corsi)(supra) was rejected in Matter of Socol (Catherwood) (29 AD 2d 1020), where the court adopted the "provoked discharge" theory of a voluntary leaving of employment, citing Matter of Malaspina (Corsi) (309 N.Y. 413). Since the decision of the Socol case (cited with approval in Matter of Knapp [Levine], 44 AD 2d 36,38), the doctrine of provoked discharge has been discredited, except in cases similar to the Malaspina case when claimants fail to meet an essential condition of employment. (See Matter of De Grego [Levine], 39 NY 2d 180, 183-184; Matter of Cruz [Ross], 70 AD 2d 976). In the absence of the "provoked discharge" doctrine, there is nothing to distinguish the Baida case from the present situation and it is now certain that there must be a factual basis for finding a "voluntary" leaving of employment.

The Industrial Commissioner took no appeal to the board from the modification of his original determination of misconduct and there is nothing in the record to support the finding of a voluntary leaving of employment as the cause of the unemployment as of March 15, 1979; "consequently, claimant is entitled to unemployment insurance benefits". (Matter of Hulse [Levine], 41 NY 2d 813, 814).

The decision should be reversed, with costs, and the matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith (September 11, 1980).

COMMENTS

  1. This decision reaffirms the principles established by the Court of Appeals in Matter of James (34 NY 2d 491). In James, the Court held that: "causes for discharge which do not attain the level of misconduct may not be used to render claimants ineligible for benefits. Voluntary leaving should...be confined to the giving up of employment permanently or temporarily, without cause or justification." The Appeal Board in a case similar to the present case held that: "the only statutory disqualification which may be imposed on a discharged claimant is contained In Section 593.3 of the Law...we hold, therefore, that the mere giving of notice of the intention to leave employment at a future date is not an act of misconduct... His resignation at a future date, which had not as yet occurred and which had played no part in his separation, cannot be considered in determining whether the separation was under disqualifying conditions." (A.B. 201,614A not reported).

  2. The principle of the present decision should not be applied to cases which may appear similar but have different facts justifying a conclusion that the separation is voluntary. Following are two examples:

    1. If a claimant resigns for reasons which do not constitute good cause, but agrees to remain until a replacement is obtained, but not later than a specified final day, and is terminated before such final day when the employer secures the replacement, a disqualification for voluntary quit should be imposed (See Index 1605 A-4; A-750-1224).

    2. Claimant, for reasons not constituting good cause, informed her employer on Thursday, May 2, 1974, that she was quitting at the close of business, Friday, May 3,1974. The employer thereupon paid claimant her salary for the week ending May 3, 1974, and told her it was not necessary to come in to work on May 3. In reversing the referee who had ruled that claimant was discharged prior to the effective date of her resignation and did not quit, the Appeal Board held:

      "She was paid through May 3,1974. It is not material that she was not required to work the last day of that week". (A.B. 201, 325; not reported) (Similarly A.B. 247, 979; not reported).

    In these cases, the claimants were paid until the effective date of resignation. In effect, their employment continued, and it was immaterial that they were not required to work until the effective date of their resignation.

  3. Situations may arise where, although advance notice of leaving is given by a claimant, immediate discharge may occur under circumstances indicating misconduct. For example:

    1. A truck driver, having been denied a salary increase, slowed down in his work and refused to work any more overtime. On June 12, 1974 at 4 p.m., he refused to make an additional delivery because it would have required one hour overtime (for which he would have been compensated). Told that he would be replaced if he didn't follow orders, he replied that he would leave the job in three weeks. He was discharged immediately. The Appeal Board held that claimant's refusal to comply with the reasonable request, to make an additional delivery, coupled with his giving notice that he would leave the job in three weeks, after being warned that he would be replaced if he did not follow orders, constituted insubordinate behavior. It imposed a disqualification for misconduct, effective June 13, 1974 (A.B. 199,753; reported). Thus, where the facts indicate that a claimant's discharge is precipitated by actions detrimental to the employer, a disqualification for misconduct is proper.




A-750-1898
Index 1650 D-8
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 12, 1980

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Grievances and Objections
Health

LUNCH PERIOD: SECTION 162 OF LABOR LAW

Leaving employment because of an employer's failure, to provide a meal period in violation of law is with good cause.

Appeal Board Decision 307,109

Administrative Law Judge Decision: The initial determinations of the local office disqualifying claimant from receiving benefits, effective February 8, 1980, because she voluntarily left her employment without good cause, and effective March 6, 1980, because, without good cause, she refused employment for which she is reasonably fitted by training and experience, are overruled.

Appealed by: The Industrial Commissioner

Findings of fact: The claimant was employed from early November, 1979, until 1980, as a barmaid by a corporation which operated a roadside tavern in a ski-resort area. She was assigned to the "down-stairs" bar, to work six nights a week, with hours of 3:00 P.M. to 11:00 p.m. She was never given a fixed period for her evening meal, but was allowed to have food sent to her at the bar, from the kitchen, whenever she felt she had time to eat when the bar trade was slow.

The president of the corporation is a person who sometimes expresses himself with profanity. Claimant was occasionally addressed by him in that manner, even on the most ordinary of matters and without provocation on her part. She complained to him about his use of profanity in her presence and advised him that if it did not stop, she would resign. On the day before her last day of work, claimant was unable to report to work on time because her automobile had been snowed in by a major snowstorm and had to be dug out. When she reported her inability to get to work on time, she was again spoken to with profanity. This occurred again on the following day and caused her to resign from the employment on that day.

After filing her claim for benefits, effective February 18, 1980, the claimant, on March 6, 1980, was offered a referral by the local office to be rehired by the employer. She refused the referral for the same reasons that she had left the job.

Opinion: The credible evidence, now before the Board, establishes a course of conduct on the part of the employer that was both objectionable and violative of the provisions of the Labor Law. We find that the employer was in substantial violation of Labor Law, Section 162, relating to hours allowed to employees for meals. Subdivision 4 of that section specifically applies to the claimant herein. It reads as follows:

"4. Every person employed for a period or shift of more than six hours starting between the hours of one o'clock in the afternoon and six o'clock in the morning, shall be allowed--forty-five minutes for meals period when employed in or in connection with a mercantile or other establishment or occupation coming under the provisions of this Chapter, at a time midway between the beginning and end of such employment."

We considered the application of Labor Law, Section 162, to a situation similar to the one herein, in Appeal Board 214,157; 214,158. In that case, the employees in a dentist's office were required to periodically cover the office during lunch hours, by having at least one of them eat lunch in the office, while attending to all necessary work that arose during the lunch hour. We commented on the employer's practice therein as follows:

"The evidence in the record on appeal is conclusive that the claimants were not consistently allowed a lunch period as required by the Law. Although they were not prevented from eating their noon meals they were required to eat while at work, whenever they were assigned to staff the office in the absence of the other employees on their lunch period. The Board does not consider this to be compliance with the clear intent of the Law. The time period prescribed must be allowed to the employee for eating or for any other use which the employee chooses to make of it. What the Law contemplates is not just an opportunity to consume food, but also a respite from work." (Emphasis supplied.)

In the instant case under review, we find our prior comments equally applicable. The claimant did not have an uninterrupted "respite from work" during which she could eat her meal or do whatever else she wished. True, food was brought to her, but she had to eat "on the run" while serving the employer's patrons in the bar. This cannot be deemed to be any measure of compliance with the Law. This arrangement was good cause for the claimant to resign from her employment. In addition, we find that the employer's use of profane language, both addressed to the claimant and in her presence, was inappropriate and uncalled for under any circumstances. His continued use of such language after she had specifically complained to him about it also gave her good cause to resign from her employment.

Finally, in respect to the refusal issue, we hold that the claimant had good cause to refuse the referral back to the employer for rehire, for the same reasons that she had good cause to leave the employment.

Decision: The initial determinations of the local office disqualifying the claimant from receiving benefits, effective February 18, 1980, because she voluntarily left her employment without good cause, and effective March 6, 1980, because without good cause she refused employment for which she is reasonably fitted by training and experience, are overruled.

The decision of the administrative law judge, insofar as appealed from, is affirmed (August 25, 1980).

COMMENTS

This decision is illustrative of the principle that:

1) when there are grounds constituting "good cause" for a voluntary quit, such as working conditions in violation of law, no disqualification applies even though claimant may not have complained about such conditions and quit for other reasons. The mere existence of a violation of legally established working conditions, is in itself, good cause to quit" (A.B. 275,084, not reported)

2) In the present case the claimant quit because of the profanity directed to her by the employer. She advanced no other reason for leaving. Subsequently, the employer's violation of a provision of the New York State Labor Law (Sec. 162), dealing with working conditions, was disclosed, and, thus, the claimant was afforded good cause. The principle enunciated by the Appeal Board will apply equally to a claimant's refusal of employment when an employer is in violation of labor law provisions dealing with working conditions.

3) Caution must be exercised when making determinations pursuant to the principle set forth in the present case. Exceptions to the requirements of the Labor Law may be granted upon application to the Industrial Commissioner. An employer who has been granted an exception is not in violation. Local office fact finding in these situations must include information with respect to a possible exception. Additionally, certain employees or employers may not be subject to the provisions of the Labor Law. Fact finding here must also include such information.