A-750-2000

INDEX 920-C14

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

July 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
EMPLOYEES OF EDUCATIONAL INSTITUTIONS

Reasonable assurance does not exist for a per diem substitute employee, who had enhanced earnings because of a steady assignment in the prior school year or term, unless the employer can demonstrate that claimant's earnings will not be substantial less in the upcoming school year or term.

A.B.389,347

FINDINGS OF FACT: The claimant was employed by a local school district as a substitute bus driver, where she worked from September 9, 1987 until June 17, 1988. During the 1987-88 school year, the claimant was the least senior of the substitute bus drivers. However, during the 1987-88 school year, a significant number of regular full-time jobs were available, on which substitute bus drivers could bid. More substitute jobs became available to the claimant as more senior substitute bus drivers bid on to regular jobs. From February, 1988 through June, 1988, the claimant bid on and got two steady jobs and worked full-time for fourteen weeks. Although the claimant was paid $5.60 an hour whether she worked as a substitute or on a regular job, the increase in hours worked made a significant difference in claimant's weekly wages. While working as a substitute the claimant sometimes only made $12 a week, on a steady job she made $226 a week.

The school board sent the claimant a letter dated May 21, 1988, advising her that the district was placing her name on an active substitute bus driver list for the 1988-89 school year. The claimant received the letter and returned a signed copy to the employer dated June 3, 1988. The employer's representative at the hearing did not know how the list was compiled, the number of people on the list, or how someone is called from the list. He also did not know claimant's seniority status for the 1988-89 school year. While during the 1987-88 school year there was a great deal of turnover and a number of regular bus drivers suffered extended illnesses, the claimant was informed by the employer that all the regular bus drivers were returning for the 1988-89 school year and no steady runs were expected to become available.

OPINION: To establish reasonable assurance of employment for substitute employees, it must be demonstrated, with competent testimony from knowledgeable witnesses concerning the employer's personnel practice and hiring procedures, that the employer has expressed a good faith willingness to place and/or has in fact placed the claimant's name on the list from which substitutes are called, and that the employer will in good faith consider the possibility of offering work to the claimant.

The evidence establishes that the claimant has been employed as a substitute bus driver by the employer herein. She received a letter from the employer which claims that the employer will continue using her services in the next school year. However, the employer offers no competent proof that the claimant's name would be or was listed, nor that the claimant would, in good faith, be considered for substitute work. The employer's representative has no personal knowledge as to the employer's practices and procedures concerning the hiring and calling of substitute bus drivers. There is no testimony from those who compiled or use the list from which substitutes are called. However, even had the employer presented proof that these conditions had been satisfied, the existence of reasonable assurance in this case would not be established as the evidence shows the economic terms and conditions of the job offered in 1988-89 are substantially less than the terms and conditions for the job in 1987-88 (see Unemployment Insurance Program Letter, 4-87, dated December 24, 1986). During the 1987-88 school year, the claimant worked fourteen weeks on a regular job and, because of the number of steady jobs available to substitute drivers, even when claimant herself could not bid a regular job, her chances of obtaining a substitute job were greater as many of the other substitute drivers were on steady jobs and she was called more often. The claimant credibly testified that the employer reported to her that no steady jobs were expected to be available during the 1988-89 school year. The employer has not rebutted this contention. We conclude that as a result of this situation, there is a substantial reduction in the economic terms and conditions of the job from last year to this year. Under all of these circumstances, we conclude that the claimant did not receive reasonable assurance and the provisions of Section 590.11 of the Law do not apply.

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

The decision of the administrative law judge is reversed.

COMMENTS

1. This rule supersedes the principles set forth in Field Memorandum 5-88 which should be marked obsolete and no longer followed.

2. For a discussion of reasonable assurance "economically defined", please see A-750-1988.

3. Complex questions in this area may be referred, through supervisory channels, to the Adjudication Services Office, Interpretation Section (Telephone 212-352-6850).

 



A-750-2001

Index 1605A-11
1605B-7

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

July, 1989

Interpretation Service-Benefit Claims
Voluntary Separation
Voluntary or Involuntary
Existence of Employment Relationship

A claimant, who is discharged immediately upon giving notice of intent to leave at a future date for personal, non-compelling reasons has voluntarily quit his job without good cause if the employer pays, upon separation, an amount equivalent to the salary claimant would have received through the intended date of leaving.

AB 389,848A

FINDINGS OF FACT: Claimant, a file clerk, worked in the credit department of a bank from April, 1987 through February 10, 1988. On February 10, claimant's supervisor asked to see claimant concerning several work related matters. The supervisor advised claimant that she was no longer to eat breakfast at her desk or have visitors when she was working, and that she was only to do credit card checks required by her work and that she was not to pull her supervisor's file for a credit check. She was also advised that it had again been reported that claimant had a body odor and she was advised that she must follow the employer's dress code. While these matters were being raised by her supervisor, claimant, admittedly, began yelling and using the word "shit" in response to her supervisor's comment's. (When claimant returned to her work area, she, admittedly, used the word "fuck". When discussing with co-workers what had occurred.) During the course of the discussion with her supervisor, claimant tendered her resignation with two weeks notice, which was accepted by her supervisor. The employer, thereafter, elected to pay claimant the two weeks salary in question and had claimant leave the employer's premises immediately because of claimant's behavior following her resignation. At no time during the discussion with her supervisor was claimant told that her job was in jeopardy or that she was going to be fired as a result of the problems that had arisen.

OPINION: The credible evidence establishes that claimant quit her employment for personal, non-compelling reasons within the meaning of the law. Claimant's supervisor's discussion with claimant on February 10 was solely concerning matter which were of legitimate business concern to the employer and her remarks in no way breached the bounds of propriety. Claimant's decision to leave, under the circumstances was without good cause. The employer's decision to advance claimant's last day does not, in this case, alter the voluntary nature of her leaving as the employer paid her salary through the date she declared to be her last.

DECISION: The decision of the Board filed August 11, 1988 (A.B. No. 388,171) is hereby rescinded. The initial determination of the local office is sustained. The decision of the administrative law judge is reversed.

COMMENTS

1. The rule reported above is the same as the rule reported in A-750-1989. The rule itself need not be changed. However, the Appeal Board number of this case (389,848A), and the serial number of this case (A-750-2001), should be substituted at the appropriate listing in the Interpretation Service Index.

2. The Appeal Board, on claimant's application reopened its decision in AB 385,482 which was originally reported as A-750-1989. Upon this reopening (AB 388,334A), while adhering to the same principle that claimant's separation was voluntary, the Appeal Board found that the circumstances which caused claimant to quit his job constituted good cause. The Appeal Board decision as originally reported in A-750-1989 is significant because in that case (AB 385,482), the Board specifically considered and rejected the argument that factors such as the continuation of full salary and all fringe benefits, which are necessary to determine an issue of total unemployment as set forth in AB 361, 815 (see A-750-1961 set forth at Index No. 1460C-7), were necessary to resolve the question of the nature of claimant's separation.

3. In the present case, the Appeal Board was again faced with a situation in which claimant was; discharged immediately upon giving notice of intent to leave at a future date. Claimant, however, was paid through her intended last day of work. After finding that claimant's reason for quitting was without good cause, the Appeal Board said "The employer's decision to advance claimant's last day does not, in this case, alter the voluntary nature of her leaving as the employer paid her salary through the date she declared to be her last." This finding is consistent with comment 2b in the discussion of Matter of Senator (see A-750-1897 at Index Number 1605A-5).

4. As is clearly illustrated by the events reported above, in all similar cases where a claimant's action of giving notice of intent to leave at a future date could result in a finding that the separation is voluntary, it is nonetheless necessary to determine whether that reason constitutes good cause.

 



A-750-2002

Index 701-1
765-13

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

July, 1989

INTERPRETATION SERUICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY

There must be a causal connection between any lack of specific advice at the local office and the claimant having removed herself from the labor market in order for the lack of advice to form a basis for claimant to be held available for employment.

A.B. 390,926

FINDINGS OF FACT: Claimant filed an original claim for benefits effective October 10, 1988, after her employment ended because claimant’s child care arrangements were disrupted. Thereafter and at all times in issue, claimant was unable to make child care arrangements for her two grandchildren, aged two and four. Although she was aware of her obligation to seek work at least as early as October 24, 1988 she did not do so because she was unable to arrange for any reliable child care.

OPINION: The credible evidence clearly establishes that the claimant did not look for work because she did not have, nor could she arrange, any reliable child care during the period under consideration. We see no causal connection between any lack of specific advice at the local office and the claimant's having removed herself from the labor market both in the leaving of her employment and in her inability to look for work. We conclude that the claimant was not available for employment and note that we have repeatedly so held in the past in similar cases (A.B. 907,813; A.B. 918, 434 and A.B. 386,140).

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

COMMENTS

1. The Municipal Labor Committee Consent Judgment (MLC) requires the local office to inform claimants what steps they must take in order to become eligible and maintain eligibility for benefits. This requirement is consistent with A-710-23 (Revised) and Section 5060-5099 of the Unemployment Insurance Manual and is unchanged by this decision. The MLC also requires that where "The Unemployment Insurance Division has failed to follow its own procedures and where such failure results in a denial of benefits, an initial determination must be overruled. In this case the Appeal Board determined that the claimant's withdrawal from the labor market did not result from local office action or inaction and, therefore, the conditions in the MLC which would require that benefits be granted did not occur.


A-750-2003

Index 1645A-2

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

July, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARV SEPARATION
FOLLOWING SPOUSE

FOLLOWING SPOUSE-MEDICAL REASON

Quitting a job to move with a family unit to another area is with good cause provided the relocation is for a compelling medical reason. There is no requirement that the relocating claimant be rendering personal care to the member of the family unit.

A.B. 382, 5774A

FINDINGS OF FACT: Claimant was employed as an air-conditioning mechanic by the employer for approximately 22 years. He is married. His wife suffers from asthma, diabetes, arthritis, and a chronic hernia, even after surgery. She was advised by her doctor to relocate to a warmer climate as the cold aggravated her conditions. Claimant and his wife decided to move to Puerto Rico for her health. The claimant resigned from his job effective March 13, 1986 in order to relocate to Puerto Rico with his wife. Effective July 27, 1987, Section 593.1(b) of the Unemployment Insurance Law was amended, repealing that portion of the statute which provided for automatic statutory disqualification for voluntary leaving employment to follow a spouse to another locality. This amendment was to take effect immediately and was to be "effective in pending determinations." The claimant's appeal to the Board was filed July 29, 1987.

OPINION: The credible evidence establishes that the claimant's wife suffered from a variety of serious ailments and was advised by her doctor to relocate to a warmer climate. The claimant left his job to go with his wife to Puerto Rico based on this advice.

The record establishes that the claimant's case was pending resolution at the time Section 593.1(b) of the Law was repelled. Therefore, we conclude, at this time, that her case must be decided under the Law as amended and presently in effect, as the Law was to be effective in pending determinations. Accordingly, we conclude that the claimant is not subject to disqualification for voluntary leaving of employment to follow his spouse to another locality, as presently there is no such statutory disqualification, such statute having been repealed by amendment to the Law.

In view of the foregoing, it is necessary for the Board to rule on the remaining issue of whether claimant had good cause to leave his employment. The purpose of the amendment repealing the automatic, statutory disqualification was to give claimants, who leave their jobs to follow their spouse to another locality, an opportunity to make a showing of good cause for so leaving. See: 210 Session, Laws of New York, Memo. of N.Y.S. Department of Labor, Chapter 418, Page A-897 (McKinneys, Reg. Sess., 1987). Accordingly, the Board must review the reasons claimant has for relocating to an area that requires leaving his employment to determine if good cause exist for such leaving. The Board concludes that the claimant's leaving employment to relocate to Puerto Rico with his family for his wife's health, on the advice of her doctor, was with good cause. The prior requirement that a relocating claimant had to be going to render personal care to his/her spouse need no longer be met. It must only be shown that the spouse's medical reasons for relocating are compelling and supported by the record. To the extent that prior Appeal Board decisions have reached contrary results, we will no longer follow them. Accordingly, we conclude that the claimant is not subject to disqualification.

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

The decision of the administrative law judge is reversed.

COMMENTS

1. Section 1645 headed "Following Spouse" (Section 593.1(b)(2) and the rules reported therein should be removed from the Interpretation Service Index, as they reflect case law established under the section of law repealed effective July 27, 1987. A new Section 1645, headed "Following Spouse", should be established and this rule numbered 1645-1.

2. In this decision, the Appeal Board has arrived at a test to determine "good cause" similar to that suggested in Field Memorandum 5-87. Having determined, based or credible and reasonable medical evidence, that the claimant's spouse or any other member of the family had a compelling medical reason to relocate, the Board reasoned that this alone gave claimant good cause to quit.

3. The extension of this rule to other family members is consistent with the rule previously reported as A-750-1549.

 



A-750-2004

Index 1645A-3

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

July, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE

Quitting a job to follow a spouse who moves to another locality after retiring for medical reasons is without good cause unless there is medical evidence that the spouse's condition would benefit front taking up residence in the new locality.

A.B. 391,034

FINDINGS OF FACT: The claimant was last employed as an assembly mechanic for a manufacturer of photo-related products for almost five years until August 19, 1988. The claimant quit her employment in order to move to Hawaii with her husband who was retired. He has had high blood pressure and gout for at least three to four years. However, the claimant and her husband were not advised by a medical professional that it was advisable for her husband to leave New York for health reasons. Claimant's husband disliked the winters in their hometown and desired to move to, and build a home in Hawaii.

OPINION: The credible evidence establishes that the claimant left her employment in order to relocate to Hawaii with her husband. Claimant's husband decided to move from New York to Hawaii in order to enjoy a more pleasant climate. Although the claimant contends that her husband's medical condition was the reason for this move, claimant admits he was not advised by a doctor to relocate nor did he expect a specific improvement in his medical condition by the move to Hawaii . Her husband simply expected that he would feel better in general if he moved to a tropical climate. We therefore conclude that the claimant relocated with her husband to Hawaii for persona and non-compelling reasons. Accordingly, we conclude that the claimant left her employment without good cause.

DECISION: The initial determination of the Out-of-State Resident Office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS:

1. This decision amplifies the principles stated in Field Memorandum 5-87 that "the test of compelling reason must be applied to the reason for the move and not to the spouse's reason for leaving employment."

2. A desire to move to a more pleasant climate because of a mere expectation that the spouse will feel better in general, does not constitute good cause even if a doctor were to give such advice for such reason. As the Appeal Board states, there must be a "specific improvement in his medical condition" anticipated from the relocation.

3. This decision reinforces the obligation of the local office personnel to evaluate the credibility of medical evidence. An assertion by a doctor that a relocation will improve claimant's condition, must be evaluated against common knowledge of the specific causes and cures for certain conditions. For example, a person who retires because of a heart condition and relocates from New York City to Buffalo, where an adult child resides, would not provide his/her spouse good cause to quit unless medical evidence shows some aspect of that move that would result in a specific improvement. It is well known that the climate is even more severe in Buffalo than New York. Similarly, a person who moves to Florida following the amputation of a limb, would not provide his/her spouse good cause simply because a doctor asserts a warmer climate would be desirable.

 



A-750-2005

Index 915 B-7

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

July, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AMOUNT OF REDUCTJON

INCREASE IN PENSION AMOUNT

If claimant's employment in the base period increases his preexisting pension by any amount, the entire amount of the pension, not just the amount of the increase, is used in calculating tile appropriate reduction.

A.B. 390,821

FINDINGS OF FACT: Claimant retired in 1981 after working for a trucking company for 25 years. Thereafter he began to receive pension payments from the Teamster's benefit funds. Shortly thereafter, as part of divorce settlement, claimant turned over the pension checks to his ex-wife and has not received them since. Prior to filing his original claim for benefits effective July 20, 1987. he had worked about four months for an electrical company and lost this employment when the plant closed. This company made no contributions to claimant's pension funds. In August and November, 1986, during claimant's base year, he worked a total of 50-1/4 hours for two trucking companies. As a result of this work the companies contributed a combined total of $84.04 to claimant's pension funds. These contributions resulted in an increase of $2.19 in claimant's monthly pension. Claimant received $3,168 in unemployment insurance benefits, prior to the redetermination of his claim.

OPINION: Section 600.7(a) of the Unemployment Insurance Law requires that claimant's a benefit rate shall be reduced if the claimant is receiving a pension and such pension payment is made under a plan maintained or contributed to by his base period employer and the remuneration from such employer after the beginning of the base period affected his eligibility for or increased the amount of such pension. The credible evidence establishes that claimant's minimal work for the trucking companies in his base year had the effect of increasing his pension by a monthly total of $2.19. Accordingly, Section 600.7(a) mandates that his benefit rate be reduced.

Section 600.7(b) then enumerates the manner in which claimant's benefit rate shall be reduced if sub-section (a) applies. This provision requires that the benefit rate shall be reduced by the largest number of whole dollars which is not more than the pro-rated weekly amount of such pension payments where, as here, the claimant made no contributions to the pension. Accordingly, even though claimant's base period employment had the relatively insignificant effect of increasing the monthly amount of his pension by only $2.19, the Law compels that the entire amount of his monthly pension be considered in reducing his benefit rate. He are thus constrained to conclude that the local office properly reduced his benefit rate from $180 to $52 and that claimant was thus overpaid in the amount of $3,168 in benefits.

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

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

 



A-750-2006

INDEX 1645A-4

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

July, 1989

INTERPRETATION SERVICE-BENEFIT- CLAIMS
VOLUNTARY SEPARATION FOLLOWING SPOUSE

Quitting a job to move with a spouse who left the area for a personal, non-compelling reason (e.g. attendance at college) is without good cause.

AB 391,210-A

FINDINGS OF FACT: Claimant was employed as a custodial worker for a municipal school district for about five years at an annual salary of $14,739. In 1987, his wife relocated to Puerto Rico in order to complete her undergraduate credits leading to a bachelor of arts degree in English. Her studies are to be completed in May of 1989. Claimant's wife returned to Puerto Rico to complete her studies because she learned she would be unable to transfer her already earned 60 credits to a college convenient to where she and her husband worked in New York State. In Puerto Rico, claimant's wife lives in a house where she pays only $35 per month for gas utilities plus water bills that were about $15 per month. Claimant's apartment in New York State cost him $260 per month plus electric utilities. Claimant submitted his resignation to the employer to be effective March 18, 1988 because he wished to relocate to Puerto Rico and join his wife. Claimant believed that he would be financially better off without supporting two households. Claimant did not have a prospect for employment in Puerto Rico. Continuing work was available for him at the school district. Claimant did not request a leave of absence.

OPINION: The credible evidence establishes that claimant voluntarily left his employment while continuing work was available to him in order to relocate to Puerto Rico where his wife was pursuing a college education. As claimant had no prospect for a job in Puerto Rico we reject his contention that he would be financially better off by leaving his employment in New York. It is not significant nor relevant in this case that claimant did not request a leave of absence from his employment. Had he requested and been granted a leave of absence and then applied for unemployment insurance it would still be necessary to determine whether he had good cause to have left his employment to go on the leave of absence. In the circumstances of this case, we are only concerned with whether or not the reasons for claimant's resignation constituted good cause under the Law. We conclude that under these circumstances, claimant had no compelling reason to leave his employment. Accordingly, the claimant is properly subject to the disqualification.

DECISION: The decision of the Board filed December 23, 1988 (Appeal Board 389,676) is hereby rescinded.

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

COMMENTS

1. This decision is consistent with the principles set forth in Field Memorandum 5-87.

2. In this case, claimant had an annual salary of $14,739 and a monthly rent of $260. Since claimant would have no job in Puerto Rico, the Board rejected his contention that he would be financially better off by leaving his employment because he would therefore not have to support two households.

3. In a different case (AB 390,758) the Appeal Board sustained a determination of voluntary leaving of employment without good cause when claimant left to move with her husband to Indiana where they could live rent free. The Board observed "the unemployment insurance program was never intended to insulate individuals from economic adversity to the extent of guaranteeing their living standards". Claimant is required to demonstrate "why her family could not have continued to reside in the apartment they were living in or why they could not have obtained affordable housing elsewhere in the vicinity."

4. If claimant raises the issue of the affordability of housing with reduced income, both the possibility of remaining in the present domicile or moving to less expensive living quarters should be explored.

 



A-750-2007

INDEX 1645A-5

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

July, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE

Quitting a job to move with a previously unemployed spouse who found work in a different locality is with good cause.

A.B. 382,135

FINDINGS OF FACT: The claimant was employed as a secretary for a hospital for 13 years. She is married and has two children living at home. Her husband lost his job in June of 1986. He was unemployed for almost a year, at which point he found a job in Georgia which he took. The claimant's earnings of $15,000 a year had not been sufficient to cover the family's expenses during her husband's period of unemployment. A foreclosure action was filed against their home and their car payments and other financial obligations were in arrears. When her husband obtained employment out-of-state, they sold their house and claimant left her job in order to relocate to Georgia with her family.

Effective July 27, 1987, Section 593.1 (b) of the Unemployment Insurance Law was amended, repealing that portion of the statute which provided for an automatic statutory disqualification for voluntarily leaving employment to follow a spouse to another locality.

OPINION: The credible evidence establishes that the claimant's husband found work in Georgia, following a year of unemployment. During this year, the family incurred significant debts which forced them to sell their house in New York under threat of foreclosure. The purpose of the amendment repealing the automatic statutory disqualification was to give claimants, who leave their jobs to follow their spouses to another locality, an opportunity to make a showing of good cause for so leaving. (see: 210th Session Laws of New York, Memorandum of New York Department of Labor, Chapter 418, page A-897) (McKinneys Regular Session, 1987). Accordingly, the Board must review the reasons such a claimant has for relocating to an area that requires leaving employment, to determine if good cause exists for such leaving. The Board concludes that the claimant's leaving employment to relocate to Georgia with her husband, who had obtained employment there, was with good cause. Accordingly, we conclude that the claimant is not subject to disqualification.

DECISION: The initial determination of the local office disqualifying the claimant from receiving benefits effective: May 2, 1987, because she voluntarily left her employment without good cause, is overruled.

The decision of the administrative law judge is rescinded, as ordered.

COMMENT

This decision is consistent with the principle! stated in Field Memorandum 5-87 that leaving a job because a spouse accepted new employment is leaving for a compelling reason, thus, a leaving for good cause.

 



A-750-2008

INDEX 1645A-6

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

July, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE

Quitting a job to move with a spouse who is transferred to a different locality is with good cause.

A. B. 383,990

FINDINGS OF FACT: The claimant worked as a production supervisor for the employer from December, 1979 until July 31, 1987. He earned $19,872 a year. His work site was in Western, New York. The claimant's wife worked as a store manager for a retail store, also located in Western, New York. She earned $16,000 a year. She was informed in early 1987 that her store was scheduled to be closed and that she was being transferred to another store in Tennessee. Her employer offered no other job prospect. She relocated to Tennessee with the couple's children, and began work in her new position in March, 1987. Her base salary was increased to $18,500 a year and the employer estimated that she would be earning $21,000 a year with bonuses and/or commissions. Claimant resigned his position on July 31, 1987 and relocated to Tennessee to join his family.

OPINION: The credible evidence establishes that the claimant voluntarily left his employment in order to be with his wife and children who had moved to Tennessee because of his wife's mandatory transfer there. She had relocated to preserve her employment. The transfer also entailed benefits such as a raise and promotional opportunities. Once it was determined that claimant's wife was relatively secure in her new job, the claimant submitted his resignation in order to join his wife and children in Tennessee. Under these circumstances, we conclude that the claimant voluntarily left his employment with good cause.

DECISION: The initial determination of the Out-of-State Resident Office is sustained.

The employer's objection is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. This decision is consistent with the principle in Field Memorandum 5-87 that leaving a job because of the transfer of a spouse constitutes a compelling reason.

2. It should be noted that in this case the transfer was mandatory. The spouse could not have continued working in the prior location because it had been closed.

3. In another recent case (AB 381,725) the Appeal Board dealt with a voluntary transfer. They found that the claimant who quit her job to move with a spouse who had requested a transfer, did so with good cause. In support of this decision they stated that among the reasons for good cause was, "his employment would be more secure there due to his employer' s plans for layoffs in New York and expansion in Florida." It is unclear from this case what decision the Appeal Board would make in the event of different circumstances leading to a voluntary transfer. Until a definitive decision is received from the Board, we should continue to find good cause in all cases where the spouse has employment to go to in the new location.

 



A-750-2009

INDEX 1645A-1

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

August, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE

Claimants who leave their jobs to relocate to another locality must demonstrate they had good cause, aside from maintaining the marital relationship, to do so.

A. B. 387,494

FINDINGS OF FACT: Claimant worked as a specialized records clerk for a public utility from November 19, 1969 through January 14, 1988, when she voluntarily resigned her employment in order to relocate with her husband to Florida. Claimant's husband was a taxi driver in New York. He quit his job because he felt it was dangerous. Claimant and her husband moved to Florida. Claimant filed her original claim for benefits in Florida effective February 15, 1988 Claimant's husband did not retire. However, he did not have any definite job to go to in Florida. About a month after their arrival in Florida, claimant and her husband opened a window cleaning service.

OPINION: The repeal of Section 593.1(b), imposing a disqualification for voluntarily leaving employment to follow one's spouse to another locality, did not mean that all such separations are automatically with good cause. It is still necessary for claimants to demonstrate that they had good cause to leave their job to relocate to another locality.

The credible evidence in this case establishes that the claimant left her employment to relocate to Florida with her husband. Claimant's husband, a taxi driver in New York, quit his job because of its problems and chose to move to Florida. There was no compelling reason for claimant and her husband to relocate to Florida. He had no definite job to go to in Florida nor did claimant. It was a matter of personal preference. The judge's reliance on Appeal Board Case No. 35,478-52 is misplaced. In this cited case, the Board held that it was "a wife's duty to live with her husband", wherever he chose. Society's conventions have significantly changed since that opinion was expressed in 1952. It is an opinion no longer held by the Board.

Absent any good cause for the relocation to Florida we conclude that claimant voluntarily left her employment without good cause.

DECISION: The initial determination of the Out-of-State Resident Office is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. In the 1952 case discussed by the Appeal Board (AB 35,478), the claimant had quit her job on September 19, 1952 to move with her husband to a home they had purchased in upstate New York. This was prior to the passage of the specific disqualification for voluntary separation to follow spouse. When this specific disqualification was repealed, the new standards set forth in Field Memorandum 5-87 were developed. In the instant case, the Appeal Board has specifically stated they will no longer follow the 1952 precedent.

2. A related case (AB 387,484A) involved a claimant who quit a job to move with her husband to Florida. The Appeal Board held that claimant had quit to relocate to Florida and, "The fact that claimant was married and that she and her husband together decided to relocate does not convert what would otherwise be considered a voluntary leaving of employment without good cause into a leaving of employment to follow a spouse to another locality and does not turn a leaving of employment which would otherwise be disqualifying into one which is non-disqualifying."

 



A-750-2010

INDEX 1722.10

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

August, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
TRAVEL TIME, METHOD OR COST

Excessive Travel Time

Where a claimant has worked for two months under commuting conditions requiring a travel time in excess of one and one-half hours each way, a leaving for such reason is without good cause.

A.B. 392,146

FINDINGS OF FACT: The claimant was employed as a data processor for more than 10 years until December 30, 1988. Prior to July, 1988 the employer was located in Manhattan. The claimant's commute from her home in Brooklyn was one hour each way. In mid-July, 1988 the employer moved its offices to Rego Park, Queens. The claimant's travel time increased to two hours each way, but the claimant continued in her employment. On or about November 30, 1988, she gave 30 days notice to her employer that because of the increase in her commuting time she was quitting effective December 30, 1988. The claimant did not quit when the employer moved because on October 30, 1988 she marked her tenth anniversary with the employer which was significant in relation to her pension benefit entitlement.

OPINION: The credible evidence establishes that the claimant quit her employment because she was dissatisfied with the travel time caused by the employer's move in July 1988. However, the claimant had worked for more than five months under such conditions before she quit. Her decision to quit employment after five months under the same terms and conditions constitute a voluntary leaving of employment without good cause within the meaning of the unemployment insurance law. The claimant had accepted the terms and new conditions of her employment. The Appeal Board has held that where a claimant has worked for two months under commuting conditions requiring a travel time in excess of one and one-half hours each way, a leaving for such reason would not constitute good cause (see A.B. 382,192 and A.B. 385,960). Accordingly, we find that the claimant's voluntary leaving of employment was without good cause.

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

COMMENTS

1. The above case replaces A-750-1584, reported in the Interpretation Service Index at 1722-7, which should be marked obsolete. The shorter period of employment specified in this case is controlling. This is consistent with A-750-1609, wherein the Appeal Board held that a period of one and one-half months was insufficient to establish that claimant had accepted the new conditions of employment, and therefore a quit due to excess travel time was with good cause.

2. The factual circumstances in the two cases cited by the Appeal Board are as follows:

a) AB 382,192. A temporary post office employee, after working a three month cycle, declined a new cycle because of two hours travel time. The Board held that claimant quit without good cause.

b) AB 385,960. Claimant accepted a job two hours from her home. After two months she was warned regarding excessive latenesses Claimant quit this job. The Board, reasoning that claimant was not in immediate jeopardy of losing her job because of tardiness, held the quit to have been without good cause.

 



A-750-2011

Index No. 765.14
795.15

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

August 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Search for work

NEW YORK STATE BAR EXAMINATION

An individual who takes the New York State Bar Examination is not ready, willing and able to work on the days of such examination, nor can such examination be treated as a job seeking effort.

A.B. 390,924

Findings of Fact: The claimant worked as student legal specialist for the Law Department of the City of New York for about one year until June 10, 1988, when his employment was terminated because he graduated from Law school. He filed an original claim for benefits effective June 13, 1988 and was held eligible to receive benefits without any disqualifying conditions.

In April 1988, claimant had been offered a position as an assistant corporation counsel by the employer, to begin in September 1988. The claimant sat for the New York State Bar Examination on July 26 and July 27, 1988 which took up the greater part of both days. In order to qualify for the position offered, claimant had to take the examination, the successful completion of which is required to work as a lawyer.

Opinion: The undisputed evidence establishes that the claimant was taking the New York State Bar Examination on July 26 and July 27, 1988. The Board has repeatedly held that under such circumstances such an individual is not ready, willing and able to accept work and is therefore not available for employment (Appeal Board Nos. 358,542; 389,740). We disagree with the conclusion of the judge that the claimant was available because the taking of the examination was in the nature of a job-seeking effort. The examination is a pre-requisite to be admitted to practice and work as a lawyer. This clearly falls outside of the requirement of Section 591.2 of the Labor Law that a claimant must be "…ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience." Accordingly, we conclude that the claimant was unavailable for employment and ineligible for benefits during the period under review. To the extent that any prior decisions may be inconsistent with the holding in this case, such decisions will no longer be followed.

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

The employer’s objection is sustained. The claimant is ineligible to receive benefits effective July 26 and July 27, 1988, because he was not available for employment.

The decision of the administrative law judge is reversed.

COMMENT

The rule of this release should be limited to the Bar Examinations and not be extended to other type of examinations such as Civil Service, chauffeur’s license, etc.


A-750-2012

INDEX 1205 F-9
1235-4

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

August, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
RELATION TO OTHER DISQUALIFICATIONS
DURATION OF OFFERED EMPLOYMENT

Refusal of a one day assignment because of a previously scheduled personal engagement marking a significant event (i.e. claimant's birthday dinner celebration), constitutes a special circumstance and such refusal is with good cause.

A. B. 392,301

FINDINGS OF FACT: Claimant worked intermittently as a part time toll collector for the employer. She was laid off December, 1988. She filed an original claim for benefits effective .January 2, 1989. On January 18, the employer offered claimant work for one day only on January 20 from 3 P.M.to 11 P.M. Claimant refused the offer because her friends were giving her a birthday dinner celebration that evening. She requested work for an earlier or later shift, but none was available. She did not claim benefits for that day and so indicated in her reporting booklet.

OPINION: The evidence establishes that claimant refused an offer of one eight hour shift of work for the afternoon and evening of January 20 because of a birthday dinner celebration to be given in her honor. It further establishes that claimant did not seek benefits for that date, even though she would have worked an earlier or later shift. Under these particular circumstances, we believe that claimant had good cause to refuse the one-day assignment. We believe that it would be unreasonable to expect claimant to be available 24 hours a day, seven days a week and not be able to plan an activity where there is a mere possibility for a single day's work. Accordingly, we conclude, that claimant refused employment with good cause.

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

COMMENTS

1. This rule represents a limited exception to the principle that unavailability due to a self-imposed non-compelling reason does not preclude the imposition of a disqualification for refusal (A-750-1536). It should be carefully applied and limited to situations where all the circumstances present in this case exist. If the employment were of longer duration, claimant would be expected to accept the assignment. Also, it should be noted that the engagement must not only be prescheduled, but also mark an event of significance to the claimant. Attending a friend's birthday dinner, for example, would not be sufficient cause. However, the engagement need not be limited to personal events in claimant's life. Claimant's participation, as a member of the wedding party, in a marriage ceremony would also qualify.

2. In all cases of this nature claimant's availability, on the day in question, should be carefully explored.

In general, to resolve this issue it must be determined whether the shift which claimant is unwilling to work is one that is usual to her occupation. If not unusual, claimant's unwillingness to work this shift for a personal non-compelling reason, supports a determination of unavailability.

 



A-750-2013

INDEX 1105A-7

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

August, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
EVIDENCE REQUIRED
ISSUE PRECLUSION

The additional facts found by either a local office, an administrative law judge or the Appeal Board to resolve the Unemployment Insurance issue of misconduct may not contradict those facts previously found by an impartial arbitrator in the arbitrator's decision resolving the validity of claimant's discharge from employment

Matter of Lester   AD 2d   April 27, 1989

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 25, 1988, which ruled that claimant was entitled to receive unemployment insurance benefits. Claimant was employed as a water treatment plan trainee by the Ilion Water Commission. On November 11, 1986, when claimant was assigned the duties of "holiday duty person", he traveled some 20 miles away from the area of his employment to play in a hockey game. Charges were brought pursuant to civil Service Law section 75 and a hearing was conducted. The Hearing Officer determined that claimant was guilty of "dereliction of duty" and recommended the penalty of dismissal. The employer adopted the Hearing Officer's findings and recommendations and dismissed petitioner from his employment. Upon administrative appeal (see, civil Service Law Section 76), the Herkimer County Civil Service Commission affirmed.* After claimant's discharge, he made application for unemployment insurance benefits. An initial determination denying benefits due to loss of employment through misconduct was ultimately reversed by the Unemployment Insurance Appeal Board which found, inter alia, that claimant's loss of employment was not due to misconduct. The self-insured employer appeals, contending that, under the doctrine of collateral estoppel, the Board was bound by the administrative determination of the Civil Service Commission that the claimant was guilty of misconduct in his employment.


* Both parties allege in their briefs that petitioner appealed his dismissal to the Herkimer County Civil Service Commission, which affirmed in full the employer's determination. The Decision of the Herkimer County Civil Service Commission and the papers upon which it was based have not been part of the record on appeal. Our analysis presumes, however, that the Civil Service Commission adopted the findings of the Hearing Officer and made no additional findings of its own.


This court has previously determined that the Unemployment Insurance Appeal Board must give collateral estoppel effect to decisions of the Civil Service Commission when there is an identity of issue (Matter of Barton (New York City Human Resources Admin. -Ross), 81 AD2d 691, 692). However, even if the requisite identity of issue is found, the Civil Service Hearing Officer's determination of dereliction of duty will not compel a finding that claimant is disqualified from receiving unemployment insurance benefits. Although the Administrative Law Judge and the Board must give collateral estoppel effect to the Hearing Officer's factual findings regarding claimant's conduct and his conclusion of dereliction of duty, they need not give collateral estoppel effect to the "ultimate" finding of misconduct (Matter of Engel v. Calgon Corp., 114 AD2d 108, 110-111, affd 69 NY2d 753; see Matter of Guimarales (New York City Bd. of Educ.-Roberts), 68 NY2d 989, 991; Matter of Ranni {Ross}, 58 NY2d 715, 717-718).

In his detailed decision, the Civil Service Hearing Officer found the relevant rule of the employer to be that "employees performing the function of on-call duty persons are required to be readily available to respond to emergency calls"; that the rule was reasonably understood by the employees, including claimant; that the location of the hockey game was a "considerable distance away from, and in excess of the generally understood geographical limitations of travel placed on workers who are performing as on-call duty workers"; that the time expended in playing hockey, changing first into a uniform and later into street clothes and travel to and from the arena, resulted in "{claimant} being away from the acceptable 'on-call area' for a very substantial portion of the time during his 'on-call' duty"; and that claimant's actions were inexcusable and in dereliction of his duty as the paid on-call person. The Hearing Officer concluded:

Based upon the evidence in the record, I find that {claimant's} actions amounted to a callous disregard of his duty. Regardless of whether or not an emergency occurred during his hockey playing sojourn***{claimant}, while being paid to "be available", chose to leave the entire water distribution system at risk. He had an important responsibility to deal with and, by chancing it, totally ignored his duty.

The Board, while conceding that it was bound by the "facts {found by the Hearing Officer} insofar as they are pertinent to the issues before {it}", made the following findings:

The credible evidence thus establishes that claimant knew that he was to remain within beeper distance of the city. The evidence also establishes that he was not instructed in unequivocal terms what that distance was. On November 11, 1986, claimant was approximately twenty miles from his home when attempts to "beep" him were unsuccessful. The evidence fails to establish that this was an unreasonable distance and one which claimant should have known was outside beeper range. He took reasonable steps on November 11 to further ensure that he would receive emergency messages while at the rink. Under these circumstances, we conclude that claimant's loss of employment was not due to misconduct.

The issue distills to whether the Board made "independent additional factual findings" and formed its own independent conclusion as to whether such conduct constituted 'misconduct' for purposes of unemployment insurance" or, instead, impermissibly substituted its findings for those of the Hearing Officer (Matter of Guimarales {New York -Roberts}, supra, at 991). In our view, the Board's findings of fact impermissibly contradicted those of the civil Service Hearing Officer. Claimant's contention that the employer's rule was satisfied by maintaining a means of contact by beeper or telephone was addressed and specifically rejected by the Hearing Officer. Whether claimant was within beeper range or in a location where he could be reached on the telephone was irrelevant if at the time of contact he was too far away from the Village of Ilion, Herkimer County, to readily respond to an emergency. To underscore the fallacy of claimant's argument, the Hearing Officer stated:

If telephone availability was the only benchmark of the rule, arguably then, an on-call person who chose to visit Albany or Buffalo could still claim to be available "by telephone" to answer emergencies and, thereby, remain in compliance with the rule.

I find such an argument to lack merit since it confuses the issue of "availability to respond to emergency calls", i.e., to be able to do something with mere "availability to answer such calls".

The Board, essentially adopting claimant's fallacious argument, was similarly confused. The decision of the Board should, therefore, be reversed and the matter remitted to the Board for reconsideration upon appropriate findings.

Decision reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this court's decision.

COMMENTS

1. Matter of Guimarales, cited in this decision, is reported at A-750-1981. The comments in that decision discuss, in detail, the criteria to be applied to determine if an "arbitration" contains the necessary elements of due process and impartiality to be deemed binding.

2. Additional fact finding could be required if the arbitrator's decision is silent as to the cause of, or motive for, claimant's actions. In any event, the principles used to resolve other misconduct cases may be applied to the findings and a determination made.

3. Complex questions regarding issue preclusion may be referred, through supervisory channels to: Adjudication Services Office Interpretation Section , telephone: (212) 352-6850

 



A-750-2014

INDEX 1625-7

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

September, 1989

INTERPRETATION SEVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
CORPORATE OFFICER OR STOCKHOLDER

CORPORATE OFFICER -DISCONTINUATION OF BUSINESS

A corporate officer, who discontinues his business because he can no longer run it according to his personal preferences and does not take adequate steps to continue in business or adapt to current business realities, quits without good cause.

A.B. 392,727

FINDINGS OF FACT: Claimant was president and 50 percent stockholder of a corporation that operated a furniture upholstery business for 24 years. The business operated from two separate buildings which the claimant owned. He was paid a salary of $500 per week and continued to draw this salary until this business was closed on October 28, 1988. The business was profitable and was not losing money. Until 1987, the business had four full-time employees. The claimant managed the business and did the sales work for it. He was also an upholsterer himself. His wife acted as a bookkeeper and also did upholstery work. He last obtained an employee through an advertisement in November 1987. He later discharged this employee as he did not consider his work up to his standards. At the end of 1987, he decided to close the business, as he figured that he would have to ask customers to wait too long to have their work done. He thereafter operated the business with two full-time employees and one part-time employee. In June or July 1988, he stopped taking new orders and no longer advertised for any help. Instead, he had the business simply work on finishing up orders that were in the house.

OPINION: The credible evidence establishes that, the claimant decided to liquidate his business, not because of any financial crisis, but rather because he had found it increasingly difficult to obtain new skilled or new help that was trainable in his craft. The claimant was unwilling to have another person hired to work as an outside salesmen so that the claimant himself could work on the inside. Also, the claimant was unwilling to continue to work in the business at the modest scale on which he was operating. The record fails to disclose that the claimant took adequate steps to try to continue in the business or to adapt it to current business realities. He pursued only his own personal preferences on how he wanted to run the business. Under the circumstances, we must conclude that the claimant voluntarily left his employment without good cause.

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

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

COMMENT

Claimants, who allege that as employers they were unable to find sufficient qualified employees to operate their business, should be asked what efforts they made to find workers. They should always be asked if they utilized the Job Service. All of their efforts must then be evaluated against the standard of what. a reasonable person wishing to continue in business would have done, in order to determine whether the employer had a compelling reason to discontinue the business.

 



A-750-2016

INDEX 1430-8

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

September, 1989

INTERPRETATION SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
CORPORATION OFFICERS

CORPORATE OFFICER -SEASONAL CLOSING

A corporate officer is not totally unemployed when the business of the corporation is seasonally closed if the corporation has not ceased to exist and the business is expected to reopen for the upcoming season.

A.B.393,056

FINDINGS OF FACT: The claimant, a maintenance man, salaried at $7 per hour, worked for the employer corporation of which he was vice president and one-third shareholder. Claimant invested $50,000 in the corporation and subsequently made a further $30,000 loan to it. On November 1, 1988, the employer's business, a golf course and lounge closed for the off-season but expected to reopen on or about April 1, 1989. Claimant filed his original claim for benefits on November 7, 1988. After claimant filed for benefits, the employer continued to make its monthly mortgage payments and payments of $250 interest on the claimant's loan to it, had its premises snow plowed, as required, in case of fire emergency and continued in effect insurance policies on its business premises and equipment. All of these matters were handled by the employer's accountant, who is also secretary treasurer of the corporation and/or by the corporate president. After filing his original claim for benefits claimant received $441 in unemployment insurance benefits.

OPINION: The credible evidence establishes that prior to the period in issue, the claimant performed essential services for the employer corporation, maintaining its premises. He also had invested $50,000 in the corporation becoming a one-third shareholder and vice president and off season received $250 monthly interest for a subsequent loan of $30,000 to the employer. In Matter of DeVivo (51 AD2d 619, aff'g A.B. 204,662), the Court held that a claimant is not totally unemployed even if he has no responsibility in the corporation and has disassociated himself from working while he claimed unemployment insurance benefits because he stood to gain financially from the corporation's continuing operation in the future. Accordingly, we conclude that the claimant in the case presently before the Board was not totally unemployed and that the overpayment in question is statutorily recoverable pursuant to Section 597.4 of the Law, as amended September 5, 1983. In reaching our conclusions we also note that, the Courts have held that the Unemployment Insurance System was set up to protect wage earners who are unemployed through no fault of their own and was not meant to include the payment of benefits to self-employed persons and analogous corporate officials who are idle by seasonal inactivity (Matter of Wersba, 27 AD2d 890). As a principle and stockholder of the employer corporation, the claimant received interest of $250 monthly on his loan of $30,000 during the off season and stood to gain further financially when the corporation's golf course and lounge reopened for service to the public on or about April 1, 1989 (Matter of Saltz, 27 AD2d 968). Finally, the fact that the corporate employer herein did not remunerate claimant and was seasonally closed during the period in issue does not preclude the Board holding that claimant was not totally unemployed. While claimant's involvement with the corporate employer was minimal during the period in issue, the corporation had not ceased to exist and, in fact, claimant looked forward to its reopening in the spring of 1989, at which time he would again begin rendering his usual and customary services for it. (Matter of Withim, 134 AD2d 752). Accordingly, claimant was correctly held ineligible to receive benefits effective October 31, 1988 as he was not totally unemployed and was overpaid $441 in benefits which are recoverable.

DECISION: The initial determination of the local office holding the claimant ineligible to receive benefits effective October 31 though December 25, 1988, as modified at the hearing by the Commissioner of Labor's representative to be October 31, 1988 because he was not totally unemployed is sustained.

The initial determination of the local office charging the claimant with a recoverable overpayment of $441 in benefits is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

1. The principle cited above should not lead local office personnel to abandon the search for activity to establish a continuing employment relationship as outlined in Field Memorandum 1-78, "Corporate Principles II." Such activity is important to bolster a determination of lack of total unemployment. It is important also to establish activity by the corporate entity during the slack season, even if claimant is not the person performing the activity. This activity will substantiate the finding that the corporation has not ceased to exist and is expected to reopen.

2. Matter of DeVivo (51 AD2d 619) is reported at A-750-1837.

3. Matter of Wersba (27 AD2d 890) involved a husband and wife who had previously operated their seasonal business as a partnership and then incorporated. This case has been cited in many prior Appeal Board decisions. It is important in this type of case that claimants be asked whether their corporation had previously existed as a sole proprietorship or a partnership.

4. Cases where no activity during the slack period can be shown, either by the claimant or the corporation, should be referred through supervisory channels to Adjudication Services Office.

 



A-750-2017

INDEX 1225-2

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

May, 1990

INTERPRETATION SERVICE-BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
CONSCIENCE

Job Refusal Due To Religious Beliefs

Refusing a job because of a sincerely held religious belief is with good cause even though the claimant is not a member of an established religious sect.

Frazee v. Illinois Department of Employment Security et al

Supreme Court of the United States-decided March 29, 1989.

William A. Frazee, Appellant v. Illinois Department of Employment Security et al.

On Appeal From the Appellate Court of Illinois, Third District. (March 29, 1989)

Justice White delivered the opinion of the Court.

The Illinois Unemployment Insurance Act provides that "An individual shall be ineligible for benefits if he has failed, without good cause, either to apply for available, suitable work when so directed… or to accept suitable work when offered him ..." Ill. Rev. Stat., ch. 48, section 433 (1986). In April 1984, William Frazee refused a temporary retail position offered him by Kelly services because the job would have required him to work on Sunday. Frazee told Kelly that, as a Christian, he could not work on "the Lord's day." Frazee then applied to the Illinois Department of Employment Security for unemployment benefits claiming that there was good cause for his refusal to work on Sunday. His application was denied. Frazee appealed the denial of benefits to The Department of Employment Security's Board of Review, which also denied his claim. The Board of Review stated: "When a refusal of work is based on religious convictions, the refusal must be based upon some tenets or dogma accepted by the individual of some church, sect, or denomination, and such a refusal based solely on an individual's personal belief is personal and non compelling and does not render the work unsuitable." App. 18-19. The Board of Review concluded that Frazee had refused an offer of suitable work without good cause. The circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the agency's decision was "not contrary to law nor against the manifest weight of the evidence," thereby rejecting Frazee's claim based on the Free Exercise Clause of the First Amendment. Id., at 23.

Frazee's free exercise claim was again rejected by the Appellate court of Illinois, Third District. 512 N. E. 2d 789 (1987). The court characterized Frazee's refusal to work as resting on his "personal professed religious belief, and made it clear that it did "not question the sincerity of the plaintiff," id;, at 790, 791. It then engaged in a historical discussion of religious prohibitions against work on the Sabbath and, in particular, on Sunday. Nonetheless the court distinguished Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div. , 450 U.S. 707 (1981) ; and Hobbie v. Unemployment Compensation Appeals Comm'n of Florida, 480 U.S. 136 (1987), from the facts of Frazee's case. Unlike the claimants in Sherbert, Thomas, and Hobbie, Frazee was not a member of an established religious sect or church nor did he claim that his refusal to work resulted from a "tenet, belief or teaching of an established religious body." 512 N.E. 2d, at 791. To the Illinois Court, Frazee's position that he was "a Christian" and as such felt it wrong to work on Sunday was not enough. For a Free Exercise Clause claim to succeed, said the Illinois Appellate Court, "(T)he injunction against Sunday labor must be found in a tenet or dogma of an established religious sect. (Frazee) does not profess to be a member of any sect." Id., at 792. The Illinois Supreme Court denied Frazee leave to appeal. .

The mandatory appellate jurisdiction of this Court was invoked under 28 U.S.C. Section 1257(2), since the state court rejected a challenge to the constitutionality of Illinois' statutory "good cause" requirement as applied in this case. We noted probable jurisdiction, 488 U.S.______(1988), and now reverse.

We have had more than one occasion before today to consider denials of unemployment compensation benefits to those who have refused work on the basis of their religious beliefs. In Sherbert v. Verner, supra, at 410, the Court held that a State could not "constitutionally apply the eligibility provisions (of its unemployment compensation program) so as, to constrain a worker to abandon his religious convictions respecting the day of rest." Thomas v. Review Bd. of Indiana Employment Security Div., supra, also held that the State's refusal to award unemployment compensation benefits to one who terminated his job because his religious beliefs forbade participation in the production of armaments violated the First Amendment right to free exercise.

Just two years ago, in Hobbie v. Unemployment Appeals Comm'n of Florida, supra, Florida's denial of unemployment compensation benefits to an employee discharged for her refusal to work on her Sabbath because of religious convictions adopted subsequent to employment was also declared to be a violation of the Free Exercise Clause. In each of these cases, the appellant was "forced to choose between fidelity to religious belief and ...employment," id., at 144, and we found "the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee's choice." Ibid. In each of these cases, we concluded that the denial of unemployment compensation benefits violated the Free Exercise Clause of the First Amendment of the Constitution, as applied to the States through the Fourteenth Amendment.

It is true, as the Illinois court noted, that each of the claimants in those cases was a member of a particular religious sect, but none of those decisions turned on that consideration or on any tenet of the sect involved that forbade the work the claimant refused to perform. Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question. Never did we suggest that unless a claimant belongs to a sect that forbids what his job requires, his belief, however sincere, must be deemed a purely personal preference rather than a religious belief. Indeed, in Thomas, there was a disagreement among sect members as to whether their religion made it sinful to work in an armaments factory; but we considered this to be an irrelevant issue and hence rejected the State's submission that unless the religion involved formally forbade work on armaments, Thomas' belief did not quality as a religious belief. Because Thomas unquestionably had a sincere belief that his religion prevented him from doing such work, he was entitled to invoke the protection of the Free Exercise Clause.

There is no doubt that "(o)nly beliefs rooted in religion are protected by the Free Exercise Clause," Thomas, supra, at 713. Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163 (1965); Wisconsin v. Yoder, 406 U. S. 205, 215-216 (1972). Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause. We do not face problems about sincerity or about the religious nature of Frazee's convictions, however. The courts below did not question his sincerity, and the State concedes it. Tr. of Oral Arg. 35. Furthermore, the Board of Review characterized Frazeels views as "religious convictions," App. 18, and the Illinois Appellate Court referred to his refusal to work on Sunday as based on a "personal professed religious belief. 512 N.E. 2d, at 790. 1/

Frazee asserted that he was a Christian, but did not claim to be a member of a particular Christian sect. It is also true that there are assorted Christian denominations that do not profess to be compelled by their religion to refuse Sunday work, but this does not diminish Frazee's protection flowing from the Free Exercise Clause. Thomas settled that much. Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Here, Frazee's refusal was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection. 2/

The State does not appear to defend this aspect of the decision below. In its brief and at oral argument, the State conceded that the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect. Instead, the State proposes its own test for identifying a "religious" belief, asserts that Frazee has not met such a test, and asks that we affirm on this basis. We decline to address this submission; for as the case comes to us, Frazee's conviction was recognized as religious but found to be inadequate because it was not claimed to represent a tenet of a religious organization of which he was a member. That ground for decision was clearly erroneous.

1/ From the very first report of the Illinois Division of Unemployment Insurance claims adjudicator, Frazee's refusal of Sunday work has been described as "due to his religious convictions." In his application for reconsideration of the referee's determination; Frazee stated "I refused the job which required me to work on Sunday based on biblical principles, scripture Exodus 20: 8, 9, 10. Remember the Sabbath day by keeping it holy. Six days you shall labour and do all your, work but the seventh day is a Sabbath to the Lord your God. On it you shall not do any work."

2/ We noted in Thomas v. Review board, 450 U.S. 707, 715 (1981), that-an asserted belief might be so bizarre, so clearly non religious in motivation, as not to be entitled to protection under the Free Exercise Clause." But that avails the State nothing in this case. As the discussion of the Illinois Appellate Court itself indicates, claims by Christians that their religion forbids Sunday work cannot be deemed bizarre or incredible.

The State offers no justification for the burden that the denial of benefits places on Frazee's right to exercise his religion

The Illinois Appellate Court ascribed great significance to America's weekend way of life. The Illinois court asked: "What would Sunday be today if professional football, baseball, basketball and tennis were barred. Today Sunday is not only a day for religion, but for recreation and labor. Today the supermarkets are open, service stations dispense fuel, utilities continue to serve the people and factories continue to belch smoke and tangible products," concluding that "(i)f all Americans were to abstain from working on Sunday, chaos would result." 512 N.E. 2d, at 792. We are unpersuaded, however, that there will be a mass movement away from Sunday employ if William Frazee succeeds in his claim.

As was the case in Thomas where there was "no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create 'widespread unemployment,' or even to seriously affect unemployment," Thomas, 450 U.S., at 719, there is nothing before us in this case to suggest that Sunday shopping, or Sunday sporting, for that matter, will grind to a halt as a result of our decision today. And, as we have said in the past, there may exist state interests sufficiently compelling to override a legitimate claim to the free exercise of religion. No such interest has been presented here.

The judgment of the Appellate Court of Illinois for the Third District is therefore reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

COMMENTS

1) Although this case did not originate in New York State, we are bound by the principles stated by the Supreme Court.

2) The Court's ruling in this case is based on the First Amendment to the Constitution (as applied to the states through the Fourteenth Amendment) which provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For this reason, the belief in question must be rooted in religion. Claims personnel must determine first whether the belief is religious or secular. If the belief is religious, the second question is whether it is sincerely held.

3) Determining the latter is, as the Court observes, a difficult task. In most circumstances it will be clear whether the belief is religious or secular. Examples of secular beliefs include political convictions, economic theories, sociological speculations, etc. (see for example, Matter of Moran 34 AD 2d 694 A-750-1671).

To determine the sincerity of a religious belief it is reasonable to ask: the source of the belief; how long the belief has been held; other actions consistent with the belief, etc. It is also reasonable to ask, in determining sincerity, whether claimant is a member of an established religious sect. No one of these factors, taken in isolation, should be considered determinative of a claimant's sincerity.

Complex questions regarding whether a belief is religious or sincere may be referred through supervisory channels to Adjudication Services Office- Interpretation section, 212-352-6850

 



A-750-2019

Index No. 1110-12

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

May 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
ABSENCE AND LATENESS

MISCONDUCT DUE TO FAILURE TO NOTIFY EMPLOYER OF EXPECTED ABSENCE

Failure to notify an employer of an extended absence (one week), constitutes misconduct whether or not claimant knew of the employer’s notification policy.

A.B. 393,737

FINDINGS OF FACT: Claimant worked as a machine operator from 1971 to August 15,1988. The employer’s notification policy required employees to call in one-half hour before the beginning of the shift on any day of absence and on each day of absence unless management was advised that the absence would be for an extended period. Claimant was scheduled to go on vacation for two weeks from July 25, 1988 through August 5, 1988. He became ill while on vacation in Barbados. Claimant called his supervisor on August 5, 1988. He said in that telephone call that he would not be able to report to work on the following Monday because he had a stomach virus and was scheduled to see a doctor. Claimant called his supervisor again at approximately 6:15 a.m. on August 8, 1988, to say that he was still sick and was scheduled to see a doctor on that day. Claimant was treated by a doctor for his illness on August 8, 1988. He was advised to rest for about one week and authorized to return to work on August 15, 1988. The claimant did not contact the employer again until his return to work on August 15, 1988.

Claimant was a member of a union in contractual relationship with his employer. He filed a grievance concerning his discharge. A hearing was held before an impartial arbitrator at which both claimant and the employer were represented by counsel. There was a "full opportunity to adduce evidence, examine and cross-examine witnesses and to proffer exhibits…". Claimant’s discharge was upheld as a result of such arbitration hearing. The arbitrator found, inter alia, that claimant did not advise his supervisor that he was in Barbados when he called him on August 8, 1988, and, therefore the "Plant Manager understandingly expected that the grievant would be in for work the following day, or that he would hear from the grievant that he could not make is then."

OPINION: The credible evidence establishes that a claimant was discharged as a result of his failure to abide by his employer’s notification policy. It is noteworthy that the arbitrator specifically found that the claimant’s supervisor "understandingly expected" that the claimant would either report for work or that he would call in on August 8, 1988. Claimant should have advised his supervisor of his doctor’s diagnosis and that he was still in Barbados. Claimant has not offered any credible reason why he or his agent could not have called his employer from august 9 through August 14, 1988. The employer has a business interest in being informed of an employee’s whereabouts when he is not able to report to work. Whether or not claimant knew of his employer’s notification policy, we find that his failure to contact his employer for one week, subsequent to the visit to the doctor, rises to the level of misconduct within the meaning of the law notwithstanding that he was in Barbados. Finally, in view of our finding that claimant was discharged, the alternative initial determination of the local office, disqualifying the claimant because of a voluntary leaving of employment without good cause must be overruled.

DECISION: The initial determination of the local office disqualifying the claimant from receiving benefits because of a loss of employment through misconduct in connection therewith, effective August 8, 1988, is sustained.

The alternative initial determination of the local office disqualifying the claimant from receiving benefits because of a voluntary leaving of employment without good cause is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

  1. In this case claimant failed to notify his employer that he would be absent due to illness for approximately one week. An arbitrator found that the employer "understandingly expected" the claimant to report to work or be notified that claimant would be absent.
  2. Significantly, the Appeal Board found that "the employer has a business interest in being informed of an employee’s whereabouts when he is not able to report to work."

 



A-750-2020

Index No. 1110-13

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

May 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
ABSENCE AND LAENESS

MISCONDUCT DUE TO ABSENCE

Despite the lack of a previous personal individualized warning, an absence of three days for non-compelling reasons, is misconduct when claimant, who had frequently been late to and/or absent from work, had been made aware of the employer’s need for regular attendance, e.g., through a staff meeting.

A.B. 394,807

FINDINGS OF FACT: Claimant worked for employer as a mechanic for four years. On the last day that claimant actually worked, Monday, February 6, 1989 he advised his supervisor he would not be at work on Tuesday, February 7, because of a personal matter that he had to attend to in New Jersey. On the way to New Jersey claimant’s car broke down. Late Tuesday afternoon, claimant called the employer and told an assistant supervisor that he would not be in to work on Wednesday due to car trouble and because he still had to take care of his personal errand in New Jersey. On Thursday, February 9, claimant went to the employer's premises in a borrowed car to pick up his paycheck and told his supervisor that he would not be in to work on Friday because his car still had not been repaired.

Claimant was frequently late to and/or absent from work. Although claimant may not have received personal individualized warnings about his attendance, he was present at several general meetings at which the importance of regular attendance was stressed.

OPINION: The credible evidence establishes that claimant was discharged for excessive absenteeism. His final absences were due to his loss of regular transportation and for other personal reasons. It was incumbent upon claimant to seek other means of transportation to work. He did not even make an attempt to use public transportation. Furthermore, although he may have had compelling personal reasons to be absent one day no such reason was presented for his four-day absence. We disagree with the administrative law judge’s opinion that claimant was not warned that his conduct would lead to his discharge. He was told on several occasions along with his fellow workers of the employer’s need for their regular attendance. It is not necessary that there be a written warning. Claimant did not act as a prudent person seeking to protect his employment. Accordingly, we conclude that claimant lost his employment through misconduct in connection therewith.

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

The decision of the administrative law judge is reversed.

 



A-750-2021

Index No. 920 A-7
920 C-15

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

May 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
EMPLOYEES OF EDUCATIONAL INSTITUTIONS
REASONABLE ASSURANCE

REASONABLE ASSURANCE – ADDITIONAL CLAIM

To determine if reasonable assurance exists when claimant files an additional claim during a period between school terms, it is necessary to compare claimant’s earnings during the school year or term immediately preceding her filing with her anticipated earnings for the succeeding school year or term. Having done so, if it is determined that the provisions of Section 590.10 (or Section 590.11) should be invoked, all employment with educational institutions in the base period should be disregarded notwithstanding the fact that the same employer is involved and the anticipated earnings are substantially less than the base period earnings.

Matter of Rhoda Abramowitz

(Decided December 21, 1989)

Claimant worked at Baruch College of the City University of New York as an associate registrar from September 1980 through August 31, 1984. She was not reappointed for the 1984-1985 academic year. Concurrently, claimant served as an adjunct lecturer for Baruch’s English Department, a position she continues to hold.

In September 1984, claimant was awarded partial unemployment insurance benefits as a result of her termination from the registrar position. The University did not contest her eligibility to receive these payments. During the period that she received these benefits, namely, September 6, 1984 through December 23, 1984, which was the fall 1984 semester, she continued to teach as an adjunct lecturer. In November 1984, claimant was notified that she would be reappointed as adjunct lecturer for the spring 1985 semester, which commenced February 4, 1985 and ended June 6, 1985. On December 27, 1984, after her benefits flowing from her termination as registrar ceased, claimant filed for additional unemployment benefits for the winter vacation period between the fall 1984 and spring 1985 semesters. An Administrative Law Judge reversed the local unemployment office and held that claimant was entitled to benefits.

In February 1985, claimant was notified that her lecturer’s position would again be assured for the fall 1985 semester; nevertheless, on May 31,1985, she filed for additional benefits for the summer vacation period between the spring and fall 1985 semesters. The local office determined that she was eligible to receive benefits. The University appealed both the local office determination allowing for these benefits and the earlier determination of the Administrative Law Judge awarding benefits during claimant’s winter vacation. However, the University withdrew its request for a hearing on the 1985 summer vacation period pending the outcome of the Unemployment Insurance Appeal Board’s decision on claimant’s entitlement to benefits during the 1984 winter vacation period.

With respect to that case, the Board ultimately concluded that claimant was entitled to receive benefits. In doing so, the Board observed that "(c)laimant’s earnings as an adjunct lecturer were substantially less than her base period earnings as an associate registrar *** (and that she) was not subject to the provisions of *** Labor Law [Section 590(10)] during (the 1984 winter intersession)". Although the University filed a notice of appeal from this decision, that appeal was not perfected.

Thereafter, the Administrative Law Judge, believing himself to be bound by the Board’s decision in the winter vacation case, found that claimant was also entitled to benefits for the 1985 summer vacation period. The Board affirmed, prompting this appeal by the University. The University maintains, as it has throughout, that the Administrative Law Judge incorrectly compared claimant’s 1983 base period earnings with her earnings for the 1984 school year to determine whether she was eligible for unemployment during the summer of 1985. We agree.

Generally, an agency’s interpretation of statutes is afforded great weight, and will be upheld so long as it is not irrational or unreasonable [Matter of Lintz (Roberts), 89 AD 2d 1038]. Because the issue presented herein involves the interpretation of a statute, Labor Law Section 590(10), however, it is more appropriately for judicial resolution (see, id.). Moreover, in this instance the agency interpretation is unreasonable.

Labor Law Section 590(10) precludes some individuals employed with educational institutions from receiving unemployment benefits "during the period between two successive academic years or terms *** provided *** there is a reasonable assurance that the claimant will perform services in such capacity for any such institution or institutions for both of such academic years or such terms" (emphasis supplied). On December 24, 1986, the United States Department of Labor issued an unemployment insurance program letter to guide state agencies in applying this statutory exception to unemployment insurance entitlement. The letter declares, "Reasonable assurance exists only if the economic terms and conditions of the job offered in the second period are not substantially less (as determined under State law) than the terms and conditions for the job in the first period." In a field memorandum dated March 2, 1987, the State Department of Labor further refined the United States Department of Labor’s interpretation of "reasonable assurance" to mean "the same 'ten percent' criterion we use for determining if a job offer is ‘substantially less’ favorable to the claimant than the prevailing wage" [see, Labor Law Section 593(2)(d)].

At issue here is what the terms first and second period mean in the United States Department of Labor’s letter. Claimant maintains that the board correctly compared her 1983 base period earnings, that is, "the period of fifty-two consecutive weeks ending on the Sunday immediately preceding (her) filing of (her) valid original claim" (Labor Law Section 520), on September 3, 1084, an amount approximately $28,000, with her earnings for 1984, the year she worked only as an adjunct lecturer. In contrast, the University contends, and rightly we believe, that claimant’s base period earnings have no relevancy in these circumstances, that her earnings during successive academic years or terms are the only periods to be considered, and that the Board should therefore have compared claimant’s earnings for the 1985 spring term with her earnings for the 1985 fall term.

And whether the statute directs a year by year or term by term comparison is of no practical moment in this particular case because of the amount of claimant’s earnings. For the fall of 1984 and spring of 1985, she earned $1,918.12 and $2,192, respectively, for a total of $4,110.12 during the 1984 academic year. In addition, she earned $3,836 for the fall of 1985 and $3,261 for the spring of 1986, for a total of $7,042 for the 1985 academic year. Consequently, whether the comparison employed is successive academic years or terms, claimant was reasonably assured that "the economic terms and conditions of the job offered in the second period (were) not substantially less *** than the terms and conditions for the job in the first period", whether the first and second periods be the 1984 and 1985 academic years or the 1985 spring and fall semesters. Under either comparison, claimant earned substantially more during the second period and, hence, she was not entitled to benefits under Labor Law Section 590(10).

Inasmuch as the decision of the Board incorrectly compared claimant’s base period earnings for the 1983 academic year with her earnings for the 1984 academic year to determine whether she was eligible to receive benefits for the 1985 summer vacation, it is contrary to the statutory language and must be reversed.

Decision reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this court’s decision.

COMMENTS

  1. In this case, claimant worked for the same educational institution in the base period ending in September 1984, and during the subsequent school year ending in June 1985, and was given a reasonable assurance by that institution for the upcoming school year beginning in September 1985. The question presented was should the comparison of earnings made in June 1985 to determine reasonable assurance be between the base period earnings (up to September 1984) and the anticipated earnings for the 1985-1986 school year, or between the 1984-1985 school year earnings (ending in June 1985), and the anticipated earnings for the 1985-1986 school year. The Court clearly chose the latter. As a result, claimant was ineligible for benefits in June 1985, although her anticipated earnings were considerably less than her base period earnings for her still unexpired benefit year. This result would also occur if the school year or term immediately preceding the filing of the additional claim was with a different education institution than the base period employer or if the employer giving the reasonable assurance is a different employer.
  2. Although the Court stated it was unnecessary for them to resolve the question of whether the statute directs a year by year or term by term comparison, it has been our practice to compare school term to school term when appropriate (cf A-750-1916), so that a claimant whose earnings are not substantially less in the upcoming school term than in the prior school term should be held subject to Section 590.10 or Section 590.11, as appropriate, regardless of her earnings in the entire prior school year.

For example: Claimant is employed as a full time regular teacher in the 1987-1988 school year. The claimant is excessed and put on the substitute list. When claimant files an original claim in June 1988 she would be eligible. The claimant then worked for the fall 1988 school term as a substitute and earned $1,000 for twenty days of substitute work. This term ended on January 12, 1989. The claimant is given reasonable assurance of earning at least $1,000 for the new school term to begin on January 29, 1989. When the claimant files an additional claim on January 15th, she would be subject to Section 590.10 because her earnings in the upcoming school term are not substantially less than her earnings in the prior school term.

 



A-750-2022

Index No. 1105-B6
1170-5
1605-A13

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

June 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
RELATION OF OFFENSE TO DISCHARGE
NEGLECT OF DUTY
VOLUNTARY OR INVOLUNTARY

MISCONDUCT AFTER GIVEN NOTICE

Claimant, having given two weeks notice, is subject to a misconduct determination when discharged earlier if, by her actions, she demonstrates she does not intend to perform her job duties.

A.B. 394,334

FINDINGS OF FACT: The claimant, a store manager, worked for a retail toy store for almost four years until April 5, 1989. On April 4, the claimant heard that the employer decided to rehire a former employee to work at a different branch. The claimant thereupon objected to the rehiring and decided to quit her job. She gave two weeks notice. On April 5, the claimant decided that she would no longer perform her duties as store manager and turned in her keys to the employer. Later that day the claimant left the store early without notifying her employer, and thereby left the store without management. On April 6, the employer decided to accept claimant’s resignation effective that day because she refused to perform her job duties. Claimant was not paid through her two-week notice period.

OPINION: We agree with the conclusion of the judge that claimant’s separation from employment was not voluntary and that her actions cannot constitute a voluntary leaving of employment without good cause. However, we disagree with the judge’s conclusion that claimant’s actions did not constitute misconduct in connection with her employment. The evidence establishes that while the claimant intended to remain on payroll for two more weeks, she did not intend to perform her job duties. In addition, she left her branch store unattended on April 5, 1989 without notice to the employer. Under the circumstances, we conclude that her discharge was for reasons amounting to misconduct in connection with her employment.

DECISION: The initial determination of the local office disqualifying the claimant from receiving benefits effective April 6, 1989 because she lost her employment through misconduct in connection therewith is sustained.

The decision of the administrative law judge is reversed.

COMMENTS

  1. This case illustrates the exception to Matter of Senator (76 AD 2d 652) as discussed in Comment 3 of release A-750-1897.
  2. In cases where claimant’s actions after given notice constitute misconduct, it is irrelevant that claimant is not paid through her notice period.

 



A-750-2023

Index No. 1645A-9

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

June 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE

QUITTING A JOB TO RELOCATE WITH SPOUSE TO ACCEPT NEW EMPLOYMENT

Quitting a job to move with a spouse who voluntarily relocates to accept new employment in a different locality is with good cause.

A.B. 394,536

FINDINGS OF FACT: Claimant worked for the employer bank for ten years. On January 9, 1989, claimant’s husband was transferred by his company to South Florida as a branch manager. As a result of her husband’s transfer, claimant submitted her resignation to the employer on January 11, 1989 because she and her family were relocating to Florida.

We note that the objecting employer contends that claimant’s husband was not transferred but obtained new employment in Florida and therefore neither claimant nor her husband had a compelling reason to relocate out-of-state. The employer has produced no evidence to support its contention. Furthermore, we note that the employer’s conclusion is in error because the Board does not distinguish between a claimant whose spouse obtains new employment and a claimant who spouse is transferred in determining if there is good cause for leaving employment under the Law.

OPINION: The credible evidence establishes that claimant’s husband was transferred by his employer to South Florida and that claimant resigned her position with the employer herein to relocate with her husband to that State. We conclude that claimant’s leaving her employment to relocate with her husband because of his transfer by his employer was with good cause.

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

The employer’s objection is overruled.

The decision of the administrative law judge is affirmed.

COMMENT

Although in this case the Board did not find that the spouse voluntarily relocated, in its opinion, the Board stated that it makes no distinction between a claimant whose spouse obtains new employment, and a claimant whose spouse is transferred, in determining if there is good cause for leaving employment under the Law. This would seem to eliminate any of the ambiguity in the Board’s position discussed in A-750-2008 concerning voluntary transfers. It does not matter whether it is new employment or a voluntary transfer. The Board, consistent with Field Memorandum 5-87, has concluded that a claimant who quits a job to follow a spouse who has employment in and relocates to an area beyond normal commuting patterns does so with good cause.

 



A-750-2024

Index No. 1645A-10

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

June 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE

QUITTING A JOB TO RELOCATE WITH A SPOUSE

Quitting a job to relocate with a spouse is without good cause, if the reason for the relocation is personal and non-compelling, notwithstanding the fact that claimant’s spouse quit her job with good cause (to retire and withdraw from the labor market).

A.B. 396,137

FINDINGS OF FACT: Claimant was employed as a truck driver for about two years until March 2, 1989. He earned $300 per week as a full-time worker. He resided in New York with his wife who owned the house in which they lived. Claimant’s wife decided to retire from her employment. She sold the house because she wanted to retire to North Carolina which she considered her Home State. Claimant left his employment and relocated with his wife to North Carolina. He had no prospect of employment in North Carolina when he left.

OPINION: The credible evidence establishes that claimant voluntarily left his employment to relocated out of state with his wife. However, the evidence does not establish a compelling reason for the relocation. Although claimant’s wife had good cause to leave her employment to retire, her reasons for then relocating to North Carolina were personal and non-compelling. We reject claimant’s contention that he had to relocate because he could not afford accommodations in Queens on his salary. Accordingly, absent any good cause for relocation to North Carolina, we must conclude that the claimant voluntarily left his employment without good cause.

DECISION: The initial determination of the Out-of-State Resident Office is sustained.

The decision of the administrative law judge is reversed.

COMMENT

This rule is consistent with the discussion in Field Memorandum 5-87 that "It should be noted that the test of compelling reason must be applied to the reason for the move and not to the spouse’s reason for leaving employment."

 



A-750-2025

Index No. 1155-5

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

June 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
HOURS

MISCONDUCT – REFUSAL OF WEEKEND WORK

Refusal to occasionally work a shift on a Saturday and/or Sunday solely because it interfered with claimant’s social life constitutes misconduct.

A.B. 394,349

FINDINGS OF FACT: Claimant was employed as a mechanical inspector by a manufacturer of aerospace equipment from 1974 through April 8, 1989. The employer changed his shift and working hours, requiring him to work every fourth Saturday from 8 p.m. to 4 a.m. Claimant had previously worked a 3 p.m. to 11 p.m. shift. The employer also needed the claimant every fourth week on a Sunday from 8 p.m. to 4 a.m. He would not be required to work the Saturday which preceded the working Sunday. The change in hours was necessitated by an additional manufacturing load, whereby claimant’s inspection service was needed. The claimant refused to work the changed hours. He stated to his employer that it interfered with his social life. He was given several written warnings concerning his refusal. He was discharged from his job because of his insubordination by continuing to refuse to work this assignment.

OPINION: The credible evidence establishes that the claimant refused a reasonable order of his employer, necessitated by the increased manufacturing load which required the claimant’s services. We do not agree with the administrative law judge that the hours the claimant was required to work on Saturdays and Sundays, once a month, were an adequate reason for his refusal of the employer’s order. The lack of time to socialize over a weekend, given by the claimant as the sole reason for his refusal to work the changed shift, is inadequate and non-compelling. Accordingly, we conclude that claimant’s refusal rose to the level of misconduct under the law.

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

The decision of the administrative law judge is reversed.

COMMENT

While generally a substantial change in claimant’s conditions of employment may give him good cause to quit a job, such change was not involved in this case. Claimant was already working one weekend day per month. Claimant’s days and hours of work were not changed. Instead, because of an additional manufacturing load, claimant was requested to work one more day per month overtime. Refusal to do so is misconduct. (c.f. A-750-1788)

 



A-750-2026

Index No. 1605 A-14

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

July 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
VOLUNTARY OR INVOLUNTARY

ELECTED OFFICER

An elected official becomes involuntarily unemployed upon expiration of his term of office; despite the fact that he chose not to seek re-election.

A.B. 398,861

FINDINGS OF FACT: Claimant was employed as the president of a local of a national union. His elected term of office ended on August 22, 1989. Claimant chose not to seek re-election and his employment ended on such date.

OPINION: The credible evidence establishes that claimant’s employment came to an end upon the expiration of his term of office as president of a local union. He did not voluntarily leave his employment. We do not agree with the conclusion of the administrative law judge that claimant’s decision not to run for re-election constituted a voluntary leaving of his employment. We conclude that claimant was under no obligation to seek re-election even if he had no offer of other employment. Continuing work was not available to claimant upon the expiration of his term. Accordingly, we conclude that claimant’s employment ended under non-disqualifying conditions.

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

The employer’s objection is overruled.

The decision of the administrative law judge is reversed.

COMMENT

In some cases a claimant serving as a union officer may be on a leave of absence from his employment. In the event his term of office expires, he may have the right to return to work for a former employer. A failure to exercise this right may be a voluntary leaving of employment (see A-750-1978)

 



A-750-2027 (Revised)

Index No. 865 B-5
870-4

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

July 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
REGISTRATION, REPORTING & CERTIFICATION
MISINFORMATION
MISUNDERSTANDING

RETROACTIVE REDUCTION IN WORKER’S COMPENSATION

A claimant’s belief that he was not entitled to unemployment insurance benefits while receiving full worker’s compensation cannot serve to excuse his failure to comply with registration requirements even though the worker’s compensation benefits are retroactively reduced.

A.B. 397,309

FINDINGS OF FACT: The claimant worked as a driver for a bakery for about four years until July 24, 1989, when he sustained an on-the-job injury. He applied for and was held eligible to receive worker’s compensation benefits at the full rate through August 28, 1989. Claimant was examined by his physician on or about August 31. Based on the physician’s report following this examination, the claimant’s weekly disability benefits were reduced from $300 to $150, effective August 28. Claimant was not aware of this reduction until he received written notice thereof from the insurance carrier on September 16. He filed an original claim for benefits effective September 18. Claimant did not contact the local office prior to that date. Claimant believed he would not be eligible for unemployment insurance benefits while he was receiving full worker’s compensation benefits.

OPINION: The credible evidence establishes that claimant did not register his claim for unemployment insurance benefits during the period under review because he believed he would be receiving full worker’s compensation benefits and that he would therefore not be entitled to unemployment insurance. Although the claimant’s assumption was not unreasonable, it cannot serve to excuse his failure to comply with registration requirements. It is implicit in claimant’s request to have his claim predated that he was ready, willing and able to perform some sort of work during the period under review. It was therefore incumbent upon the claimant to inquire at the local office concerning his entitlement to benefits. The Board has previously held in a similar case that claimant "knew or should have known that the result of the doctor’s examination may result in a change of his disability status and could have contacted the local office for proper instructions." (AB 379,477; see also AB 380,938 and AB 384,021). Under these circumstances, we conclude that the claimant’s failure to comply with registration requirements cannot be excused and he is therefore ineligible to receive benefits during the period under review.

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

The decision of the administrative law judge is reversed.

COMMENTS

  1. The Appeal Board found that implicit in a request for such predated claim is the presumption that claimant was ready, willing and able to work for that period, and if that were true, claimant should have inquired at the local office.
  2. The receipt of full worker’s compensation usually, but not always, precludes unemployment insurance eligibility. It is based on claimant’s total inability to work in his/her occupation (see Interpretation Service Index 750 A1 and 2; A-750-306 and A-750-326). Whether claimants receiving total or partial disability are eligible for benefits is dependent on his/her capability of any work that exists in the labor market and his/her efforts to find such work

 



A-750-2029

Index No. 1645A-11

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

September 1990

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE

FOLLOW SPOUSE – REASONABLE COMMUTE

Quitting a job because of the increased travel time and distance involved is without good cause when claimant and a spouse had moved to be closer to the location of the spouse’s newly obtained employment, and the total travel time and distance is not unreasonable.

A.B. 398,342

FINDINGS OF FACT: Claimant worked as a legal secretary for the employer in Poughkeepsie, New York, for approximately five months. When claimant’s husband found work in Danbury, Connecticut, they purchased a home and moved to New Milford from Poughkeepsie. New Milford, Connecticut is approximately forty miles, and a one-hour drive from the employer’s New York Location. Claimant left her job in New York because she felt she would receive a higher rate of pay working in Connecticut, and also avoid New York State income tax, and because she did not want to drive forty miles to and from work each day.

OPINION: The credible evidence establishes that claimant had no compelling reason to leave her job. Her relocation to Connecticut with her husband was for convenience and other personal reasons. There is no evidence that her husband’s new job in Connecticut necessitated their relocation there. Furthermore, even if the job had required their relocation, such relocation was not a sufficient reason for claimant to have quit her employment in New York. Claimant readily admits that her new home is within a one-hour drive from the employer’s location in Poughkeepsie, New York. Such a commute did not place an undue burden on her and therefore, did not provide her with a compelling reason to leave her job. Claimant’s reasons for leaving her employment were personal and non-compelling. Accordingly, we conclude that claimant voluntarily left her job without good cause.

DECISION: The initial determination of the Out-of-State Resident Office is overruled.

The decision of the administrative law judge is reversed.

The claimant is disqualified from receiving benefits effective August 7, 1989 because she voluntarily left her employment without good cause, until she has subsequently worked for an employer on not less than three days in each of five weeks and earned at least five times her weekly rate. Self-employment and earnings from self-employment will not count.

COMMENTS

  1. This case clarifies the principle set forth in Field Memorandum 5-87 Item II B that, "Quitting because a move extends claimant’s travel time is with good cause only if the resultant travel time is unreasonable for claimant’s locality." It is important to realize in these cases that the party that is moving is the claimant and not the employer. The administrative law judge, in holding claimant eligible for benefits, had determined that her move was a circumstance that occurred in the course of her employment that permitted an examination of whether claimant would have had good cause to refuse the job in the first instance (Section 593.1). He then considered Section 593.2(c) which holds a refusal is with good cause if:

"The employment is at an unreasonable distance from his resident, or travel to and from the place of employment involves expense substantially greater than that required in his former employment unless the expense be provided for."

The ALJ, in order to find good cause for the quit, relied on the fact that the employer did not offer to offset claimant’s increased travel cost. The portion of the statute, involving the expense of commuting, should generally not be invoked unless it involves a new offer of employment or the employer moves its location (See A-750-1016). Of course, claimants are only expected to use the usual ways of getting to work for employers in their labor market.

  1. To determine what is reasonable travel time, Index 1280 and 1722 should be consulted. The time of 90 minutes has not been considered unreasonable in most instances.
  2. The Appeal Board also took note of the fact that the move closer to the location of the spouse’s job was not a compelling necessity. The couple could have continued to reside in their prior resident with the spouse undertaking a commute similar to that of the claimant. Another consideration is whether claimant took reasonable "measures to find alternate affordable living accommodations that would be within the required proximity to her husband’s new work place, as well as within a reasonable commute to her employment" (AB 390,126). A location halfway between the two jobs could have been considered.

 



A-750-2030

INDEX 1152-1

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

January , 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
ALCOHOL AND DRUGS

MISCONDUCT -CONTROLLED SUBSTANCE

Claimant's misconduct in connection with his employment may not be excused by dependence on a controlled substance because, unlike alcoholism, the use of such substance is subject to strict legal prohibitions against possession and sale, and the negative consequences of its use can or should be reasonably foreseen.

AB 398,533A

FINDINGS OF FACT: The claimant, an advertising account executive worked for a cable television company from March 2, 1987 until October 31, 1988. For the first 15 months of claimant's employment, the cable company found his job performance satisfactory. In May, 1988, claimant began using cocaine during his weekends off from work. Initially claimant used between one half gram to a gram each weekend. However, by June or July, 1988, claimant had graduated to daily use, and was taking from three to seven grams a day. Claimant subsequently started "free-basing" the drug for a more intense high. As a result of his cocaine use, claimant experienced long periods of sleeplessness, high blood pressure, extreme nervousness, sweating, and hallucination.

Claimant's job performance began to decline dramatically due to the effects of the drug. Claimant missed appointments with clients, failed to show at staff meetings, was frequently absent without notice, handled his business records carelessly, and failed to meet sales quotas.

On several occasions, the employer spoke to the claimant regarding his failure to perform his job satisfactorily and about his poor attendance. During these discussions, claimant blamed his difficulties on family problems, never mentioning his cocaine usage. By October 28, 1988, the employer was prepared to give the claimant a final warning because of poor work performance and attendance. Claimant was notified that a meeting was set for that day to discuss these topics. However, because he had been using cocaine heavily, and was suffering from its effects, claimant did not go to work on October 28 and did not call the employer to explain his absence. The employer thereafter discharged the claimant for his failure to attend the meeting and his overall work record.

OPINION: It is the public policy of New York State, as set forth in Title 18 of the Labor Law, that unemployment benefits be paid only to those persons "who are unemployed through no fault of their own." Labor Law, Section 501. Pursuant to this policy, Section 593 of the Law provides that a claimant will be disqualified from receiving benefits due to a loss of employment through misconduct in connection, therewith. In construing the statute, it is the task of the Appeal Board to determine whether a claimants loss of employment can be ascribed to his own acts of commission or omission in connection with his employment, which acts constitute misconduct, or should be attributed to reasons beyond the claimant's control and therefore excused.

The Appeal Board has long held that loss of employment due to failure to report to work as scheduled or failure to perform one's job duties, without compelling reason in either instance, is misconduct under the Law and will result in a claimant's disqualification from receiving unemployment insurance benefits (Matter of Goldfarb, 52 AD 2d 965, aff'g Appeal Board 212,765; Matter of Bossert, 53 AD 2d 742, aff'g Appeal Board 205,651). The Board has also held hat such misconduct can be excused where the claimant was absent due to illness which prevented his appearance at work or where a claimant was too sick to ,carry out his work assignment (Matter of Overt, 50 AD 2d 659, aff'g, Appeal Board 202,343; Matter of Sunderland, 121 AD 2d 779, aff'g Appeal Board 361,649)

In view of expert medical opinion which considers alcoholism a disease, the Board expanded this concept to include alcohol addiction as an illness which would excuse some, otherwise disqualifying acts, (Matter of Francis, 56 NY 2d 600, aff'g Appeal Board 293,620). However, while the Court has approved this approach, certain limitations have been placed upon its application. It has been expressly held by the Court that a claimant suffering from alcoholism is not incapable of committing misconduct in connection with employment (Matter of Gaiser, 82 AD 2d 629, rev'g Appeal Board 317,468). Therefore, not-all disqualifying acts would be excused as a result of the condition (e.g. illegal acts in connection with a job or other acts which, concededly legal, might foreseeably have serious negative consequences for the employer). Furthermore, a claimant alleging that he suffers from this condition must produce competent medical evidence to support his contention as well as evidence that the condition directly resulted in the act of misconduct (Matter of Moore, 144 AD2 123, aff'g Appeal Board 376,380; Matter of Allen, 162 AD 2d 753, June 14, 1990, aff'g Appeal Board 370,379.) The Courts have also mandated that any eligibility should be subject to a continuing review of claimant's capability for work (see Gaiser at 630).

Although the net result of these limitations is to more clearly define the reach of the Board's original concept, we believe our approach was and is a rational one. Although the effects of the misuse of alcohol are well documented and tragic, the mere use of this substance is not subject to widespread condemnation and, in moderation, is generally approved. The government, both state and federal, imposes few sanctions against the use, sale, and possession of alcoholic beverages; such restrictions that exist usually involve age limitations on consumption and driving while under the influence of alcohol.

In the case before us we are faced with the question of whether the Board's previously discussed rulings on alcoholism should be expanded to include drug addiction. The evidence establishes that claimant was discharged from his employment as a result of his failure to perform his job duties and, specifically, for his last absence from work on October 28, 1988. The claimant was absent that final day and had been unable to do his work consistently due to the detrimental effects of cocaine usage. The claimant contends that his omissions should be excused because they were the result of drug dependency which is an addictive illness, like alcoholism, and therefore beyond his control.

While we do not question that claimant suffers from drug addiction and that the acts which caused him to be discharged were themselves caused by the addiction, we do not agree with claimant's contention. Although we recognize some similarity between the conditions of alcoholism and drug dependency, we find significant differences in the way each condition is judged by society, and consequently, how each is, and should be viewed under New York State law. These differences affect the Board's consideration of the claimant's contention and mandate a different outcome in a case involving drug addiction than that found in our previous decisions involving alcoholism.

With respect to claimant's argument that drug dependency and alcohol addiction are essentially the same, we have already noted that the use of alcohol is largely approved, while the use, sale, and possession of non-prescription controlled substances are almost universally condemned. Vast amounts of money are appropriated on federal, state, and local governmental levels in an effort to prevent the sale and distribution of these substances because of the recognized deleterious effects across all socioeconomic levels of the country. Among the more dramatic consequences of the abuse of controlled substances are drug related deaths, crime among youth, decline in economic productivity, and dissolution of the family. While some of these effects may also be associated with alcoholism, the improper use of controlled substances is considered to pose a far more serious health hazard due to the greater likelihood of addiction and the resultant more destructive impact on society ("use in moderation" is not likely). As a result, the use of these substances is subject to stringent legal prohibitions against possession and sale. It is clear that the two conditions under review are not identical in nature or consequences. We cannot, in view of clear governmental policy deploring the abuse of controlled substances, accord the same legal consideration under the Labor Law to drug dependency as that given to alcohol addiction.

As we have determined not to extend our rulings to cases involving the improper use of controlled substances, we must determine whether claimant's acts which resulted in his discharge constituted misconduct in connection with his employment.

We consider it axiomatic that an employer has a legitimate expectation that its employees will be present during their scheduled hours of work and be capable of performing their duties as effectively as possible. In this case, the record establishes that claimant was unable to meet this expectation for reasons he contended were beyond his control. We believe that given the extensive education on the problem of drug addiction, and the many public and private sector efforts to prevent the spread of drug abuse, few people can be unaware of the perils of using a controlled substance. We believe it is reasonably foreseeable that even an occasional use of drugs such as cocaine could result in addiction and a resulting detrimental effect on every aspect of a person's life, including employment. A person who voluntarily engages in such activity, which might eventually cause a decline in attendance and work performance, must bear some responsibility for his decision. As a loss of employment under these circumstances would be due to the claimant's own act, and was a reasonably foreseeable consequence of that act, such loss of employment is considered to be for misconduct.

Accordingly, with respect to the claimant in this case, we set forth the following conclusions:

  1. Claimant is, by his own admission, suffering from a drug addiction.
  2. In order to become addicted, claimant had to have engaged by his own choice in the use of a controlled substance.

Claimant makes no contention that such use was in any way approved.

  1. Claimant's acts, which caused his discharge, namely, his absence and poor job performance, were a consequence of his decision to use a controlled substance.
  2. The personal consequences of the act of using a controlled substance were reasonably foreseeable. Claimant knew or should have known that such an act could. lead to the deterioration of his employment relationship and possible loss of job. Thus, claimant's subsequent acts or omissions with respect to his job cannot be excused by his addiction.

Under these circumstances, we conclude that claimant's course of conduct, which began with his voluntary use of cocaine and culminated in an overall decline in job performance and failure to appear for work, was not that of a reasonable and prudent person who desired to protect his employment. We find that, in view of public policy which strongly deplores this activity, claimant's conduct cannot be excused by his addiction and constituted misconduct in connection with his employment. To the extent that this decision is inconsistent with any of the Board's prior rulings, they will no longer be followed.

DECISION: The decisions of the Board filed May 24, 1989 (Appeal Board 392,989) and filed August 18, 1989 (Appeal Board 393,976A), are hereby rescinded.

The initial determination of the local office is overruled.

The employer's objection is sustained. The claimant is disqualified, from receiving benefits effective October 31, 1988 because he lost his employment through misconduct in connection therewith. Claimant is disqualified until he has worked three days in each of five weeks and earned five times his weekly benefit rate. Self-employment and earnings therefrom will not count.

The decision of the administrative law judge is affirmed

COMMENT

An exception to this rule may arise if a claimant alleges that his/her substance dependence resulted from "involuntary" use of drugs (i.e., treatment in a hospital). In such case, evidence to support this contention should be required. In addition, evidence of claimant's efforts to cure the dependence would be necessary in light of the Appeal Board's findings regarding the consequences of drug use.

 



A-750-2031

INDEX 1110-14

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

February 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
ABSENTEEISM & LATENESS

ABSENTEEISM - APPEARANCES IN COURT

Discharge because of absenteeism caused by court appearances resulting from claimant's arrest for an offense committed outside the course of employment, is misconduct, if claimant ultimate]y is convicted of the offense, since the absence is the result of the claimant's own act and from circumstances beyond his control.

AB 400,973

FINDINGS OF FACT: The claimant was last employed as an electrician's helper for an electrical contracting company for four years until March 9, 1990. In January 1990, the claimant was placed on probation because of tardiness. In November 1989, he had been arrested for driving while intoxicated and for possession of stolen property. As a result, claimant had to appear in Court all day on three days while employed, the last day being March 8, 1990. His attendance in Court caused him to miss work and an apprentice training course that was held after work. Claimant was discharged on March 9, 1990, because of his absences. On April 26, 1990, the claimant pleaded guilty to the charges.

OPINION: The credible evidence establishes that the precipitating cause for the claimant's discharge was his failure to report to work and training on March 8, 1990, when he was in Court to answer Criminal charges. On April 26, 1990, the claimant pleaded guilty to the charges. Under these circumstances, claimant's absence! on his last day of work is considered to be the result of claimant's own act land not from circumstances beyond his control. Accordingly, we conclude that claimant's absence from work constituted misconduct in connection with his employment. See Appeal Board #346, 787-A.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

1) This case is the logical extension of the rule set forth in A-750-1971, that a discharge for absenteeism resulting from incarceration is misconduct.

2) It must be noted that until and unless the claimant is convicted of the offense, absenteeism caused by court appearances cannot be the basis for a misconduct determination. Cases of this nature where a claimant is initially found eligible because there is no evidence of claimant's guilt, should be processed to A.S.O. consistent with C.S. Manual III -6226 (Field Memorandum 5-89).

3) Although the Appeal Board found that claimant was on probation for tardiness, they do not rely on prior warnings to reach their opinion that claimant's absence and consequent discharge were the result of his own act. In AB 346,787A, claimant was absent on his last day of work because he was arrested for a crime to which he subsequently pleaded guilty. In that case, they opined: "Under these circumstances, claimant's absence on his last day of work is considered to be the result of claimant's own act and not from circumstances beyond his control." Based on these two holdings, the implication in Comment 1 of A-750-1971 that a prior warning regarding attendance is required for absences of less than one week is obsolete, and should be so marked.

4) Of course, this rule should not be extended to appearances in court as a witness in a case where claimant is not the defendant.

 



A-750-2032

INDEX 1670-3

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

February 1991

INTERPRETATION SERICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
MARRIAGE (Section 593.1(b})

VOLUNTARY QUIT -MARRIAGE

A claimant who quits a job intending to get married is subject to disqualification for voluntary quit due to marriage, even though the claimant shortly thereafter relocates to follow that spouse.

Matter of Gaus, 167 Ad 2d 736, decided November 21, 1990

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 30, 1989, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

Claimant voluntarily left her employment on December 31, 1988 and was married on January 7, 1989. Shortly thereafter, she relocated to Florida with her husband, who was starting a new job which he had accepted in November 1988. Claimant then applied for unemployment insurance benefits with the local unemployment office, which ruled that, pursuant to Labor Law Section 593(1)(b), claimant was disqualified from receiving any benefits because she left her employment due to marriage. Claimant objected to this determination, contending that she left her job to accompany her husband to Florida. Following a hearing, an Administrative Law Judge overruled the initial determination, concluding that the evidence failed to establish that claimant actually left her employment due to marriage. The commissioner of Labor appealed and the Unemployment Insurance Appeal Board reversed and reinstated the initial determination. This appeal by claimant followed.

We affirm. Labor Law Section 593(1)(b) provides that a claimant shall be disqualified from receiving benefits after a voluntary separation from his/her last employment if "such voluntary separation was due to claimant's marriage". In this case, it is undisputed that, at the time claimant left her employment, she was unmarried and contemplated being married one week later. Based upon this evidence, the Board concluded that claimant's voluntary separation from employment was "due to {her} marriage", within the meaning of Labor Law section 593(1)(b). This determination is consistent with that in Matter of Essapour (Levine) (50 AD 2d 657), wherein we affirmed the Board's disqualification of a claimant who voluntarily left his employment in order to marry in Persia. In our view, the validity of the Board's application of the statute in Matter of Essapour remains unaffected by subsequent legislation which amended Labor Law Section 593(1)(b) to remove the disqualification of a married claimant who voluntarily terminates his/her employment in order to follow a spouse to another locality (see, Labor Law section 593{l}{b} {former (2)}; L 1987, ch 418, section 1). Thus, the Board's application of the statute in this case should be upheld. Further, although claimant testified that she did not leave her employment due to marriage and that she would still be working for her former employer had she not moved to Florida with her husband, we conclude that her testimony regarding the sequence of events after she left her employment on December 31, 1989 constitutes substantial evidence supporting the Board's decision.

Decision affirmed, without costs.

 



A-750-2033

INDEX 1655-9
1110-15

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

February, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
HEALTH
MISCONDUCT
ABSENCE & LATENESS

MEDICAL EVIDENCE

Discharge for failure to report for work on a date set by her employer, based on a single examination by its doctor, is a loss of employment under non-disqualifying conditions if claimant's own physician has determined, based on a continuing course of treatment, that she was unable to work at that time.

A.B. 401,183

FINDINGS OF FACT: The claimant worked as a key entry operator from May 4, 1987 until January 4, 1990. On January 5, 1990, claimant had visited her doctor who had examined her and diagnosed that she had lymphadenitis and recommended that she not work from January 5, 1990 until an undetermined time in the future. Claimant's doctor had prepared a statement reflecting his diagnosis and recommendation which claimant delivered to her supervisor on January 5, 1990. On January 11, claimant was examined by the employer's doctor at their request. The examination consisted of listening to claimant's heart beat and reading her blood pressure with no further tests or examination. The employer's doctor certified claimant for disability leave for the next two weeks. In the interim, claimant's personal physician referred her to another doctor on January 24, who examined the claimant and ran a series of tests, and advised claimant not to return to work for at least another three or four weeks. He advised that she needed time to rest and recuperate. Claimant's doctor also recommended that claimant seek physical therapy. By letter dated January 30, 1990, the claimant was directed by her employer to "please report to work within five days at your regular starting time, or your name will be dropped from the payroll." Upon receiving this letter on February 2, claimant contacted her doctor to see whether it was advisable to return to work at that time. Again her doctor advised against it. Claimant called her supervisor on February 5, the next business day, to advise him that she was unable to return to work that day, but in order to protect her job, requested that she take her two week vacation time to recuperate until she was able to return to work. Claimant's supervisor told the claimant that either she report that particular day or else she would be discharged. Not returning to work, claimant was discharged. Claimant filed an original claim for benefits on February 14, when she was again ready and able to work.

OPINION: The credible evidence establishes that the claimant was discharged because she was unable to return to work as a directed by her employer because of medical circumstances which were beyond her control. The employer's directive to return to work was obviously based on their own doctor's report that claimant, was able to return to work by February 5, 1990. The Appeal Board has previously ruled that when a claimant's medical condition is documented so as to render claimant unable to work, she is not required to accept the opinion of the company doctor based on one examination over the considered opinion of her personal physician (Appeal Board 372,444). Substantial evidence in the record establishes that claimant was given an ultimatum by her employer to either return to work on February 5, or be terminated. However, claimant's testimony and documentary evidence establishes that as of February 5, 1990, the claimant was not able to return to work because she was recuperating from a disability and was advised by her doctor not to return to work at that time. Because the claimant did not return to work on that particular day, she was discharged. Under these circumstances, claimant lost her employment under non-disqualifying conditions.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

1. Although the Administrative Law Judge had sustained the employer's objection that claimant quit without good cause, the Appeal Board found instead that claimant was discharged.

2. When claimant's medical condition is documented so as to render claimant unable to work, the claimant is not required to accept the opinion of the company doctor, based on one examination, over the considered opinion of her personal physician, based on a more extended period of treatment.

3. This principle should be carefully applied. Other evidence of claimant's efforts to protect her job should be considered. Significantly, in the above case, claimant offered to use two weeks of vacation time to continue her recovery period.

4. In evaluating similar cases, another element that should be considered is any evidence submitted by the employer that would indicate a reason other than health for taking off the period of time in issue (e.g., a request for vacation time made prior to this period which was denied by the employer).

 



A-750-2034

INDEX 1685 B-4
1710-10

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

February, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
MOVE FROM LOCALITY
OTHER REASONS FOR MOVING
SAFETY

RELOCATION - FEAR OF SAFETY

Quitting employment to move out of the area, because of a bona fide fear for safety, is without good cause if the claimant's fear results from incidents in the neighborhood of her residence and she failed to make reasonable efforts to find living accommodations elsewhere within commuting distance that would have allowed her to continue working for the employer.

A.B. 401,401

FINDINGS OF FACTS: Claimant worked for the employer herein for approximately 12 years, until February 29, 1990. Between October, 1989 and January 3 , 1990, claimant personally experienced two incidents in and around the apartment building where she lived, where her personal safety was threatened. As a result of these incidents, she became extremely frightened and was hesitant to venture in the vicinity of her building, unescorted. Claimant submitted her letter of resignation immediately after the second incident in January, 1989 but did not leave her employment until February 20th for her employer's convenience. Claimant was afraid to continue living in New York and made no attempt to find another apartment within commuting distance of her employment. After the claimant resigned, she relocated to Florida where she owned a condominium.

OPINION: The credible evidence establishes that claimant left her employment to relocate to Florida because she was afraid to continue living in New York. The incidents which frightened claimant all occurred in the area in which she lived, not where she worked. While claimant may have had reason to be fearful for her safety within the neighborhood in which she lived, she had no such reasonable fears regarding the area where she worked. We therefore, find that claimant's experiences and resulting fears, while establishing a good reason to move from her particular apartment or neighborhood where she lived, fail to establish compelling reasons to warrant her leaving her employment. Claimant admittedly made no attempt to look for housing in the New York city area within commuting distance of her employment choosing to move to a condominium she owned in Florida. We, therefore, conclude that claimant's reasons for leaving her employment were personal and non-compelling and do not constitute good cause under the Unemployment Insurance Law.

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

The decision of the administrative law judge is reversed.

COMMENTS

1. In all cases involving fear for safety, the alleged incidents which caused this fear should be confirmed with the appropriate authorities (i.e. police, hospital, doctor, psychiatrist, social worker, clergyman, etc.)

2. What constitutes reasonable efforts to find other living accommodations is dependent on a number of factors. In general, if claimant made no effort to protect her job by seeking housing elsewhere, a quit without good cause would apply. If claimant alleges seeking housing elsewhere, then the adequacy of her search must be evaluated. To do so, we must determine in what areas claimant was willing to live, the monthly payment (rent or mortgage) she was willing to make and what efforts she actually made to find living quarters, This information must then be evaluated against what is usual in that locality and what the claimant can afford to pay based on her (and her spouse's) income. Examples of diligent efforts to find housing include consulting real estate or rental agents and following up advertisements in the newspapers.

 



A-750-2035

INDEX 1460 A-16

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

February, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
PAYMENTS WITHOUT WORK
VACATION PAY

VACATION PAY - TERMINATION AGREEMENT

When an agreement negotiated between the employer and claimant's union assigns the payment of vacation pay to a specific period following the last day of work, that time is a designated vacation period within the meaning of Section 591.3(b) of the Labor Law. It is not significant that the agreement was made in settlement of disciplinary proceedings seeking claimant's discharge. This is distinguished from situations where the employer unilaterally seeks to allocate the accrued vacation credits to the period following the claimant's last day of work.

AB. 402,926

FINDINGS OF FACT: The claimant worked as waste treatment plant operator for about 38 years until May 3, 1990, when he was discharged. A few weeks thereafter, a settlement agreement was entered into after claimant's union intervened on his behalf. Pursuant to terms of this agreement, the discharge was converted to a suspension without pay for the period from May 3 until June 3, 1990; the claimant was placed on paid vacation and holiday leave for the period from June 4, through July 29, 1990; and the claimant resigned effective August 1, 1990.

OPINION: The credible evidence establishes that the period of June 4 through July 29, 1990, was a properly designated vacation for which benefits are not payable, pursuant to the section 591.3(b) of the Labor Law. It is significant that the designation of this time as vacation and holiday leave was agreed to between the claimant and the employer prior to the period. It is furthermore immaterial that the agreement was reached as a settlement of disciplinary proceedings seeking the claimant's discharge. The facts in this case are readily distinguishable from those situations where an employer seeks to unilaterally allocate accrued vacation credits to the period following a worker's last day of work. Accordingly, we conclude that the claimant is ineligible to receive benefits during the period under review.

DECISION: The initial determination of the local office holding claimant ineligible to receive benefits during a paid vacation period is modified to be effective June 4 through July 29, 1990 and, as so modified, is sustained.

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

COMMENT

This case is distinguished from AB. 352,269A reported as A-750-1951. In that case the assignment of claimant's vacation time to the period following the last day worked was a unilateral action by the employer expressed in its employee manual. This unilateral act did not establish a designated vacation period.

 



A-750-2036

INDEX 1645A-12
1670-4

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

June, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
FOLLOWING SPOUSE
MARRIAGE

VOLUNTARY QUIT AFTER MARRIAGE

When claimant plans to leave her employer after she marries, but the date to leave is indefinite and dependent on her spouse's future permanent assignment to a specific location; the claimant's subsequent quitting is due to following her spouse, not marriage, and is with good cause.

AB 403,739

FINDINGS OF FACT: Claimant worked as a hospital aide for the employer herein for approximately eight and one half years. On March 11, 1990, claimant married a member of the United states Marine Corps, who was temporarily stationed in North Carolina. At the time of her marriage, claimant intended to relocate to wherever her husband was permanently stationed but did not know where that would be, nor when he would receive his final orders. He received orders for a five year assignment to Camp LeJeune, North Carolina in April, 1990. Claimant quit her job to relocate to North Carolina on June 15, 1990, when her husband had obtained housing for them.

OPINION: The credible evidence establishes that while claimant planned to leave her employment after she married, the date she was to do so was indefinite. Her husband was temporarily stationed in North Carolina at the time of their marriage. Claimant intended to relocate when her husband was permanently stationed. They did not know where that was to be or when it would occur. As the date of claimant's relocation was indefinite, we cannot say that she left her employment due to her marriage. Under the circumstances herein, we conclude that she left her employment to join her husband following his permanent posting by the united States Marine Corps and his obtaining housing for them. Accordingly, we conclude that claimant separated from her employment under non-disqualifying conditions.

DECISION: The initial determination of the Out of State Resident Office is overruled.

The decision of the administration law judge is affirmed

COMMENT

This rule should be carefully applied and limited to the specific elements present in this case. If claimant's new spouse had a permanent job location and it was their intent to move, claimant's working for a limited period of time after the wedding would not suffice to change the nature of the quit from one due to marriage (c.f. AB 386,025). Similarly, a claimant who informs the employer, prior to marriage, of a definite date she intends to leave, quits due to marriage.

 



A-750-2037

INDEX 1420-14
1480 E-4

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

July, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
Total or Partial Unemployment
Self Employment

SPOUSES OF FAMILY HOME CARE PROVIDERS

A claimant may be totally unemployed despite assisting his/her spouse, a Family Care Provider, by sharing in domestic chores and lending a helping hand to the residents in their home as a matter of common courtesy.

AB 405,115

FINDINGS OF FACT: Claimant was employed as a truck driver and lost that employment under non-disqualifying conditions. Claimant's wife has been certified by the New York State Office of Mental Health as a Family Care provider in her own home. She cares for six elderly women in her home. Claimant is not certified to provide any care to these residents nor is he employed by his wife or the State to render any service for the residents. Claimant does no more at home than he would do if his wife did not care for these residents. He removes the garbage, does some house cleaning, and the normal chores of changing a light bulb and so forth.

On his original claim form, claimant stated he did not work or perform services for a company owned by a relative.

OPINION: The evidence establishes that claimant is not employed by his wife who is a certified Family Care home provider by the New York state Office of Mental Health. Even if claimant rendered a helping hand to his wife or these residents, it is merely common courtesy on his part. In cleaning his own home or taking out garbage, he did no more than any other spouse in sharing domestic chores. The determination that claimant lacks total unemployment under these circumstances is erroneous and tends to obstruct state policy encouraging family care home providers. We conclude that claimant is totally unemployed and is eligible for unemployment insurance benefits since claimant was not employed by a relative, claimant did not make a misrepresentation. Accordingly, no forfeiture penalty should be imposed.

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

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

COMMENTS

  1. Although this case deals with the Office of Mental Health, a similar program is also run by the Office of Mental Retardation and Developmental Disabilities.
  2. A Family Home Care Provider is a licensed individual whose private home is supervised by the New York State Office of. Mental or the Office of Mental Retardation and Developmental disabilities as a residence for clients of these agencies. These clients live-under the same roof, share meals, social hours and family experiences with the provider family.

It is important to establish by fact finding, with both the claimant and the licensing agency whether the claimant as well as the spouse has been licensed. Spouses of licensed family Home Care Providers are considered totally unemployed unless that spouse is also a licensed Family care provider.

  1. The amount of time the spouse of a Family Care Provider spends helping his/her spouse or the residents should be examined to determine whether claimant is available for work.

 



A-750-2038

INDEX 1605-A-15
1615-2

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

July 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
Voluntary Separation
General
Voluntary or Involuntary
Anticipation of Discharge or Layoff

EMPLOYER AGREES TO EARLIER DISCHARGE

Where a definite date of separation under non-disqualifying conditions has been set by the employer, a request by claimant to leave the job at an earlier date, when agreed to by the employer, did not. constitute a voluntary leaving without good cause.

AB 405,053

FINDINGS OF FACTS: Claimant worked as a bartender at a restaurant for about 11 months until August 30, 1990. He was informed on that day by the employer's president that he was being discharged because of unsatisfactory work performance and that his last day of work would be September 8, 1990. He finished his shift that evening, but felt uncomfortable about continuing to work for the next week. On the following night, he returned to work and asked the president if the president would agree to terminate him immediately because he felt uncomfortable. The president agreed and gave the claimant his last paycheck.

OPINION: The record establishes that the claimant was discharged on August 30, 1990 because of unsatisfactory work performance, said discharge to take effect September 9, 1990. The employer consented to accelerate claimant's discharge to August 31, 1990 upon claimant's request. Under these circumstances, the Board concludes that there was no voluntary separation (see Appeal Board 393,146). The initial determination should be overruled.

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

The decision of the administrative law judge is reversed.

COMMENTS

  1. As a general principle, a claimant who quits in anticipation of discharge does so without good cause. An exception to this general rule was first enunciated by the Appellate Division in Matter of Grieco (41 AD. 2nd 799). The Court found that the claimant's leaving with the employer's acquiescence one day earlier than his scheduled date of discharge did not constitute a voluntary leaving, but rather an involuntary termination. Based on this case, and AB 391,146 cited by the Appeal Board, it is clear that the number of days should not be considered controlling. The essential, question is whether the employer's decision to discharge is definite and irrevocable (i.e. could any improvement in claimant's job performance between the date of notice and the intended date of discharge change the employer's decision). If so, and the employer consents to an earlier date, the separation is involuntary.
  2. This case should be distinguished from the rule reported in A-750 -1914 that:

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

If the claimant refuses to continue working to the proposed date of discharge, the two day time limit established in A-750-1914, would apply and an earlier leaving would be voluntary. If the claimant's request for an earlier discharge is granted, then the leaving is involuntary. Obviously, careful fact-finding is required to distinguish between these two different scenarios.

  1. A claimant who files an original claim prior to the effective date of the initially scheduled discharge should be questioned regarding availability. The reason for requesting an earlier leaving may indicate either an inability or unwillingness to work during that period.
  2. This case replaces the rule listed in the Interpretation Service Index at 1615-2. There was no A-750 released in support of that comment.

 



A-750-2039

INDEX 1125-1

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

August, 1991

INTERPRETATION SERVICE-BENEFIT CLAIM
MISCONDUCT
ALCOHOL

ALCOHOLISM - CAUSAL RELATIONSHIP

Alcoholism can excuse misconduct only if there is substantial evidence to show that the claimant is an alcoholic, and that the alcoholism caused the behavior for which claimant was terminated.

Matter of Allen 162 AD 2d 753

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 9, 1986, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a laborer for the United states Department of the Interior, National Park Service. His employment was terminated following various incidents in which claimant allegedly made threatening remarks to his superiors and others at his place of employment. There were further claims that claimant drank alcoholic beverages on the job contrary to his conditions of employment. Claimant initially was determined eligible for unemployment benefits because of alcoholism. The employer objected and a hearing, at which claimant did not appear, was held. An Administrative Law Judge (hereinafter ALJ) overruled the initial determination and concluded that claimant was disqualified from receiving benefits due to misconduct.

Claimant applied to reopen and a further hearing was held. Claimant appeared and testified at this hearing, along with his supervisor. Claimant acknowledged that he was an alcoholic and testified that he had undergone successful treatment in the 1970s. He denied making any threats or drinking on the job. He made no claim that any alcoholism affected his behavior. Claimant's supervisor detailed the incidents of claimed misconduct. The ALJ granted reopening and sustained the employer's objection, finding that claimant's misconduct was responsible for his discharge. On administrative appeal, the Unemployment Insurance Appeal Board affirmed the ALJ finding that despite any alcoholism, claimant's behavior constituted misconduct. This appeal followed (while this appeal was pending, we affirmed resettlement of the record {154 AD 2d 732}).

Claimant contends that the finding of misconduct is not supported by substantial evidence and the failure to consider claimant's alcoholism is arbitrary and capricious. We disagree. Alcoholism can excuse disqualifying misconduct if there is substantial evidence to show that the claimant is an alcoholic, the alcoholism caused the behavior for which the claimant was terminated and the claimant was available for and capable of work (see, e.g., Matter of Moore {County of Monroe- Hartnett}, 144 AD 2d 123, 124). In this case, claimant never argued that any alcoholism caused the behavior at issue. Rather, claimant's defense to the charge of misconduct was simply to deny the alleged threatening conduct. These conflicting versions of the circumstances raised a factual issue for the Board which it resolved contrary to claimant's position. That claimant is an admitted alcoholic, even if recovered, does not foreclose the possibility of his committing disqualifying misconduct (see, Matter of Gaiser {General Mills-Ross}, 82 AD 2d 629, 630, appeal dismissed 55 NY 2d 1039). On this record we conclude that the Board's determination that claimant is disqualified from receiving unemployment benefits due to misconduct is supported by substantial evidence and is not arbitrary and capricious.

COMMENTS

  1. The principles established by this decision were discussed in detail in Field Memorandum 6-82, Alcoholism. That memorandum should be reviewed in conjunction with this release.
  2. In the Matter of Moore cited by the Court, claimant was discharged for excessive absenteeism. In that case, in which determination of misconduct was ultimately affirmed, the Court held that unless there is evidence that specific absences were caused by claimant's illness, alcoholism could not excuse claimant's misconduct. This type of case requires careful fact-finding to identify the exact incident that caused claimant's discharge and to demonstrate the causal connection, if any, between claimant alcoholism and that incident.
  3. Anytime we find that claimant is suffering from alcoholism, we must consider whether claimant was available for and capable of work.

 



A-750-2040

INDEX 1125-3

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

August, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol

ALCOHOLISM -REPORTING TO WORK

A discharge for reporting to work intoxicated is not misconduct if the claimant is an alcoholic whose drinking is beyond his control.

AB 191,630

FINDINGS OF FACT: Claimant, a maintenance man, worked for a hospital for approximately 5 1/2 years until October 29, 1973. At various times during the period of his employment claimant reported for work in an intoxicated condition or with the smell of liquor on his breath. The employer tried to assist him with his drinking problem. The employer suggested that if it deducted $25 a week from his salary and deposited it in a savings account for him, he would not have enough money to drink. On November 17, 1970, the claimant acknowledged that he had been spending all his money on drink and authorized the employer to deduct $25 a week from his salary and save it for him. The claimant was repeatedly warned that if he continued to report to work smelling of liquor, he would be discharged. On October 29, 1973, he reported for work in an intoxicated condition and was sent home. When he reported on the following day in the same condition, the employer terminated his employment on October 31, 1973. The claimant is an alcoholic, who tried to overcome his condition, but was unable to do so.

OPINION: Alcoholism is a disease. The claimant is an alcoholic and was sick during the period of his employment. Although he made an effort to overcome his addiction to alcohol, he was unable to do so. The employer tried to help claimant to stop his drinking, but did not meet with success. Claimant lost his employment because he reported to work in an intoxicated condition. Since it appears that his drinking was beyond his control and he was unable to overcome his illness, we conclude that claimant did not deliberately provoke his discharge, nor did he voluntarily leave his employment.

However, the matter of claimant's availability for and capability of employment should be referred to the insurance office for investigation and determination.

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

The decision of the referee is affirmed.

The matter of claimant's availability for and capability of employment is referred to the insurance office for investigation and determination.

COMMENTS

1. Although this case was decided under the provoked discharge theory which was greatly restricted by Matter of James 34 NY2d 491; (A-750-1775), the principle that such an action is not misconduct remains valid. The causal connection between claimant's illness and his action is clear.

2. This case was previously reported under Index 1125-2 without an A-750 release in support of that rule.

 



A-750-2041

INDEX 1125-8

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

August, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol

ALCOHOLISM -ALCOHOL FREE AGREEMENT

A discharge for failure to remain alcohol free as agreed by a stipulation to an arbitration award is not misconduct if claimant's failure to do so is the direct result of claimant's alcoholism.

AB 384, 707

The claimant worked as a community associate for the sanitation department of a large municipality from June 29, 1971 through November 5, 1984, when he was discharged. The claimant grieved his discharge. By arbitration award, dated August 23, 1986, predicated on a settlement reached upon between the employer and the claimant's union the claimant was reinstated to his position on October 14, 1986, and placed on probation for one year. Included in the award were provisions that the claimant remain involved in a program for alcoholic abuse and meet the requirements of said program that he remain alcohol and drug free on a permanent basis and that: the employer had the right to submit the claimant to relevant tests for alcohol or drug abuse. The said award included a finding that claimant was suffering from alcoholism. On August 4, 1987, the claimant was given a breathalyzer test and the test read .142, indicative that he was under the influence of alcohol. The claimant was summarily discharged because he violated the stipulation entered into by the said arbitration award, namely to remain alcohol free.

OPINION: The credible evidence establishes that the claimant was discharged due to his violating the terms of the stipulation made part of the arbitration award, that he remain alcohol free. Significantly, there is no indication or contention that the claimant was discharged because he failed to attend the alcohol assistance program. Under the circumstances, it is clear that the direct cause for his discharge was his alcoholism. The Court and the Appeal Board have repeatedly held that alcoholism is an illness, so that the claimant may not be held responsible for actions which directly result from his drinking. (See Matter of Francis, 56 NY 2d 600; Appeal Board 371,774). The case before the Board is similar in relevant circumstances to a previous Appeal Board case, wherein the Board held that a claimant who was absent because he had been drinking, was suffering from alcoholism and was discharged because of this absence, was discharged under non-disqualifying conditions. (See Appeal Board 382,990). Although an employer may discharge an employee for any lawful reason, not every such reason rises to the level of misconduct. Under the circumstances, we conclude that the claimant was discharged under non-disqualifying conditions.

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

The employer's objection is overruled.

The decision of the administrative law judge is reversed.

COMMENTS

1. This case is being substituted for the rule associated with AB 218,416. It stresses the causal connection between claimant's action and his illness.

2. If claimant had failed to attend the alcohol assistance program, this would have resulted in a disqualification due to misconduct, consistent with Matter of Restifo, 88 AD2d 1045; A-750-1950.

3. Field Memorandum 6-82 "Alcoholism", should be reviewed in connection with this decision.

 



A-750-2042

INDEX 1110-16
1125-11

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

August, 1991

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Absence and Lateness
Alcohol

ALCOHOLISM -ABSENTEEISM

A discharge for repeated absence from work is not misconduct if claimant's absences are attributable to claimant's disease of alcoholism.

AB 382,990

FINDINGS OF FACT: The claimant worked as a clerk-typist for the United States Postal Service from November, 1983 until May 29, 1987. During the course of his employment the claimant had several absences which were unauthorized. On January 1, 1987, a notice of proposed removal was issued to the claimant because of his unauthorized absences. The employer and the claimant's union met, and stipulated that the proposed notice of removal be stayed, and that the claimant be placed on three months probation. It was further stipulated that the claimant would be considered to be on final warning, and that he would face discharge if he violated the employer's rules and regulations. Subsequently, on March 3, April 17 and April 21, the claimant was absent without leave. His absences were due to his having been drinking. He made an effort to contact supervisory personnel. The claimant is an alcoholic. As a result of these last three unauthorized absences, the claimant was discharged.

Before these last three absence, management suggested to the claimant that he attend the employer's program for employees with a drinking problem. The claimant attended almost ten open sessions of this program. He also was advised that if he could not make the schedule and session to let the counselor know. Claimant found that these sessions were not productive. In May, 1987, claimant started attending and has continued attending programs given by alcoholics anonymous. He has been attending such program. several times a week.

OPINION: The credible evidence establishes that the claimant was discharged due to his last three unauthorized absences, which were attributable to his alcoholism. significantly, there is no indication nor contention that the claimant was discharged because he failed to attend the employer's assistance program or that such attendance was a condition of continued employment. Under similar circumstances an employee's failure to participate in such a program on a level which was acceptable to the employer has been held not to rise to the level of misconduct (see Matter of Grajales, 104 AD 2nd 688; see Appeal Board 378,787).Under the foregoing circumstances, his discharge was directly due to his disease of alcoholism, and does not constitute misconduct (see Matter of Francis, 56 NY 2nd. 600). Accordingly, we conclude that the claimant was discharged under non disqualifying conditions.

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

The decision of the administrative law judge is reversed.

COMMENTS

1. This rule is being substituted for the rule associated with AB 245,002. It stresses the causal connection between the claimant's action and his illness.

2. Field Memorandum 6-82 "Alcoholism", should be reviewed in connection with this decision.

 


 

A-750-2043

INDEX 1195-7

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

April 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Criminal Acts (Section 593.4)

FELONY MISCONDUCT -DETAILS DISCOVERED AFTER DISCHARGE

A claimant is subject to the twelve month disqualification for criminal misconduct when subsequently convicted of related acts constituting a felony if such actions occurred while engaged in the employment in question and there is a sufficient link between these acts and the reason for the loss of employment, even if the original reason for discharge was only based on suspicion.

Matter of Powers AD2d decided November 21, 1991

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 22, 1990, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment as a result of an act constituting a felony in connection with his employment.

Claimant's employer suspected that claimant had misappropriated its funds and had engaged in other financial improprieties for his personal gain. When claimant could not satisfactorily explain the financial irregularities, he was permitted to submit a resignation in lieu of discharge.

After his termination and following an investigation by Federal authorities, claimant was charged with two felony counts of bribing a public official in violation of 13 USC 201(c)(1)(A). Subsequent to his resignation, claimant obtained employment elsewhere until August 12, 1987 when he lost that employment under non disqualifying conditions. After filing a claim for unemployment insurance benefits, he received benefits through February 21, 1988 which were subsequently determined recoverable by the Commissioner of Labor because claimant was disqualified from receiving benefits in that he lost his employment as a result of the acts alleged in the felony charges. An Administrative Law Judge overruled the Commissioner's determination. Following the Commissioner's appeal, the Board reversed the Administrative Law Judge's decision and sustained the Commissioner's determination.

We affirm. Claimant was properly disqualified from receiving benefits pursuant to Labor Law Section 593(4) because he lost his employment due to an act constituting a felony in connection with his employment. Claimant conceded that the acts which led to his indictment occurred while engaged in the employment at issue. Given that these actions were committed during the course of claimant's employment and eventually led to his felony conviction, we find a sufficient nexus between claimant's loss of employment and those actions to warrant disqualification (see, Labor Law Section, 593{4}). Accordingly, inasmuch as the determination is supported by substantial evidence in the record, it should be affirmed (see, Matter of Mende {Levine}, 50 AD2d 662).

COMMENTS

1. This case dealt only with the issue of a discharge for a felony misconduct (Section 593.4) because the claimant had subsequent employment prior to filing his claim. A similar rule concerning the same principle, regular misconduct (Section 593.3) is reported in the Interpretation Service Index in Section 1150 C-4 (AB 1360-39).

2. Determinations of criminal misconduct are issued by Adjudication Services Office (U.I. Manual III 6226).

 



A-750-2044

INDEX 1110-17
1120-3

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

April 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Absence and Lateness
Acknowledgment and Agreements

ABSENTEEISM IN SPITE OF AGREEMENT

Discharge for absenteeism caused by a verified illness is not misconduct despite a probation agreement that any future absences would be cause for immediate dismissal.

AB 408,972

By initial determination of the local office, the claimant was disqualified from receiving benefits because of a loss employment through misconduct in connection therewith effective March 16, 1991. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated May 16, 1991 the Administrative Law Judge sustained the initial determination.

The claimant appealed the judge's decision to the Board.

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

FINDINGS OF FACT: The claimant was employed as a machine operator for a manufacturing company for about two years until March 15, 1991. He had a record of excessive absenteeism for which he was discharged in January, 1991. After his union intervened, the claimant was reinstated on a 180 day probation period, with the condition that any future absences would be cause for immediate dismissal. On March 15, 1991 the claimant called the employer shortly after the start of his shift, stating he would be absent because he was ill. He visited his doctor later that day. The claimant presented a doctor's note to the employer on his return indicating that he was unfit for work on March 15, 1991, and was cleared to return to work on March 18, 1991. Nevertheless, the claimant was discharged pursuant to the terms of the reinstatement agreement, because he was absent on March 15.

OPINION: The credible evidence establishes that the claimant was discharged for being absent on March 15, 1991, in violation of a probation agreement during which the claimant would be subject to dismissal for any absence in the probationary period. However, the claimant had a doctor's note to verify that he was ill on that day and the claimant had called his employer to report the circumstances of his absence. Accordingly, we conclude that the claimant's actions did not constitute misconduct and his job ended under non disqualifying circumstances.

DECISION: The initial determination of the local office is overruled. The decision of the Administrative Law Judge is reversed.

 



A-750-2045

INDEX 1640 B-9
1735 B-2 c

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

May 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Assignment To Other Work
Promotion

VOLUNTARY QUIT -DEMOTION

Choosing layoff, rather than accepting demotion to a position previously held, is a voluntary quit without good cause when the employer, after a reasonable trial period, determined that claimant is not performing satisfactorily in the new position.

AB 406,302

By initial determination of the local office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective November 3, 1990. The claimant requested a hearing.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated January 25, 1991, the administrative law judge overruled the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant worked for a retail auto parts store for about one year until November 2, 1990. He was hired as a clerk/cashier at an hourly wage, earning $250 per week. He was subsequently promoted to a parts manager, at a salary status, earning $350 per week. He underwent a three week training period and worked in such capacity for another three weeks. Based on a review of his performance during these periods, the employer concluded that claimant was not suited for the position, citing problems with lateness, his attitude toward workers, and perception of the job scope. The district manager told claimant he would be relieved of his duties as manager and offered him the option to return to his prior position, at the lower salary. Claimant declined, saying it was not in his best interest and that it was just time for him to "get out."

OPINION: The evidence establishes that claimant was relieved of his duties as manager a few weeks after being promoted to the position because the employer was dissatisfied with his performance, which did not meet the employer's expectations. The employer had the prerogative to remove an employee who was found not suitable for the position. Furthermore, the employer did not intend to discharge claimant but offered to return him to his former position. We disagree with the judge's conclusion that claimant was entitled to decline the offer because the promotion was not conditioned upon returning to his former position if his performance as manager was deemed unsatisfactory.

Under these circumstances, we conclude that claimant voluntarily left his employment for non-compelling reasons and without good cause.

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

The decision of the administrative law judge is reversed.

COMMENTS

1. This decision is consistent with similar holdings involving civil service employees who revert to their permanent title from a provisional appointment (AB 300,900; A-750-1901). It is significant in this case that the claimant's inadequacies became apparent only three weeks after he began to function in his new job. Clearly after some period of time claimant's promotion and increased salary become a part of the terms and conditions of employment. Once this occurs, then a proposal by an employer to demote claimant for poor job performance may constitute a violation of these terms and conditions and provide claimant good cause to quit. The period of time necessary to evaluate claimant's performance may be built into the promotion in the form of a probation period. But even if it is not specifically stated, some trial period is inherent in every promotion. How long this is depends on the nature of the job and the practices in the industry.

2. The principles used to resolve cases involving demotion for cause are different than those used in cases involving "bumping" caused by reductions in force and site closings. For these purposes the Matter of Bus (32 NY 2d 955; A-750-1741) would control.

 


 

A 750-2046

INDEX 1665.5

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

May 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Irregular, Part-time or
Temporary Employment

V0LUNTARY QUIT -INCREASED TRANSPORTATION COST

Claimant has good cause to quit a part-time jab paying less than the benefit rate when increased transportation costs, relating to that job, are caused by the loss, under non-disqualifying conditions, of a concurrent full-time job located nearby.

AB 409,186

By initial determination of the local office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective March 31, 1991. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision dated June 6, 1991 the Administrative Law Judge sustained the initial determination.

The claimant appealed the judge' s decision to the Board.

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

FINDINGS OF FACT: Two days after the claimant lost her full-time, 40 hour position as an electronics worker, under non-disqualifying conditions, she resigned her concurrent part-time job. She worked 10 to 14 hours and had net earnings of about $45.00 a week at that job. The claimant's shift at her full-time job ended at 4:30 P.M. She would take public transportation to the part-time job, which started at 5:00 P.M. As there was no public transportation available at 9:30 P.M., when the shift at her part-time job ended, the claimant had to take a cab home. The cab ride costs $8.00 a trip. Since claimant would no longer be going from her full-time job to her part-time job, it would have been necessary for her to leave from her home. As there was no public transportation available from claimant's home to her part-time job, she would have had to take cabs both to and from work. Claimant quit her part-time job because she believed that she would lose money if she continued working there.

OPINION: The credible evidence establishes that the claimant quit her part-time employment because an unreasonable amount of her earnings would have to be dedicated to transportation expenses. We believe That under these circumstances, the claimant was placed in an untenable situation which gave her good cause to leave her part-time job.

Furthermore, we believe that the judge's reliance on Matter of Grandy, (64 AD 2d 796) is misplaced. The claimant in Grandy did not have the unreasonable transportation expense that the claimant herein had.

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

The decision of the Administrative Law Judge is reversed.

COMMENT

This case is a further exception to the Matter of Grandy (64 AD. 2d 796; A-750-1862), which holds that quitting a part time job because the salary is less than the benefit rate is without good cause if there is no change in the terms and conditions of the part-time employment. An exception to this principle was established in AB 355,494 (A-750-1962) which held that such a quit can be with good cause. That case involved child care costs. In the present case the issue is the travel costs which increased. In any event, we should be aware of the possibility of situations outside the part-time employment itself that may provide good cause.

 



A-750-2047

INDEX 1605E-3
1615-11

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

June 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Voluntary Separation or Misconduct
Anticipation of discharge or layoff

Voluntary Quit -Resignation in Lieu of Pursuing a Grievance

Resigning, rather than pursuing a grievance, is not a voluntary leaving of employment when claimant has been suspended without pay pending discharge and the employer, in return, for claimant's resignation, agrees to remove all charges, but if by pursuing such grievance and losing claimant would be unable to work In his/her chosen occupation again.

AB 398,125

The claimant appeals from the decision of the administrative law judge filed January 9, 1990, sustaining the initial determination of the local office disqualifying the claimant from receiving benefits effective November 8, 1989 because he voluntarily left his employment without good cause.

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

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

FINDINGS OF FACT: The claimant worked as a police officer for a municipality for about two years until November 7, 1989. On that date, claimant was charged with violating the employer's rules by having unauthorized people in his patrol car and was suspended without pay, pending discharge. Pursuant to terms of the contract between claimant's union and the employer, claimant could have requested a grievance hearing. Subsequently, a meeting was held, attended by the claimant, his union representatives and representatives of the employer. At this meeting, claimant was informed that, if he pursued his contractual right to a grievance and lost, it was likely that he could never again work as a police officer. As a result, a settlement agreement was entered into whereby claimant was permitted to submit a resignation "for personal reasons." In exchange therefor, the employer agreed to delete all references, to the charges from claimant's record and the claimant agreed that he would take no legal action against the employer. Claimant consented to these terms in order to protect his employment record so that he could seek employment as a police officer in other jurisdictions.

OPINION: The undisputed evidence establishes that the claimant was permitted to submit a resignation in settlement of charges brought against him by the employer in order to preserve his employment record. Prior decisions by the Board and by the Courts have held that the failure to pursue grievance proceedings does not, in and of itself, constitute a voluntary leaving of employment. (Appeal Board 267,540A; 311,041; Matter of Guerin, 88 AD2d 1018, motion for leave to appeal denied, 57 NY2d 604; Matter of Batemark, 147 AD2d 738). Furthermore, the facts in this case are distinguishable from those in Matter of Cahill, 77 AD2d 734, wherein a claimant served with charges seeking his termination sent a letter to the employer indicating that he accepted the dismissal. In the instant case, claimant did not simply accept the employer's decision to discharge him but resigned only after discussing with his union the adverse ramifications if he went ahead with the grievance and lost and after having the employer agree to remove all charges from his record. Accordingly, we conclude that the claimant did not leave his employment voluntarily and that his employment ended under non-disqualifying conditions.

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

The decision of the administrative law judge is reversed.

COMMENTS

  1. In all cases of this nature complete and detailed fact finding is required to determine if the reason for claimant's suspension without pay constitutes misconduct. If it does, a misconduct determination is appropriate even though the charges are not part of claimant's official personnel file. This misconduct determination would not end with claimant's resignation. Claimant must obtain the requisite weeks of employment and earnings to terminate the disqualification. In Matter of Slade (34 NY2d 919; A-750-1776), claimant was suspended without pay for a definite period. At the end of this period claimant was scheduled to return to work but did not do so because of lack of work. The Court found the claimant eligible as of that date. In this case claimant ended his grievance by resigning.

 

  1. Unlike the situation reported in A-750-1963, in this case the claimant in addition to not pursuing a grievance, performed the overt act of submitting a resignation. The Appeal Board decided however, in light of the offer made to the claimant, his decisions was not truly voluntary.

 

  1. This case should be distinguished from situations where claimant is served with the charges and a notice of intent to discharge, but continues to work or receive a salary from the employer pending arbitration. In that circumstance claimant's leaving would be voluntary.

 



A-750-2048

INDEX 910-12

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

August 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Base Period Earnings and Employment

COVERAGE -EMPLOYEES OF RELIGIOUS ORGANIZATIONS

To exclude a claimant's services other than as a caretaker under Section 563(2)(c) it is necessary to review the claimant's functions and duties to determine if the duties were religious in nature.

Matter of Conde, 180 AD 2d 911, decided February 20, 1992

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 6, 1990, which, inter alia, assessed Gates Community Chapel Inc. for unemployment-insurance contributions.

It is not disputed that the campus facility for troubled teenagers which is operated by the employer a Christian Church, serves a religious purpose. Rather, the question is whether claimant's duties were of a "religious nature" so as to exclude him from unemployment insurance coverage under Labor Law Section 563(2)(c). Claimant's duties involved the development and repair of the campus when it was first purchased by the employer and to raise funds for that purpose. On the basis of the record before us, there is substantial evidence to support. the Unemployment Insurance Appeal Board's conclusion that claimant's activities were inherently secular in nature and were therefore covered by the Labor Law (see, Matter of Vecchio [Long Is. Lutheran High School -Hartnett], 176 AD 2d 1100, [Oct. 24, 1991]). The employer's remaining constitutional arguments have been considered and likewise rejected as being without merit (see, Matter of Klein [Hartnett], 78 NY 2d 662, [Dec. 23, 1991]).

Mikoll, J.P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur.

ORDERED that the decision is affirmed, without costs.

COMMENTS

  1. Section 563(2)(c) excludes from coverage "a person employed at a place of religious worship as a caretaker or for performance of duties of a religious nature, or both, unless voluntary election has been made."
  2. In Matter of Conde, the Court upheld the Appeal Board's decision that claimant's duties involving the development and repair of a campus and raising funds for that purpose were inherently secular in nature, even though the campus facility operated by a Christian Church serves a religious purpose
  3. In Matter of Vecchio, the Court upheld a decision by the Appeal Board that a history and social studies teacher in a school operated by the Lutheran Church was covered. The Court found that claimant did not teach any religious subjects, nor provide any religious instructions. Although she did attend weekly religious services, this was merely as a monitor. On the other hand in Matter of Klein, the Court upheld a decision by the Appeal Board that the services of an English teacher in a Jewish school were religious in nature, and therefore, excluded. The Board found that the administrators screened the books and observed the work of the teachers to insure that the students were taught along traditional Jewish lines.

In a subsequent case, Matter of Faith Bible Church, 179 AD 2d 308, decided March 18, 1992, the Court made it clear that the commissioner is not required to accept the employer's characterizations of claimant's services as being "of a religious nature." That case involved church secretaries.

4. The issue of whether a claimant's employment in a religious school is covered is to be resolved by the Liability and Determination Section (see U.I. Manual 3401, especially footnote 1). To facilitate this process, the Request for Coverage Determination should contain information as to the job duties, the religious training required, and in what respect the junctions and duties might be considered religious in nature. In addition, with regard to teachers, information should be included as to the courses the claimant taught, any screening or supervision by administrators of books or services to insure compliance with; religious tenets, requirements and responsibilities in connection with religious services, and requirement to provide religious instruction.

 



A-750-2049

INDEX 1605 D-9
1605 F-9

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

August 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Effective Date and Termination.
Voluntary Separation or Refusal

Voluntary Resignations and Scheduled Temporary Lay-offs

When a claimant voluntarily resigns without good cause prior to a scheduled temporary lay-off, the effective date of disqualification is the day following the last day of claimant's employment even though this date coincides with the date of the scheduled temporary lay-off.

AB 411,606

By initial determination of the Out-of-State Resident Office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective May 31, 1991, and by further determination issued on July 30, 1991, was held ineligible to receive benefits under Section 590.10 based on claimant's school employment. The claimant requested a hearing.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated September 3, 1991, the Administrative Law Judge overruled the initial determinations.

The employer appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: Claimant was an instructor at business college for three years until May 30, 1951, when the semester ended. The employer hired the claimant on a semester by semester basis. The number of hours claimant was to teach were usually determined in late June or early July. On May 20, 1991, the claimant submitted a letter of resignation to the employer because she was relocating to Florida with her husband. Neither claimant nor her husband had any definite offer of other employment. Claimant continued to teach through .the last day of school and moved to Florida shortly thereafter. The employer fully expected to offer an assignment to claimant in the 1991-92 school year but did not do so because of claimant's relocation.

OPINION: The credible evidence establishes that the claimant submitted a letter of resignation before the semester ended on June 1. Since the claimant was aware that the employer normally informed teachers of fall semester assignments at the end of June, the employer was prevented from offering an assignment to the claimant because of her resignation and relocation. We also note that neither claimant nor her husband had job offers in Florida at the time of her relocation. Accordingly, we conclude that the claimant left her employment for reasons which are personal and non-compelling and without good cause. In view of the foregoing, the further initial determination is academic and need not be decided.

DECISION: The initial determination of the Out-of-State Resident Office of voluntary quit is sustained.

The decision of the Administrative Law Judge, insofar as it overruled the initial determination voluntary quit, is reversed.

COMMENTS

1. Claimant tendered a voluntary resignation prior to a temporary layoff, effective the last day of scheduled work. The Board affirmed a disqualification effective the day following the last day of work.

2. This case is distinguished from the case discussed in A-750-1917, in which the Board ruled that a voluntary termination of employment without good cause which occurs during a period of temporary layoff results in a disqualification from benefits effective the date scheduled for return to work.

3. In that case, the Board expressly overruled AB 142,178 which held that voluntary leaving of employment without good cause during a period of temporary layoff results in a disqualification from benefits effective the date the claim for unemployment benefits was filed during the period of temporary lay-off.

4. Comment 2 in A-750-1917 should be marked obsolete and no longer followed.

 



A-750-2050

INDEX 1010-9

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

November 1992

INTERPRETATION SERVICE-BENEFIT CLAIMS
Hearings and Appeals Timeliness

TIMELINESS -TELEPHONE REQUEST

Claimant's attempt to request a hearing by telephone within thirty days of the mailing of the initial determination does not constitute a timely hearing request if claimant is advised of the necessity to make such request in person or by mail and claimant has sufficient time to comply but does not act promptly to make such request within the statutory period.

AB 409,185

By initial determination of the Out-of-State Resident Office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective December 8, 1990 and claimant's right to future benefits was reduced by 4 effective days because claimant wilfully made a false statement. The claimant requested a hearing. The Commissioner of Labor imposed a preliminary objection that the hearing request was not made within the statutory period.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision dated May 28, 1991 the Administrative Law Judge overruled the initial determinations and the Commissioner of Labor's timeliness objection.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: Claimant filed an original claim for benefits effective December 8, 1990. The initial determinations were mailed to Claimant on February 7, 1991 and received by him shortly thereafter. On the back of each determination there is a notice to the parties that, hearing requests must be made in writing, by mail or in person at the local office, not more than 30 days from the date of the determination. On March 4, 1991, claimant called the local office and requested a hearing. He was advised that his request must be made in person or in writing. He did not make a written request for a hearing until ten days later, on March 14, 1991.

OPINION: The credible evidence establishes that the initial determinations were mailed to claimant on February 7, 1991 and received by him shortly thereafter. Claimant telephoned his local office on March 4, about a hearing, and was advised to make a request by mail or in person at the local office. He did not make a request in writing until March 14, 1991, five days after the statutory period had passed. The requirement that a hearing request be made in writing or in person at the local office, is more than a mere technicality (See: Appeal Board Rules and Regulations 12 NYCRR 461.1). Furthermore, claimant was duly advised of his obligation to make a request in writing, and had sufficient time to comply, but failed to act promptly. We, therefore, conclude that the claimant's failure to make a timely request for a hearing cannot be excused. Accordingly, the administrative law judge lacked jurisdiction to rule on the merits of the issues in this case.

DECISION: The Commissioner of Labor's timeliness objection is sustained.

The initial determinations remain in effect.

The decision of the Administrative Law Judge is reversed

 



A-750-2051

Index 1715-6

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

February 1993

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
School or Training Course,
Quit To Attend

VOLUNTARY QUIT TO CONTINUE TRAINING

Employment which coincides with attendance at training is not "stopgap"; therefore, quitting such employment because a change in the training schedule conflicts with the hours of work is without good cause.

AB 415,284A

The Board on its own motion, pursuant to Section 534 of the Law, hereby reopens for reconsideration its decision filed in the Department of Labor on January 14, 1992 (Appeal Board No. 407,499) insofar as it affirmed the decision of the Administrative Law Judge filed April 3, 1991, insofar as it sustained the initial determinations of the local office disqualifying the claimant from receiving benefits effective January 21, 1990, because he voluntarily left his employment without good cause, charging him with a recoverable overpayment of $598 in benefits, and denying his application for vocational training pursuant to Section 599 of the Law.

A further hearing was held before the Board at which all parties were accorded a full opportunity to be heard, at which testimony was taken, and at which there were appearances on behalf of the claimant, the employer and the Commissioner of Labor.

Upon due consideration of the entire record herein, and Due deliberation having been had,

Now, therefore, based on the entire record and testimony in this case, and on all of the proceedings heretofore had herein, the Board makes the following

FINDINGS OF FACT: The claimant was employed as a driver by an automobile parts retailer for about four months until January 20, 1990. He was hired to work from 8 a.m. until 1 p.m. on Tuesdays, Thursdays and Saturdays. He decided to leave his job because he wanted to continue his course in air conditioning and heating repair at a college. His class hours for the Spring, 1990 semester were changed so that they conflicted with his Tuesday work hours. He had made no agreement with the employer that would have enabled him to vary his hours based upon changes in his class schedule. The employer had no work for the claimant that conformed to his class schedule. He filed a claim for benefits effective January 22, 1990. He received $598 in benefits before his claim was redetermined on May 30, 1990.

The claimant had begun the course in air conditioning and heating repair in August, 1988, while claiming benefits under a prior claim effective November, 1988. He had received approval under Section 599 of the Law for such course in connection with the November, 1988 claim. That benefit year expired in November, 1989. The course was not to be completed until May, 1990.

OPINION: The credible evidence now before the Board establishes that the claimant left his part-time employment in order to continue his studies. There was a conflict between his hours of employment and the class hours, and the claimant chose to pursue his studies so that he could increase his prospects of more gainful employment in the future.

It has been repeatedly held that a resignation from employment in order to continue one's education is without good cause under the Unemployment Insurance Law (See Matter of Manning, 59 AD 2d 818, rev'g Appeal Board No. 237,398. Also, see Appeal Board No. 386,586). In the case before us the course of study happens to be one on which the local office had conferred approval in connection with a previous claim for benefits. In Appeal Board No. 165,640, the Board held that the language of Section 599 indicates that a claimant must be eligible to receive benefits and does not become ineligible by reason of attendance at a training course approved by the Commissioner. It follows that a disqualification for voluntary leaving without good cause of the last employment prior to the filing (if a given claim for benefits negates any possibility of approval of a training course until and unless that disqualification is broken by the claimant according to the provisions of the Law.

The fact that the claimant had secured prior approval of the same course of study does not by itself give him good cause to leave any employment he may undertaken during the course. This case is distinguishable from Appeal Board No. 173,143F in which a claimant, after applying to a training facility for admission to vocational training, obtained employment intending to work until the training started. In that case the Board held that good cause existed for the claimant to leave the stopgap employment. In the case at hand the employment can not be considered as stopgap, because the claimant was so employed prior to filing the latest claim. His eligibility was a condition precedent to the approval of training. The application for training which had been approved under the prior claim constitutes approval under the prior claim, only, and can not extend in to the period of the new claim. We conclude that the claimant left his employment to continue his education, a personal and non-compelling reason within the law, and without good cause.

Since he is not eligible to receive benefits, he was overpaid $598 in benefits which he received prior to the redetermination of his claim. His application for vocational training must also be disapproved.

DECISION: The decision of the Board filed January 14, 1992 (Appeal Board No. 407,499), insofar as it has been reopened, is hereby rescinded.

The initial determinations of voluntary leaving of employment without good cause, recoverable overpayment and denial of application for vocational training are sustained.

The decision of the Administrative Law Judge is affirmed.

COMMENTS

1. In general, quitting a job to attend school is without good cause (Matter of Manning, 59 AD2d 818; cited. A-750-1842). The major exception to this holding is a quit of "stopgap" employment (AB 173,143 F; A-750-1750). These two releases should be reviewed in conjunction with this case.

2. Complex issues of this nature may be referred through channels to Adjudication Services Office, Interpretation and Central Services Section, Telephone (212)352-6850.

 



A-750-2052

INDEX 2030-B4

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

June 1993

INTERPRETATION SERVICE-BENEFIT CLAIMS
SECTION 599
Employment opportunities
Future Occupation (after training)

SECTION 599 -CAREER GOAL

In order to be approvable under section 599, claimant's course of study must lead to the qualifications or skills for a specific occupation. Attendance at college without a specific occupation in mind does not satisfy this requirement.

AB 416,084

By initial determination of the local office, the claimant was denied approval for career and related training under section 599. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated February 21, 1992 the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant filed his claim for benefits effective December 9, 1991. While serving in the military he accumulated credits for courses which he hopes to combine with credits he will accumulate at a two-year college in New York in order to obtain a Bachelor's degree. He requested approval for his studies in the Spring, 1992 semester at the two-year college at which he is a full-time but non-matriculated student. While awaiting the decision as to which of his credits would be accepted toward a degree, he had not yet made a decision as to his major course of study.

OPINION: Following the 1991 amendments to section 599 of the Labor Law, the Commissioner of Labor promulgated new regulations interpreting the amended legislation. Among these are Rule 482.2(b). This regulation defines "career or related training", the term which was substituted by the Legislature in 1991 for "vocational and related training", as "any training program clearly leading to the qualifications or skills for a specific occupation..." In order to obtain approval for training, a claimant's training program must satisfy the new regulations. In the case at hand, the claimant was not even certain as to his degree plans because he was not a matriculated student and did not know how many credits would be counted towards his four-year degree. He therefore was attending college for the Spring, 1992 semester without a specific occupation in mind. Under the amended law and the new regulations, his training was properly disapproved.

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

The decision of the Administrative Law Judge is reversed.

COMMENT

For a more detailed discussion of the regulations see Field Memorandum 8-91, Section 599 Regulations.

 



A-750-2053

INDEX 2030-B5

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

June 1993

INTERPRETATION SERVICE-BENEFIT CLAIMS
SECTION 599
Employment opportunities
Future Occupation (after training)

SECTION 599 -COMPLETION OF TRAINING WITHIN TWO YEARS

To determine whether a claimant can complete a program of training within two years, the duration of time required for claimant to acquire the skills, certificate, or degrees necessary to achieve claimant's ultimate occupational goal must be considered.

AB 417,515

By initial determinations of the local office, the claimant was held ineligible to receive benefits because claimant was not available for employment effective January 13, 1992; and denied approval for training under section 599 of the New York Unemployment Insurance Law. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated April 7, 1992 the Administrative Law Judge overruled the initial determination of denial of approval of vocational training and made no ruling on the issue of unavailability.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant, who prior to the filing of a claim of benefits had worked as a cashier, enrolled in a two-year college in January 1992 to obtain an Associate's degree in Individual Studies. The claimant attends classes five days per week. As part of one course entitled "community service Seminar", the claimant does volunteer work for a biogenetics research company. After receiving her Associate's degree, which, she expects by January 1994, the claimant plans to continue her studies in the evening with the goal of a Bachelor's degree in Biology, while working full time during the day at the company at which she does volunteer work. Her ultimate career goal is to become an oceanographer, which requires a graduate degree. The claimant is unwilling to accept full-time employment while she is pursuing her education.

OPINION: The credible evidence establishes that the claimant was pursuing training which leads to a degree in Individual Studies, however her ultimate goal is a graduate degree and a career in oceanography. We disagree with the conclusion of the Administrative Law Judge that the claimant's training should be approved. Her own testimony indicates that she is not interested in a career as a medical laboratory technician, and she did not pursue that specific course of study which is available at the same college.

Even though the claimant suggests that her current course work, in addition to her volunteer work, will enable her to work as a laboratory technician at the biogenetics research company for which she now volunteers, she has not shown that the completion of the two-year degree will clearly lead to qualifications or skills for her specific career occupation. All that the two-year degree will do for her is enable her to continue toward a graduate degree. That is her goal. The regulations issued by the Commissioner of Labor, which were promulgated following the 1991 amendments to Section 599, require such a showing {See 12 NYCRR 482.2(b)}. Based on the foregoing, we conclude that the claimant's request for approval of training under Section 599 of the Law was properly denied.

The claimant is no longer willing to work full time due to her full time school attendance. Therefore, the claimant is ineligible for benefits due to unavailability for employment.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

1. For a more detailed discussion of the regulations see Field Memorandum 8-91 Section 599 Regulations.

2. Under section 599.2(c), a training program must not require more than twenty-four months to complete. This is measured by the amount of time remaining in the course. As in the instant case there are some programs of training that may extend beyond one educational institution. Careful fact finding is required to identify claimant's occupational goal. It is that goal which must be achieved within twenty-four months. The fact that claimant may complete the requirement for a certificate or degree at one of the institutions providing the training within the time limit is not controlling.

 



A-750-2054

INDEX 2060-1

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

June 1993

INTERPRETATION SERVICE-BENEFIT CLAIMS SECTION
SECTION 599
Additional Benefits

ADDITIONAL BENEFITS (599.2)

Claimant's eligibility for additional benefits pursuant to section 599.2 is measured by the number of effective days of regular benefits claimant has remaining at the time she applies for, is accepted in, or begins approvable training. Regular benefits mean benefits payable under state law, excluding extended benefits, additional benefits or federally legislated emergency benefits.

AB 421,351

By initial determination of the local office, the claimant was denied additional benefits for attending an approved course of training pursuant to section 599.2 of the Labor Law. The claimant requested a hearing.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision dated August 18, 19!12, the administrative law judge overruled the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor.

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

FINDINGS OF FACT: The claimant filed an original claim for benefits and was held eligible without disqualifying conditions effective May 20, 1991. She received 26 weeks of unemployment insurance benefits, the last payment of such benefits having been made to her for the statutory week ending November 24, 1991. The claimant then applied for and received Emergency Unemployment Compensation (hereinafter referred to as "EUC") benefits, the last payment of such benefits having been made to her for the statutory week ending July 12, 1992.

On or about March 8, 1992, the claimant applied for and was accepted in a paralegal training program which began March 26, 1992, and was scheduled to end November 2, 1992. The training was approved under section 599.1 of the Labor Law, and the claimant attended the training while she received the remaining weeks of EUC benefits. The claimant seeks additional benefits pursuant to section 599.2 of the Labor Law for the weeks beginning July 13, 1992, the period beyond the Exhaustion of EUC benefits.

OPINION: Section 599.2(a) of the Labor Law, provides in pertinent part that "... a claimant attending an approved training course or program under this section may receive additional benefits of up to 104 effective days following exhaustion of regular and if in effect, any other extended benefits ...The duration of such additional benefits shall in no case exceed twice the number of effective days of regular benefits to which the claimant is entitled at the time the claimant is accepted in, or demonstrates application for, appropriate training." (Emphasis added.) Under this section of the law, a claimant may receive "additional benefits" while pursuing approved training only if the claimant is entitled to "regular benefits" at the time of acceptance in, or demonstration of application for, the approved training.

It is undisputed that the claimant applied for and was accepted in the training program on or about March 8, 1992, and that she was receiving EUC benefits at that time. Initially, we note our disagreement with the conclusion of the judge that claimant was entitled to additional benefits because "she was receiving extended benefits at the time she started the training." The benefits which claimant was receiving were not "extended benefits", as provided for in section 601 of the Labor Law, enacted pursuant to the Federal-State Extended Unemployment Compensation Act of 1970. (Title II of Public Law 91-373, 84 Stat. 695, 708, approved August 10, 1970, as amended). Such benefits were not in effect during the periods in issue herein. The question remains, however, whether the EUC benefits that claimant received constituted "regular benefits" within the meaning of Section 599.2 of the Labor Law.

The only definition of "regular benefits" found in the Labor Law is contained in Section 601.1(f), which defines "regular benefits" as "benefits payable to a claimant under this article or any other State unemployment insurance law other than extended benefits." This definition, however, is expressly limited as being for the purposes of Section 601, only, and relates only to "extended benefits" , but does not define "regular benefits" in the context of the federally-legislated EUC benefits which the claimant received. We must therefore look at other legislative provisions.

Section 101(b) of the Emergency Unemployment Compensation Act of 1991 provides, in pertinent part, that:

the State agency of the State will make payments of emergency unemployment compensation --

(1) to individuals who --

(A) have exhausted all rights to regular compensation under the State law,

{and}

(B) have no rights to compensation including both regular compensation and extended compensation...(and are not paid or entitled to be paid any additional compensation under any State or Federal law), …

(Title I of Public Law 102-164, 105 Stat. 1049, approved November 15, 1991, as amended). (Emphasis added). (Hereinafter referred to as the "Emergency Act").

Section 101(c) of the Emergency Act defines:

"Exhaustion of Benefits" --For purposes of (b)(1)(A), an individual shall be deemed to have exhausted such individual' s rights to regular compensation under a State law when --

  1. no payments of regular compensation can be made under such law because such individual has received all regular compensation available to such individual based on employment or wages during such individual's base period, or (2) such individual's rights to such compensation have been terminated by reason of expiration of the benefit year with respect to which such rights existed. (Emphasis added).

Section 106(a) (1) of the Emergency Act further provides that "the terms 'compensation', 'regular compensation', 'extended compensation', {and} 'additional compensation', ... have the respective meanings given such terms under Section 205 of the Federal-State extended Unemployment Compensation Act of 1970." (Title II of Public Law 91-373, 84 Stat. 695, 708, approved August 10, 1970, as amended). (Emphasis added). (Hereinafter referred to as the "Extended Act") .Pursuant to the regulations issued to implement the Extended Act, as amended, the following terms are defined:

"Compensation and Unemployment compensation means cash benefits to individuals with respect to their unemployment, and includes regular compensation {and} additional compensation ..." {Code of Federal Regulations, Part 20, Section 615.2(d)}.

"Regular compensation means compensation payable to an individual under a State law, ...but does not include extended compensation or additional compensation." {Code of Federal Regulations, Part 20, section 615.2(f)}.

"Additional compensation means compensation totally financed by a State and payable under a State law by reason of conditions of high unemployment or by reason of other special factors ..." {Code of Federal Regulations, Part 20, section 615.2(f)}.

"Extended compensation means the extended unemployment compensation payable to an individual for weeks of unemployment which begin in an Extended Benefit Period, under those provisions of a State law which satisfy the requirements of the Act and this Part with respect to the payment of extended unemployment compensation,... Extended compensation is referred to in this Part as Extended Benefits." {Code of Federal Regulations, Part 20, section 615.2 (9) } .

Labor Law, section 601.2 provides for an almost identical condition with regard to a claimant's eligibility for extended benefits, namely, the prerequisite of exhaustion of the claimant's rights to regular benefits. Section 590.4 of the Law further provides that the duration of benefits shall not be paid for more than 104 effective days in any benefit year, except as provided in sections 601 and 599.2 of this chapter.

The claimant in this case was receiving benefits under the federally-legislated Emergency Act (also referred to herein as EUC benefits), and not under any State law, as of November 25, 1991. Since the definition under the Emergency Act of 1991 conditions eligibility for benefits upon exhaustion of regular compensation, and adopts from the Extended Act the definition of regular compensation as "compensation payable to an individual under a State Law," it follows that these EUC benefits are not "regular benefits" within the meaning of section 599.2. By the time claimant applied for and was accepted in an appropriate course of training, she, therefore, had no entitlement to "regular benefits." We therefore conclude that she is ineligible for additional benefits under section 599.2 of the Labor Law.

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

The decision of the administrative law judge is reversed.

COMMENT

Regular benefits include state Unemployment Insurance (UI), Combined Wage Claims (CWC), Unemployment compensation: for Federal Employees (UCFE) and Unemployment compensation for Ex-servicemen (UCX).

 



A-750-2055

INDEX 2060-2

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

June 1993

INTERPRETATION SERVICE-BENEFIT CLAIMS
Section 599
Additional Benefits

TRAINING COURSES -MINIMUM REQIREMENTS

Effective October 1, 1991, approvable training must consist of attendance at training for at least twelve hours per week.

AB 413,857

By initial determination of the local office, the claimant was denied approval for vocational training' under section 599 of the New York Unemployment Insurance Law because her training consisted of fewer than 12 hours per week. The claimant requested a hearing.

The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated December 11, 1991 the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge' s decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant filed an original claim for unemployment insurance benefits effective April 22, 1991, and was ruled eligible. Subsequently, in September 1991, she was accepted into a nurse's aide training program. The program began on October 1, 1991. It consists of five hours of training per week. The claimant did not go to the Local office to request approval of her training under the provisions of section 599 until October 1, 1991.

OPINION: The credible evidence establishes that the claimant's training program consists of only five hours per week. Regulations were issued by the Commissioner of Labor effective October 1, 1991, requiring attendance at training for at least 12 hours each week (See 12 NYCRR 482.2{b}). These regulations apply to applications for training course approvals under section 599 of the Law made on or after October 1, 1991. Since the claimant went to the local office to request approval of her training on October 1, 1991, the new regulations apply to her. Accordingly, since the claimant's training consists of only five hours per week, her request for approval under section 599 of the Law was properly denied.

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

The decision of the Administrative Law Judge is reversed.

COMMENT

This requirement was established by the regulations of the Commissioner of Labor issued effective October 1, 1991. For detailed discussion of these regulations refer to Field Memorandum 8-91, section 599 Regulations.

 



A-750-2056

INDEX 810-7

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

August 1993

INTERPRETATION SERVICE BENEFIT CLAIMS
REGISTRATION, REPORTING AND CERTIFICATION
Evidence of Registration, Reporting, and Certification

PEER Appointment Notice -Proof of Mailing

A claimant's failure to report for a PEER interview scheduled by mail is not excused, when the notice to claimant to report for the interview is properly addressed and not returned by the Post Office, because the Department's normal office procedures in processing, addressing and mailing computer generated mass mailings of PEER appointment notices is presumptive evidence that a particular claimant received mail delivery of the properly sent notice in due course. The claimant's unsubstantiated contention that the mailed notice was not delivered is insufficient to rebut the presumption.

AB 421,884

By initial determination of the local office, the claimant was held ineligible to receive benefits effective July 8, 1992 because she failed to comply with reporting requirements. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision dated September 3, 1992 the Administrative Law Judge overruled the initial determination.

The Commissioner of labor appealed the judge's decision to the Board. A further hearing was held before the Board, at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance on behalf of the Commissioner of Labor. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant filed an original claim for benefits effective February 3, 1992. She received all of her benefit checks through the date of the Administrative Law Judge hearing. The benefit checks were mailed to the address of record with the Department of Labor.

Prior to Wednesday night, each local unemployment insurance office enters into the Department computer the number of interviews to be scheduled at that office for the weekly period (Monday through Friday) that is two and one-half weeks away. Every Wednesday night, the Data Processing section of the Department of labor runs an automated selection computer program which picks claimants for Periodic Eligibility and Employability Review (PEER) interviews at their respective local offices. The number of claimants selected and the dates and times assigned are based on the schedule which had been entered into the computer by the local office. The program assigns a date and time to each claimant who is selected. The program then produces on-line appointment listings which identify the claimants selected. The list is arranged by local office and by claimant name, Social Security number, and the date and time of the interview for each claimant scheduled. These listings, are available on-line to the local offices for viewing or printing on the following Friday. The program also posts the on-line PEER record of each claimant scheduled with the date of the PEER interview.

The program then prints a PEER Appointment Notice (form LO 343.3X) for each claimant scheduled. The program completes a printed form by entering the variable data, including the local office address, information about the PEER interview (including the location, date and time), and information about the claimant (including name, address, Social security number and DOT code, if any). The claimant's address on the PEER Appointment Notice comes from the Benefit Control Record (BCR) which is the same source for the claimant's address as is used to mail benefit checks. Finally, the program produces a report which gives the total number of letters generated. Both the completed PEER Appointment Notices and the report on the, number of letters are delivered to the Department's Mail and Service on Thursday morning.

The Mail and Service Unit runs the PEER Appointment Notices through a mechanical device that inserts each Notice, along with an eligibility questionnaire, into a window envelope. The device then seals the envelope. The claimant's name and address show in the addressee window and the local office's address shows in the return window. This unit keeps a log to assure that the number of PEER Appointment Notice s received from the Data Processing Unit equals the number of PEER Appointment Notices inserted into envelopes.

Following the performance of its assigned task relative to these Notices, the Mail and Service unit delivers them to the mail room where they are picked up that day by the U.S. Postal Service. PEER Appointment Notices are sent first class mail.

The Mail and Service Unit routinely notifies the Administrative Analysis Unit of any mutilated PEER Appointment Notices that cannot be mailed. In the event that a PEER Appointment Notice is mutilated, the Administrative analysis Unit will pick it up from Mail and Service, type a new replacement Notice and put the completed replacement Notice in the mail out basket for delivery to the mail room.

On the night of June 18, 1992, the program selected claimant to be scheduled for a PEER appointment during the week beginning July 7, 1992. On June 18, 1992, the number of PEER Appointment Notices processed by the Data Processing section was the same as the number of PEER Appointment Notices processed by the Mail and service unit. Included in that number was a Notice to the claimant in this case. The Notice was mailed to the claimant at the same address at which she received all of her benefit checks. The claimant's name and Social Security number appear on the on-line appointment listing for July 8, 1992. The letter which was sent to the claimant was not returned to the local office.

The claimant was scheduled for an interview at her local office on July 8, 1992, at 10:30 a.m. She did not appear for the interview. She did not report to the local office until July 27, 1992.

OPINION: The first issue which we must address is the question of whether the claimant was properly notified to appear for a PEER interview. There is no direct testimony to establish the mailing of a specific PEER Appointment Notice to the claimant. In cases such as this one, it is then incumbent upon the Commissioner of Labor to show through competent evidence the normal office procedures with regard to the preparation and mailing of such notices.

In this case, the witness for the Department gave competent testimony regarding the way in which the computer program runs to select and notify individual claimants to report for a PEER interview. The program completes the form to give all relevant information to identify the addressee and to advise the addressee of when and where to report for the PEER interview. There is a method to verify that the number of notices prepared corresponds to the number mailed and, for the notices prepared on June 18, 1992, the numbers match. There is also an established procedure which is followed whenever a notice is mutilated while being inserted into the envelope. The address used was the one to which the claimant's benefit checks were sent. There is documentary proof that the claimant's name and Social Security number appear on the on-line appointment list for July 8, 1992. Finally, there is evidence that the notice was not returned by the Postal Service.

The evidence necessary to activate the presumption that an item was mailed is proof of an office practice and procedure in the regular course of the sender's business, which shows that the notices have been duly addressed and mailed (see Nassau Insurance Company v. Murray, 46 NY 2d 828). The evidence need not rise to the quantum required in a judicial action or proceeding so long as it constitutes reasonable evidence of mailing (see Matter of Gonzalez, 47 NY 2d 922, rev'g the decision of the Appellate Division, Third Department, filed February 9, 1978, unreported, aff'g Appeal Board 229,143). In the case at hand, the Commissioner of Labor has satisfied these requirements. All of the evidence presented on behalf of the Commissioner of Labor, pertaining to the procedures for printing and mailing of appointment letters, are exceptions to the general rule against admission of hearsay evidence because they are documents produced in the ordinary course of the business of the Department of Labor. The testimony as to procedure is competent evidence of the usual course of conduct of the Department in arranging the PEER appointments. As such, a decision of this Board may be based upon this evidence. Accordingly, we conclude that a PEER Appointment Notice for July 8, 1992 was properly mailed to the claimant at her correct address (see Matter of Askew, 50 AD 2d 647, aff'g Appeal Board 195,233).

The Administrative Law Judge found in his decision that the PEER Appointment Notice in question had been sent, but not delivered. Because we have also found that the Notice was mailed, it is likewise necessary for us to determine whether the notice was delivered. The Courts have traditionally recognized a presumption of delivery. Once a letter is found to have been properly addressed and mailed, there is a presumption that the letter has been delivered in due course (see News syndicate v. Gatti Paper Stock Corp., 256 N.Y. 211). If the letter was sent, then the presumption of delivery applies and can only be rebutted by substantial evidence (see People v. Langan, 303 N.Y. 474).

In this case, the claimant stated that she did not receive the appointment notice. Although the claimant requested, in writing, an adjournment of the further hearing held before the Board, we found no valid reason for the adjournment. The claimant merely stated in her letter to the Board that she could not comprehend the subject of the further hearing and wanted more detailed information sent to her. The Notice of Hearing states that the purpose of the hearing was: "To receive additional testimony and evidence on the issues in this case, including the practices and procedures of the Department of Labor regarding the scheduling of Periodic Employment and Eligibility Review reporting requirements and regarding how claimants are advised of those PEER appointments". We were of the opinion that this stated purpose of hearing is sufficient notice for the claimant to be able to prepare. Therefore, her adjournment request was denied, and she was notified of the denial prior to the commencement of the hearing. It was then incumbent upon the claimant to appear at the hearing to explain further why the stated purpose of the hearing was insufficient to enable her to prepare for the hearing. Having been specifically advised that the request for an adjournment had been denied, claimant could not simply rely on the written application for an adjournment. Although notified of the time and place of the further hearing held before the Board, as well as an explanation of the purpose of the hearing, the claimant did not appear at that hearing to renew her request in further detail or with greater specificity. We, therefore, conclude that the claimant was afforded the opportunity to rebut the evidence presented by the Department of Labor and that she did not avail herself of the opportunity.

The Claimant has denied receipt of the PEER Appointment Notice. We note that she testified at the hearing before the Administrative Law Judge that she had received all of her benefit checks up to the date of the hearing before the Administrative Law Judge. Testimony as to the procedure utilized by the Department of Labor included details on the PEER reporting system's utilization of the Benefit Control Record as the source for the claimants' addresses on the appointment letters. Those same records are used for the issuance of benefit checks. Accordingly, we find that denial of receipt of the PEER Appointment Notice to be insufficient to overcome the presumption of regularity regarding the delivery of mail properly sent (see Matter of Askew, supra) Therefore, we conclude that the PEER Appointment Notice was received by the claimant.

The evidence establishes that the claimant was properly notified to report for a PEER interview. She failed to do so for her own reasons, which are not known to this Board. Accordingly, the claimant's failure to report for the interview cannot be excused. We, therefore, conclude that she is, ineligible to receive benefits for the period in issue.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

1) The Appeal Board addressed the question of whether the claimant was properly notified to appear for a PEER interview. In the absence of direct testimony to establish the mailing of a specific PEER Appointment Notice, the Board held that it is incumbent upon the Commissioner of Labor to show through competent evidence the normal office procedures with regard to the preparation and mailing of such notices. This evidence included the following:

a) Copy of the PEER Appointment Notice (LO 343.3X).

b) The on-line appointment listing for the appointment date (US 2401 or US 2402) on which the claimant's name and appointment time is listed.

c) Claimant's PEER record showing the PEER appointment date and the claimant's address.

d) A statement from the Community Service Center/ Local Office that the letter was not returned as undeliverable.

e) An affidavit from the Administrative Analysis Section as to the printing and mailing of the PEER Appointment Notices.

f) Reports from the Administrative Analysis Section and the Mail and Service Unit in Albany regarding the printing and mailing of such notices.

The first four items are available to Community Service Center personnel and should be examined in making a determination. They must be provided at the time a case is processed for hearing. A copy of the affidavit from administrative analysis should be provided to claimants upon request. Any irregularities in mailing will be reported to the Community Services Division offices by the Administrative Analysis section.

2) Once a letter is found to have been properly addressed and mailed, there is a presumption that the letter has been delivered in due course. If the letter was sent, then the presumption of delivery applies and can only be rebutted by substantial evidence.

3) Presumptive evidence is, by definition, evidence which can be refuted. The Appeal Board held mere denial of receipt of the PEER appointment notice is insufficient to overcome the presumption of regularity of the delivery of mail properly sent. If the claimant presents substantial evidence of difficulty with receipt of mail (i.e. , prior complaints about non-receipt of benefit checks), this presumption will not prevail. Therefore, it is important that if a claimant alleges problems with receiving mail, he/she be asked for specific details of such problems including whether a report was ever made to the community Service Center or Post Office. Such complaints are made via a U.S. Postal Service Consumer Service Card (P.S. Form 4314C). The Postal Service Consumer receives a copy of this complaint. Claimant should be requested to produce such as evidence of a complaint made prior to the alleged failure to receive the PEER Appointment Notice. In general, in the absence of such evidence the presumption has not been rebutted and the failure to report for the PEER interview usually should not be excused.

4) This case replaces the rule listed in the Interpretation Service Index at 810-7. This A-750 replaces A-750-2028 which should be marked obsolete.

 



A-750-2057

INDEX 1635A-5

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

SEPTEMBER 1993

INTERPRETATION SERVICE BENEFIT CLAIMS
VOLUNTARY SEPARATION
Domestic Reasons
Children, Care of

CHILDCARE ALTERNATIVES TO RESIGNATION

Voluntary leaving of employment to stay home and provide childcare is without good cause when claimant fails to pursue available alternatives offered by the employer (i.e., a change in hours or a leave of absence).

AB 414,684

By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions effective June 15, 1991. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a voluntary leaving of employment without good cause.

The Administrative Law Judge held hearings at which testimony was taken. There were appearances on behalf of the employer. By decision dated, January 21, 1992 (ALJ Case #091-38889), the Administrative Law Judge sustained the initial determination.

The Board, on its own motion pursuant to section 620.3 of the Labor Law, has determined to reopen and reconsider the decision of the Administrative Law Judge.

A further telephone hearing was held before the Board, at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the employer.

Now, based on the entire record and on all of the proceedings heretofore had herein, the Board makes the following

FINDINGS OF FACT: The claimant, a front desk clerk, worked for a hotel for approximately three years until she resigned her employment on June 14, 1991. The claimant worked the night shift, from 11 p.m. until 7:30 a.m. On or about June 12, 1991, the claimant told the assistant manager that she was thinking about leaving her job because she had child care problems for her infant daughter. The claimant was offered the option to request a leave of absence or a change of hours in lieu of resigning her job. Later that week she resigned her employment, saying that she wanted to stay home with her daughter.

OPINION: The credible evidence now before the Board establishes that the claimant resigned her employment on June 14, 1991 because she wanted to stay home and care for her daughter. The claimant was offered the opportunity to request leave time or even a change in her schedule until her child care problems were resolved, which she declined, for reasons test known to herself. Therefore, claimant did not take reasonable or prudent steps to protect her employment. Accordingly, the claimant left her employment for personal, non-compelling reasons and without good cause and is therefore disqualified from receiving Unemployment Insurance benefits.

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

The employer's objection that the claimant voluntarily left her employment without good cause is sustained. The claimant is disqualified from receiving benefits effective June 15, 1991, until she has worked in employment on not less than three days in each of five weeks and earned remuneration at least five times her benefit rate. Self employment and earnings therefrom will not count.

The decision of the Administrative Law Judge is reversed.

COMMENT

Whenever a claimant withdraws from the labor market for any reason, including childcare obligations, an issue of availability exists and must be resolved.

 



A-750-2058

INDEX 1152-7
1110-18
1655-10

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

OCTOBER 1993

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Drugs
Absence and Lateness
VOLUNTARY SEPARATION
Health

ABSENT DUE TO DRUG REHABILITATION

1. Claimant was discharged when he notified his employer of his admittance to a hospital for drug rehabilitation sometime after being admitted. Claimant's absenteeism is not excused because it was caused by his admittance to a drug abuse rehabilitation program inasmuch as his drug abuse problem was a foreseeable result of his use of an illegal substance.

2. After reemployment, it was not good cause for claimant to voluntarily leave his job in order to avoid the location near the worksite where alleged drugs were available for purchase.

AB 409,188

By initial determinations of the local office, the claimant was disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith effective March 1, 1991, or, in the alternative, because of a voluntary leaving of employment without good cause Effective March 1, 1991; was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective April 16, 1991; and disqualified from receiving benefits because of a refusal of suitable employment without good cause effective April 16, 1991; and held ineligible to receive benefits because claimant was not available for employment effective April 1, 1991, only. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated May 28, 1991, the Administrative Law Judge sustained the initial determination holding the claimant ineligible to receive benefits effective April 1, 1991, only, because he was not capable of employment and overruled all of the remaining initial determinations.

The Commissioner of Labor appealed the judge's decision to the Board, insofar as the judge overruled the alternative initial determination of misconduct in connection with employment and voluntary leaving of employment without good cause effective March 1, 1991 and insofar as the judge overruled the initial determination of voluntary leaving of employment without good cause effective April 16, 1991. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

A further hearing was held before the Board, at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor.

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

FINDINGS OF FACT: The claimant worked as a driver for a private sanitation company for over four years until March 1, 1991. Prior to commencing this employment the claimant had undergone treatment for drug abuse on two occasions. On March 1, 1991, claimant entered a hospital to undergo further treatment for drug abuse. The employer was aware of the claimant's drug problem. While the claimant was in the hospital, the employer was notified by the hospital staff that he had been admitted there. When the claimant personally informed the employer of his whereabouts, he was notified of his discharge.

On April 12, 1991, the claimant became aware that the employer had work available. He returned to work there. He worked on April 13, 15, and 16. On April 16, 1991, he completed his last assignment for the day. He was due back in the office shortly thereafter, but he did not return on that day. The claimant used cocaine that was offered to him at a location near to his job. He did not contact the employer or report back to his job. The claimant had been advised by doctors and other specialists at the treatment center that he should avoid the locations in which was most likely to have access to illegal drugs. During the course of his employment, claimant had often bought drugs near the location of the employer's operation.

OPINION: The credible evidence establishes that the claimant's first phase of employment ended when he was discharged upon informing the employer of his admittance to a drug abuse rehabilitation program. Although there was a clear need for the claimant to have undergone treatment we also note that his drug abuse problem was a foreseeable result of his use of an illegal substance. Under these circumstances, we conclude that his loss of employment is due to misconduct in connection therewith. (See Matter of Kuehn, 174 AD 2d 776, aff'g Appeal Board no. 398,533A).

The credible evidence also establishes that the claimant voluntarily left his job when he decided not to report back to the location of his employment on April 16, 1991, and thereafter failed to contact his former employer. Even accepting the claimant's testimony that he was offered cocaine near to his job, used, and had a relapse, his own voluntary, illegal use of drugs whether on April 16, 1991, or on the very first occasion that he had used an illegal substance, resulted in the foreseeable consequence of a drug abuse problem. The claimant's desire to avoid the location of his employer's establishment may be understandable, but we do not find good cause for purposes of entitlement to unemployment benefits where his voluntary use of an illegal substance was the cause of his problem. Accordingly, we conclude that the claimant voluntarily left his employment without good cause and is therefore, disqualified from receiving benefits effective April 16, 1991.

In view of the fact that we have ruled that the claimant is disqualified from receiving benefits because he voluntarily quit his job effective April 16, 1991, it is not necessary that we rule on the issue of refusal of employment without good cause effective the same day.

DECISION: The initial determinations of misconduct in connection with employment, effective March, 1991, and of voluntary leaving of employment without good cause effective April 16, 1991, are sustained.

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

COMMENT

Matter of Kuehn, 174 AD 2d 776, affirming AB 398,533A was reported as A-750-2030.

 



A-750-2059

Index No. 795-16

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

November 1993

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Other Causes of Unavailability

AVAILABILITY – ALIENS

A claimant, who is an alien legally present in the United States with a visa authorizing her to work, but only for a specific employer, is not able and available to work when laid off from that employment. Under her visa, she could not legally accept an offer for immediate employment with a different employer.

AB 417,640

By initial determination of the local office, the claimant was held ineligible to receive benefits effective August 5, 1991 because claimant was not available for employment. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision dated April 10, 1992, the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge’s decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor.

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

FINDINGS OF FACT: The claimant, a ballet dancer, is an alien. During the period in issue, she had an H-1 visa, permitting her to work in the United States, but only for ABT, a ballet company which was her only base period employer.

The claimant was laid off at the end of the company’s season, and filed a claim for benefits effective August 5, 1991.

OPINION: United States Department of Labor Unemployment Insurance Program Letter No. 1-86 clarifies the Department’s position regarding Section 3304(a)(14)(A) of the Federal Unemployment Tax Act. See 26 U.S.C. 3304. See also Labor Law, Section 590.0 and 591.2. The Program Letter provides that aliens must satisfy two requirements in order to be deemed eligible to receive benefits.

First, the wage credits used to establish a valid claim must be earned while an alien is legally authorized to work in the United States. Second, the person must be "able and available" to work; in this regard, the unemployed alien must be legally authorized to work in the United States to be considered available for employment.

The claimant’s base period earnings record is not in dispute; it is clear that her visa permitted her to work in this country, and her weeks of employment by ABT, and her earnings, were properly counted in determining her eligibility.

The evidence also establishes, however, that during the period for which she claimed benefits the claimant was unable to legally work for any employer other than ABT. While it may have been possible for her to obtain permission from the Immigration and Naturalization Service to work for other employers, she did not have such permission and could not legally accept an offer for immediate employment.

Therefore, the claimant may not be deemed to be available for employment because during the period in issue she lacked proper authorization permitting her to work for any employer other than ABT.

Accordingly, we conclude that the claimant was not eligible to receive benefits during the period in issue.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. For a detailed discussion of this subject see A-710-52 (Revised) Alien Claimants.

 

    1. This is one of a series of cases similarly decided by the Appeal Board. In AB 396,713, the Board reached a similar conclusion when the period claimant was seeking benefits was "A short hiatus in the company’s performances."

A-750-2060

Index No. 1505 D-4
1505 E-6

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

November 1993

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISREPRESENTATION AND REDETERMINATION
Relationship to Benefit Rights
Other Considerations

WILFUL MISREPRESENTATION – BENEFIT CHECK

Claimant’s action in signing the back of the benefit check and then cashing it constitutes a wilful false statement when claimant knew she was not entitled to receive the benefits.

AB 396,995

By initial determination of the local office, the claimant was disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith effective April 15, 1989; and charged with a recoverable overpayment of $1,368.00 in benefits. By further initial determination issued effective June 5, 1989, the claimant was held ineligible to receive benefits because claimant was not totally unemployed; and claimant’s right to future benefits was reduced by eight effective days because claimant wilfully made a false statement. The claimant requested a hearing.

The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant and on behalf of employer and of the Commissioner of Labor. By decision dated November 8, 1990 the Administrative Law Judge overruled the misconduct and wilful misrepresentation determinations, sustained the lack of total unemployment determination and reduced the overpayment determination from $1,368.00 to $456.00

The Commission of Labor and the employer appealed the judge’s decision to the Board insofar as it overruled the misconduct and wilful misrepresentation determinations and insofar as it modified the overpayment determination. In connection with its review of the case, the Board considered the arguments contained in the written statements submitted.

No appeal has been taken from that portion of the judge’s decision that sustained the determination holding the claimant ineligible effective June 5, 1989, because she was not totally unemployed.

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

FINDINGS OF FACT: The claimant was employed at a hospital as a special security officer for three and a half years until April 14, 1989. On that day, the claimant left her post in order to attend to an urgent personal matter. She knew that ordinarily she must obtain authorization to leave her post, and she tried to do that on this occasion. She called her office for up to 15 minutes but the telephone was not answered. The dispatcher was unable to reach the claimant’s supervisor. The claimant could wait no more, so she left her post for the few minutes that were necessary to deal with her problem.

While she was returning to her post, the claimant heard a commotion, which sounded like people fighting. She went to investigate and was assaulted by an individual who was involved in the altercation.

She called the hospital dispatcher for assistance, but the dispatcher was unable to reach the claimant’s supervisor or other security officers. The claimant then called the police. When the claimant’s supervisor finally arrived in the dispatcher’s office, the claimant told him that she had already called for police assistance.

Later that same day, the claimant was instructed by her supervisor, who was a Sergeant, to submit to a blood test. The claimant was prepared to comply with the directive until she was informed by another Sergeant, who belonged to her union, that under the circumstances which had occurred that day, she was not obliged to take the test. The claimant then refused to take the blood test. The claimant then refused to take the blood test.

The claimant was suspended on April 17 without pay because of the April 14 incidents. During her disciplinary suspension, the claimant was not paid for the period April 17 through June 4, 1989. Formal charges were brought against the claimant which her union grieved on her behalf. After a disciplinary hearing, the claimant was found guilty of ten charges of misconduct and her immediate termination was recommended. The grievance then proceeded to arbitration.

The claimant filed an original claim for benefits effective May 1, 1989, and was held eligible. Thereafter, she received $1,368.00 in benefits before her claim was redetermined and she was disqualified.

The arbitration was resolved by an agreement dated October 3, 1989, in which the claimant pled guilty to four charges:

First, that she abandoned her post without authorization. Second, that she called for police assistance without authorization. Third, that she was insubordinate by refusing to obey an order to submit to a blood test. The claimant also pled guilty to a charge that on April 25, 1988, she had engaged in conduct unbecoming an employee by using profanity in addressing her superior officer.

The claimant agreed to accept an eight-week suspension in order to end the dispute and return to work. She was restored to the payroll in a non-work status effective June 5, 1989, and was fully reinstated and returned to duty on October 10, 1989.

After the claimant was restored to the payroll, she received a benefit check for $456.00 for the weeks ending June 11 and June 18, 1989. The claimant signed and cashed the check.

OPINION: The credible evidence establishes, through the claimant’s admissions in the stipulated settlement of her grievance, that on April 14, 1989 she left her post without first obtaining authorization to do so, and that later the same evening she telephoned for police assistance after becoming involved in an altercation during which she was assaulted. She did not obtain authorization to call for police assistance, although she knew that she also was required to that before making such a call.

The claimant tried to communicate with a supervisor before leaving her post, and later, before telephoning for police assistance after she was assaulted. The hospital dispatcher was unable to reach a supervisor, leaving the claimant no reasonable alternative to attending promptly to the matters at hand in each instance. We conclude, therefore, that the claimant’s acting as she did on each occasion did not constitute misconduct under the Unemployment Insurance Law.

The credible evidence also establishes that the claimant refused to provide a specimen for a blood test later that evening. Although the claimant’s supervisor directed her to provide the sample, the claimant was understandably confused when another Sergeant intervened and told her that she was not required to obey the order. We conclude that under these peculiar circumstances, the claimant’s refusal did not rise to the level of misconduct.

The credible evidence establishes in addition that fully one year earlier, the claimant used profanity in addressing a superior officer. Inasmuch as discipline was not imposed for that independent occurrence over the course of a year, we cannot conclude that it was a material element in the claimant’s suspension in 1989. Accordingly, she should not be disqualified for that offense.

As we have concluded that the claimant is eligible to receive benefits, she is entitled to the $912.00 that she received for the period prior to being restored to her employer’s payroll. The claimant does not dispute the determination that she was not entitled to benefits after being restored to the payroll on June 4, 1989, and has not appealed from that portion of the judge’s decision that sustained the determination that she was not entitled to unemployment insurance benefits for the weeks ending June 11 and June 18.

With respect to the issue of wilful misrepresentation to obtain benefits, the claimant, by her own admission, knew that she was not eligible to receive benefits after she was restored to her employer’s payroll effective June 4. In effect, when she signed the back of the benefit check for that and the following week, and then cashed it, she certified for benefits that she knew she was not entitled to receive. That act constitutes a wilful misrepresentation. Accordingly, we conclude that the forfeiture penalty of eight effective days was properly imposed.

DECISION: The initial determination disqualifying the claimant because she lost her employment through misconduct is overruled.

The initial determination that the claimant made a wilful misrepresentation to obtain benefits, and imposing a forfeiture penalty of eight effective days, is sustained.

The initial determination that the claimant received an overpayment of $1,368 in benefits is modified to reflect and overpayment of $456 in benefits, and as so modified, is sustained.

The decision of the Administrative Law Judge, insofar as appealed from, is modified accordingly, and as so modified, is affirmed.

COMMENTS

    1. The back of the benefit check now contains the following certification:

I certify that on each day during the period(s) shown on the front of this check I did not work in employment or self-employment and I was ready, willing and able to work except as reported to the local office. I informed the local office of all job offers, any refusal of job offers and of any vacation, holiday, pension or retirement pay due or received. I did not claim benefits for any part of this period(s) under any State or Federal Unemployment Insurance Law.

Signature, Date

    1. Of course, prior to using the statement on the back of the check, every effort should be made to locate the certification document. If such is not available then, after obtaining a copy of the check for the week at issue, the certification on the back can be the basis for the wilful misrepresentation.
    2. The date of the wilful misrepresentation is the date claimant cashed and signed the check, which appears next to claimant’s signature. If this date cannot be established by an examination of the check, the day before the Bank Batch date on the Benefit Ledger Transcript should be used. This date is the first five digits of the Bank Batch number.

 



A-750-2061

Index No. 1540-2

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

November 1993

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISREPRESENTATION AND REDETERMINATION
Refusal of Employment

WILFUL MISREPRESENTATION

Claimant’s negative response on the certification coupon to the specific question, "Did you refuse any job offer or job referral?", constitutes a wilful false statement to obtain benefits, when in fact claimant did refuse a job offer or job referral.

AB 422,157A

The Board, on its own motion pursuant to Section 534 of the Law, hereby reopens for reconsideration its prior decision which was mailed and filed on July 9, 1992, (Appeal Board No. 415,874), which affirmed the decision of the Administrative Law Judge filed February 6, 1992, which sustained the timeliness objection imposed by the Commissioner of Labor and continued in effect the initial determination by which the claimant was disqualified from receiving benefits because of a refusal of suitable employment without good cause effective October 18, 1991; and charged with a recoverable overpayment of $217.25 in benefits; and claimant’s right to future benefits was reduced by 16 effective days because claimant wilfully made false statements to obtain benefits.

Upon due consideration of the entire record, and

Due deliberation having been had,

Now, therefore, based on the entire record and testimony in this case, and on all of the proceedings heretofore and herein, the Board makes the following:

FINDINGS OF FACT: The claimant, a substitute teacher, was offered employment in such capacity for October 18 and October 25, 1991. She refused these offers because she wanted to be available for full-time employment and because she was unsure of the effect that acceptance of such offers would have on her eligibility for unemployment insurance benefits.

The claimant received benefits amounting to $217.25. On her benefit certification coupons for the weeks ending October 20 and 27, 1991, the claimant certified that she had not refused any offer or employment.

The claimant received an initial determination shortly after November 27, 1991, but the record does not establish whether or not such determination contained instructions concerning a request for a hearing or the time limit within which to request a hearing. The claimant requested a hearing by written correspondence postmarked December 30, 1991.

OPINION: The credible evidence shows that the claimant refused employment for two days in October because she wanted to be available for full-time employment and because she was unsure of the effect that per diem employment would have on her eligibility for unemployment under the law. She was therefore overpaid $217.25 in benefits which the Commissioner of Labor has a right of action to recover pursuant to Section 597.4 of the Law.

Also, the claimant’s certifications that she had not refused employment on the days in issue constitute wilful false statements made to obtain benefits. She knew that she had refused the offers of employment, and her uncertainty as to the effect on per diem work on her eligibility for benefits is immaterial to this issue.

In consideration of our ruling on the aforementioned issue, and in light of the insufficient evidence that the claimant received a determination in the mail which informed her of the right to request a hearing, and of the time limit in which to request a hearing, we will overrule the timeliness objection. The only determination admitted for the record was a computer-generated sheet which does not contain any instructions regarding a hearing.

DECISION: The decision of the Board filed on July 9, 1992 (Appeal Board No. 415,874), is hereby rescinded.

The timeliness objection is overruled.

The initial determinations of the local office are sustained.

The decision of the Administrative Law Judge is modified accordingly and, as so modified, is affirmed.

COMMENTS

    1. The Appeal Board’s decision in this case eliminates the necessity of finding other additional evidence indicating claimant’s knowledge of the falsity or willfulness. This is because the current certification format asks the claimant a specific question about refusal of employment. A discussion on this topic is contained in Field Memorandum 4-91 entitled Wilful Misrepresentation Re: Refusal and the New Certification format.
    2. This rule replaces A-750-1691 reported at 1540-2 which should be marked obsolete.

 



A-750-2062

Index No. 1160-8

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

April 1994

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Insubordination

INSUBORDINATION – VULGARITY

Vulgarity directed toward a supervisor to express defiance, as opposed to an uncalculated remark made under stress, a misconduct.

AB 427,946

By initial determination of the local office, the claimant was disqualified from receiving benefits effective January 1, 1993 because of a loss of employment through misconduct in connection therewith. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision dated March 23, 1993, the Administrative Law Judge overruled the initial determination.

The employer and the Commissioner of Labor appealed the judge’s decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statements submitted on behalf of the employer and of the Commissioner of Labor.

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

FINDINGS OF FACT: The claimant worked as a waiter and set-up man in a hotel restaurant for about two years until December 31, 1992. On New Year’s Eve, the claimant was on duty as a waiter. As it was a very busy night, at about 2 AM, the claimant’s supervisor asked a group of waiters, including the claimant, to rack glasses. The claimant became irritated because he believed the set-up crew was not performing their duties. The claimant raised his voice and argued with the supervisor who, after unsuccessfully trying to calm him, told him to go home. The supervisor intended to discuss this matter with the claimant at another time. When the claimant continued to argue, the supervisor called security personnel.

When security personnel arrived, the claimant felt embarrassed in front of his co-workers. As he left the premises, he called the supervisor a "fucking asshole". The claimant was discharged for his use of foul language towards the supervisor. The claimant had received the employer’s handbook outlining that an employee directing vulgar language towards a supervisor is subject to summary dismissal.

OPINION: The credible evidence establishes that the claimant was discharged for addressing his supervisor with vulgarity after that supervisor had ordered him to leave the premises. The supervisor’s request for the claimant to rack glasses, during a very busy night at the restaurant, was reasonable, as was the supervisor’s direction for the claimant to go home after unsuccessfully trying to calm him down.

We do not agree with the Administrative Law Judge’s conclusion that the decision in this case is governed by the Matter of Marquez, 107 AD 2d 959, rev’g Appeal Board No. 345,077. There, in the midst of an argument over alleged errors in the claimant’s work, the claimant’s supervisor said, "What the hell are you talking about?" The claimant then replied, "I am not going to take this shit from you anymore". The Court found that the claimant’s remarks were "uncalculated and made under stressful circumstances", and that she could not have realized or expected that her conduct would provoke her discharge. In the case at hand, the claimant had already been instructed to leave. His remark to the supervisor was calculated to indicate his defiance. He also had received the company handbook which stated the employer’s policy on vulgarity uttered towards a supervisor. Under the circumstances, we conclude that the claimant lost his employment through misconduct.

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

The decision of the Administrative Law Judge is reversed.

COMMENT

Unlike an uncalculated remark containing vulgar language which is made under stressful conditions, a vulgarity, directed toward a supervisor to express defiance after being warned such behavior could result in discharge is insubordinate misconduct.

 



A-750-2064

INDEX 1420-15

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

April 1994

INTERPRETATION SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Self-employment

EXPLORING SELF-EMPLOYMENT

Although exploring the possibility of opening a business, a claimant is totally unemployed provided there is no financial commitment to the business venture nor is substantial time or effort devoted to preparing for it.

AB 423,599

By initial determinations of the local office, the claimant was held ineligible to receive benefits because claimant was not totally unemployed effective March 17 through June 10, 1992; and charged with a recoverable overpayment of $1,369 in benefits. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated November 10, 1992 the Administrative Law Judge sustained the initial determinations.

The claimant appealed the judge's decision to the Board.

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

FINDINGS OF FACT: The claimant, who had previously worked as a landscaper, filed an original claim for benefits effective October, 1991. He was found eligible without any disqualifying conditions and received benefits at the weekly rate of $296. Between the period of March 17 through June 10, 1992, the claimant began exploring the possibility of opening and operating a sports bar/restaurant. During this period, the claimant spent approximately 20-30 minutes on several days speaking to a potential investor. The claimant also sporadically looked at and priced restaurant equipment. The claimant did not engage in any other preparatory work such as consulting with an attorney, entering into contracts, signing a lease, opening a checking account, advertising or making financial commitments towards the furtherance of the business venture. After making his initial inquiries, the claimant abandoned the idea. Throughout this period, claimant was also looking for work in his regular field.

OPINION: The credible evidence establishes that claimant was totally unemployed during the period in issue herein. Although the claimant was interested in becoming self-employed, the actions taken by the claimant were merely to explore the possibility of opening a business. Significantly, the claimant did not devote substantial time and effort engaging in preparatory activities necessary to becoming self-employed. Furthermore, he continued searching for work in other areas during this period and made no financial commitments towards the furtherance of the business venture. Accordingly, we find that the minimal work and inquiries the claimant made towards his plans to become self-employed did not go beyond the exploratory stage. Therefore, the claimant was totally unemployed and is entitled to the benefits he received.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. This rule is consistent with the holding reported in A-750-1708 that a claimant is not totally unemployed while preparing for the commencement of business. In that case, claimant had signed a lease and purchased equipment. In the instant case claimant had made no financial commitment and his activities in exploring self-employment were sporadic in nature.
    2. The issue of availability must always be considered when a claimant is exploring self-employment. A claimant who restricts himself solely to seeking self-employment is not available for work. In the instant case the Appeal Board found claimant was looking for work in his regular field. In evaluating such a contention we should consider claimant's opportunity for work in his regular field, knowledge of the means of seeking employment and other pertinent considerations.

 



A-750-2065

Index No. 1420-16

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

April 1994

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
TOTAL OR PARTIAL UNEMPLOYMENT
Self-Employment

ESTABLISHING A BUSINESS VENTURE

A claimant lacks total unemployment during the period he/she is performing substantial activities, including efforts to obtain the licenses necessary to establish a business and committing money to the venture.

AB 413,557

By initial determination of the local office, the claimant was held ineligible to receive benefits because claimant was not totally unemployed effective October 30, 1989 through April 8, 1990; and charged with a recoverable overpayment of $5,390 in benefits; and claimant’s right to future benefits was reduced by 108 effective days because claimant wilfully made false statements to obtain benefits; held ineligible to receive benefits because claimant was not totally unemployed effective November 5, 1990 through April 21, 1991; and charged with a recoverable overpayment of $5,740 in benefits; and claimant’s right to future benefits was reduced by 92 effective days because claimant wilfully made false statements to obtain benefits. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated November 21, 1991 the Administrative Law Judge overruled the initial determinations.

The Commissioner of Labor appealed the judge’s decision to the Board. In connection with the review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant was laid off from her job as ambulette driver, and filed an original claim for benefits effective October 30, 1989. The claimant received $5,390 in benefits following the filing of this unemployment insurance claim, and she certified that for each week that she received benefits, she had done no work in employment or self-employment. She was approached by an individual, who had done business with the claimant’s employer, regarding the possibility of going into the ambulette business. They filed a certificate of partnership on November 13, 1989.

In order to operate the ambulette service, the partners had to obtain licenses from the New York State Departments of Transportation, Motor Vehicles and social Services, approval from the last-mentioned agency necessary in order to obtain a provider number for Medicaid reimbursement. A bank account was opened, and $4,000 was deposited into the account. Both partners had the authority to sign checks on the account.

The claimant and her partner made telephone calls and visits to government agencies, and they prepared and filed the necessary documents with which to obtain the licenses. They also took physical examinations necessary for the issuance of the licenses, and they took driving safety courses. From her five years of work in the ambulette business the claimant had acquired expertise in the field which her partner did not possess. The claimant also contributed out-of-pocket monies for business purposes, for which she was reimbursed by checks from the business account.

The claimant returned to work for three months for her former employer in the summer of 1990, after which she filed for benefits again in November 1990. The claimant received $5,740 in benefits in connection with her claim in November 1990, and she certified that during each week for which she received benefits she had done no work in employment or self-employment. By November 1990, all of the necessary licenses had been obtained. Beginning in November 1990, the claimant and her partner ordered business cards, wrote checks, acquired vans, purchased insurance and prepared advertising and promotional letters in anticipation of opening for business. For 1990, the claimant claimed losses from the ambulette business on her personal income tax return. The ambulette service opened for business in April 1991.

The determinations holding the claimant ineligible for the period beginning October 30, 1989, charging her with a recoverable overpayment of $5,390 and imposing the forfeit penalty of the 108 days was issued on July 29, 1991.

OPINION: Pursuant to Section 597.3 of the Labor Law, in order for the Commissioner of Labor to review a determination concerning a claim for benefits as a result of new or corrected information more than a year following the issuance of such determination, there must be fraud or wilful misrepresentation. As the redetermination in this case took place more than a year after the claimant had received benefits for the period from October 30, 1989 through April 8, 1990, we must first decide if there was fraud or wilful misrepresentation.

The credible evidence establishes that the claimant and her partner had, in the weeks immediately following the filing of the earlier of the two unemployment insurance claims which are in issue, embarked upon establishing an ambulette business. They applied for the necessary licenses after filing the partnership certificate. The claimant performed necessary tasks in furtherance of the business objective. A business name was selected and a bank account was opened. The claimant’s expertise in the field was important to the establishment of the business. She was clearly acting in furtherance of the partnership objective throughout the period in issue. We find that her activities during the period from October 30, 1989 through April 8, 1990 were so concerted that they should have generated an awareness in her that her certifications to the local office were misrepresentations of reality. Accordingly, we find that the claimant wilfully misrepresented to the local office that she was totally unemployed between October 30, 1989 and April 8, 1990, and that the local office, therefore, had the authority to redetermine the claim even at such a late date.

The claimant’s substantial activities toward the establishment of the business render her ineligible to receive benefits for this period because she was not totally unemployed. The benefits which she received constitute an overpayment which the Commissioner of Labor has a right of action to recover, pursuant to Section 597.4 of the Labor Law. The forfeit penalty of 108 effective days was correctly imposed with the regard to the wilfully false certifications cited above.

Insofar as the later period under review is concerned, the credible evidence establishes that the claimant was even more heavily engaged in activities directly connected to the imminent operation of the business. The purchase of insurance, supplies and equipment and the creation and dissemination of advertising for the business occupied much of the claimant’s time during the period of the second claim. The claimant’s tax return for 1990 sets forth certain losses incurred by the claimant in establishing the business. It follows, therefore, that she was not totally unemployed for the period from November 5, 1990 through April21, 1991.

She was overpaid the benefits which she received for this period, and the Commissioner has a right of action to recover such monies. The claimant, by certifying that during these periods she was not engaged in self-employment, made wilful false statements to obtain benefits. The forfeit penalty of 92 effective days was correctly imposed.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. In this case the Appeal Board found claimant to lack total unemployment even though during the earlier period involved the business could not have commenced because the licenses were still pending. The combination of the activities to get the licenses, commitment of funds and claimant’s necessary expertise support the determination of lack of total unemployment.
    2. Unlike the situation in AB 423,599; A-750-2064, the partners in this venture committed $4,000 to open a checking account, cost were incurred and checks were drawn from that account. The commitment of money to a venture is usually a good indication that the person has moved from the "exploring" phase to the "establishing" phase.

It is also significant that the claimant, alone, among the partners, possessed the skills necessary to operate the business.

    1. It should be noted that this determination of lack of total unemployment was sustained even though there was no evidence or allegation that claimant was unavailable for work and claimant did in fact return to work as an employee for a former employer for a period of time.

 



A-750-2066

Index No. 915 B-8

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

June 1994

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
REGISTERATION, REPORTING AND CERTIFICATION
Reduction Due to Pension
Amount of Reduction

PENSION REDUCTION – PARTIAL WEEK

A statutory week is not divisible for purposes of Section 600.7. Thus, if claimant is subject to a pension reduction because the eligibility for the pension began on any day during a week, the reduction is applied to the entire week.

AB 386,208

The Commissioner of Labor appeals from the decision of the administrative law judge filed March 9, 1988, insofar as it modified the initial determination charging claimant with an overpayment of $1,620 in benefits, ruled to be recoverable, to an overpayment of $1,543, ruled to be recoverable. No appeals was taken from that portion from the decision sustaining the initial determination holding that effective October 1, 1987, claimant’s benefit rate be reduced from $180 to zero, pursuant to Section 600 of the Law.

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

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

FINDINGS OF FACT: Claimant, a purchasing manager, worked for the employer herein for approximately 30 years until September 4, 1987. He filed an original claim for benefits effective September 4, 1987, and was held eligible to receive benefits at the rate of $180 per week. Claimant received $180 in benefits for the statutory week ending October 4, 1987. The recoverability of the benefits received thereafter is conceded by the claimant and is not an issue herein.

Within a few months after losing his employment with the base period employer herein, claimant began receiving pension payments of $875 per month. The payments were paid retroactively to October 1, 1987 and were paid from a fund to which the employer was the sole contributor.

OPINION: The issue to be resolved herein is whether the claimant’s receipt of $875 in pension payments for the calendar month commencing October 1, 1987, should be applied on a pro-rata basis to the entire statutory week ending October 4, 1987, or only that portion of the statutory week comprising October 1, through October 4, 1987.

Section 600.7(b) of the Law provides, in part: "If the claimant made no contribution for the pension…his benefit rate shall be reduced by the largest number of whole dollars which is not more than the pro-rated weekly amount of such payment." Since the pro-rated weekly amount of claimant’s payments exceeds claimant’s benefit rate of $180 per week, claimant’s benefit rate must be reduced to zero for the statutory week ending October 4, 1987. We note but disagree with the judge’s conclusion that the statutory week is divisible for Section 600 purposes. Since claimant received more than $180 in pension payments for the statutory week ending October 4, 1987, his pension rate for that week was properly reduced to zero. The benefits he received for that week are recoverable in their entirety.

Since no appeal was taken from that portion of the judge’s decision which held that effective October 1, 1987 claimant’s benefit rate was reduced from $180 to zero pursuant to Section 600 of the Law, it remains the law of the case.

DECISION: The initial determination of the local insofar as appealed from is sustained.

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

COMMENTS

    1. The maximum benefit in 1987 was $180 per week. Claimants pension began on Thursday, October 1, 1987.

This case was inadvertently not reported at the time it was decided.

    1. The Unemployment Insurance manual III 3245 provides a method to calculate partial weeks. This method should no longer be used. It is not required that we seek out determinations previously issued under that procedure.

 



A-750-2067

Index No. 1010-10

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

October 31, 1994

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
HEARINGS AND APPEALS
TIMELINESS

HEARING REQUEST – SPANISH LANGUAGE

When claimant’s need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely.

AB 429,173

By initial determination of the local office, the claimant was disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith effective October 2, 1992. The claimant requested a hearing. The Commissioner of Labor imposed a preliminary objection that the hearing request was not made within the statutory period.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated May 11, 1993 the Administrative Law Judge sustained the timeliness objection and continued in effect the initial determination.

The claimant appealed the judge’s decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted by the claimant.

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

FINDINGS OF FACT: The claimant worked for the employer, in the shipping and receiving department, for about five years until October 1, 1992. On or about September 1992, the office manager of the employer performed an audit of the telephone calls made from the employer’s premises. That audit showed that $1,000.00 to $3,000.00 worth of calls were made from the employer’s offices to Puerto Rico. The office manager investigated, and discovered that the claimant had made the telephone calls to his wife in Puerto Rico. Claimant made these calls without the authorization or permission of the employer.

When the claimant was confronted with making such calls, he at first denied doing so. He eventually admitted making the unauthorized calls and offered to reimburse the employer. The claimant was discharged on October 1, 1992, for "misuse" of company funds, by making these calls.

On October 16, 1992 the claimant filed an original claim for benefits. The claimant has difficulty understanding and reading English. A notice of determination, disqualifying the claimant for misconduct, was mailed to the claimant on January 3, 1992 and duly received by him. The aforesaid notice of determination and the instructions that were provided to the claimant, were only in English. There was no testimony at the hearing indicating that the claimant had the initial determination translated into Spanish.

OPINION: The credible evidence establishes that the local office went to the claimant the initial determination only in English, without Spanish translation or Spanish materials was clearly evident. There is no indicating that claimant had the initial determination translated into Spanish or had the opportunity to do so. The claimant, therefore, cannot be penalized for failing to make a hearing request within thirty days of the mailing of the notice of determination. The Board will, therefore, consider the case on the merits.

The credible evidence also establishes that the claimant was terminated for making at least $2,000.00 worth of telephone calls to Puerto Rico without the employer’s permission or authorization. Claimant’s offer to reimburse the employer for these calls indicate that claimant was aware of his culpability. The claimant’s actions were detrimental to the employer’s legitimate interest, and constitute misconduct in connection with his employment.

DECISION: The initial determination of the local office is sustained. The Commissioner of Labor’s timeliness objection is overruled. The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. Community Services Division (CSD) Procedure Book III 6240D requires that if a determination is issued to a Spanish speaking claimant with English language deficiencies, a LO 412.S must be attached. This form is written in Spanish and informs claimants of the statutory determination, advises them that the local office staff will explain the reason portion of the determination and explains their hearing rights and reporting responsibilities. It is required by the Municipal Labor Consent Judgement. If the C.S.D. does not issue this form it has failed to follow its own procedures and a claimant’s hearing request, regardless of when it is made, must be considered timely.
    2. Please note Procedure III 6235 A #1 and footnote 4. A 412C must likewise be issued for Chinese speaking claimants with English language deficiencies.
    3. There is no provision in procedure for similar forms in other languages. Consequently, claimants who speak other than Spanish or Chinese, may not be excused from the requirement to make a timely request.

 



A-750-2068

Index No. 1430-9

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

October 31, 1994

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
TOTAL OR PARTIAL UNEMPLOYMENT
CORPORATE OFFICERS

CORPORATE PRINCIPALS

When a business entity is no longer viable having given up the business premises, having liquidated the inventory, and having no accounts receivable, claimant’s limited and sporadic activities to pay the accounts payable do not render the claimant ineligible due to lack of total unemployment.

AB 424,288

By initial determination of the local office, the claimant was held ineligible to receive benefits because claimant was not totally unemployed effective August 17, 1992. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated December 10, 1992 the Administrative Law Judge sustained the initial determination.

The claimant appealed the judge’s decision to the Board.

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

FINDINGS OF FACT: The claimant was president and owner, with his wife, of a bed and bath retail corporation from April 1988 to August 14, 1992. On that date the claimant ceased doing business at his store, and vacated the premises by August 17, 1992, pursuant to a settlement with his landlord. The claimant had previously sold off the inventory, and liquidated the assets, due to business difficulties.

The claimant moved the books and records for the corporation to his home and began to seek employment. There were no accounts receivable and the only activity in which claimant engaged, for the corporation, was to research and pay residual accounts payable, on a sporadic basis. This amounted to about 10 or 12 checks in the month following close down of the store. The claimant planned to consult his accountant about the cheapest way to terminate the corporation. Any anticipated, subsequent tax liability would be paid from the claimant’s personal funds.

OPINION: The credible evidence establishes that the claimant’s business had deteriorated to the point that it was no longer a viable business entity. He had given up his business premises and liquidated his inventory. He does not stand to gain financially from this business. The sole service performed for the company, by the claimant, was the payment of past accounts payable on a limited and sporadic basis, not a substantial service. We, conclude, under the circumstances of this case, that claimant was totally unemployed and, therefore, eligible to received benefits.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. This case represents an exception to the general principle that a corporate officer lacks total unemployment as long as the corporation remains in existence. It should be carefully applied only to situations where the business of the corporation has ceased. It does not apply to slack periods (A-750-1837), temporary shutdowns due to fire (A-750-1995), or seasonal closings (A-750-2016).
    2. Accounts payable are the bills owed by the corporation. The Appeal Board held the paying of accounts payable was not a basis to hold claimant to lack total unemployment. Accounts receivable are monies owed to the corporation. The Appeal Board has held that where claimant stands to gain financially from collecting the accounts receivable, claimant should be held not totally unemployed. This is true even though the funds from the accounts receivable would have been used to minimize claimant’s losses (AB 195,279). The fact that the majority of the effort to collect the receivables was made by the accountant did not prevent a finding of not totally unemployed (AB 420,443)

 



A-750-2069

Index No. 2060-3

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

May 1995

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
SECTION 599
Receipt of Other Training Allowances

CALCULATION DATE

The calculation date used to determine eligibility for additional benefits cannot be earlier than the first date on which claimant has less than two years remaining in the program of training.

AB 435,695

By initial determination of the local office, dated November 9, 1993, the claimant was held ineligible to receive additional benefits, while in approved vocational training, under Section 599.2. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision dated December 3, 1993 the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge’s decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDNGS OF FACT: The claimant filed an original claim for unemployment insurance benefits in September 1992, and was held eligible to receive such benefits. At that time she also reported to the local office that she was enrolled as a student at Hunter College in a pre-nursing program. The claimant was scheduled to complete these classes in 1994, at which time she would enter the nursing program, which she expected to complete in June 1995. The local office did not, at that time, advise the claimant that she could apply for career training under Section 599 of the Labor Law. The claimant exhausted her entitlement to regular benefits on March 28, 1993. Thereafter, she applied for and began receiving Emergency Unemployment Compensation benefits.

On October 13, 1993, the claimant received approval pursuant to Section 599.1 of the Labor Law for her nursing studies, retroactive to June 1993, at which time she would have less than two years until completion of the program. However, the claimant was ruled ineligible to receive additional benefits under Section 599.2 because the claimant was no longer entitled to regular benefits at the time that her training program became approvable.

OPINION: The undisputed evidence establishes that, from September 1992, when the claimant filed her original claim and through March 1993, when she exhausted her entitlement to regular unemployment benefits, the course which she was attending was not approvable for career training under Section 599.1 of the Labor because the course required more than 24 months until completion. Furthermore, at the time the course became approvable in June 1993, the claimant was no longer entitled to any further regular benefits on her original claim.

Section 599.2(a) of the Labor Law provides, in pertinent part, that "a claimant attending an approved training course or program under this section may receive additional benefits…" and that "the duration of such additional benefits shall in no case exceed twice the number of effective days of regular benefits to which the claimant is entitled at the time the claimant is accepted in or demonstrates application for appropriate training" *emphasis added. The statutory language therefore requires that the course be approvable when eligibility for regular benefits still exists. Inasmuch as the claimant could not meet this requirement, we conclude that she is not entitled to such additional benefits.

Furthermore, while the record fails to disclose the reasons why an application for career training approval was not processed earlier, we note that, in view of the undisputed facts, this would have no bearing on the ultimate result.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. This decision affirms the principle stated in Field Memorandum 2-93, "Section 599: Final Regulations and Clarifications."
    2. The calculation date is the earliest of three dates. The date claimant applied for, was accepted in, or began appropriate training. Section 599.1c requires that the training not require more than twenty-four months to complete. Prior precedent determined that this meant the amount of time remaining in the training course. In this case the completion date of the training course exceeded twenty-four months both at the time claimant had applied for or was accepted into the training. Therefore, neither could be used as the calculation date for the purpose of determining eligibility under 599.2 even after less than twenty-four months remained in the training.

 



A-750-2070

Index No. 1625-8

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

November 1995

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
VOLUNTARY SEPARATION
Corporate officer and stockholder

SALE OF BUSINESS

Despite a corporate officer’s contention that he was forced to sell his business due to losses, the claimant quits without good cause when the business continued to pay the officers salaries, found a buyer who continued to run the business and there was no specific factor or even which changed the viability of the business. The claimant failed to establish the business was no longer viable.

AB 442,233

By initial determination of the local office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective August 19, 1992. The claimant requested a hearing.

The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated July 21, 1993 the Administrative Law Judge sustained the initial determination.

The claimant appealed the judge’s decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

FINDINGS OF FACT: The claimant was an officer and 50 percent owner of a corporation which operated an automobile brake repair business for about twenty-five years until the business was sold on August 29, 1992. The claimant and two partners originally paid a total of $27,000 dollars for the business. The third partner was bought out 1981. In 1989, the business had gross sales of about $123,000, which resulted in a net loss of about $400 after deducting the salaries of the claimant and his partner of $20,800 each. In 1990, the business had gross sales of $118,500, a net loss of about $5,000 and salaries to the claimant and his partner of $20,800 each. In 1992, and until the date of sale of the business, the business had gross sales of about $77,000, a net loss of about $6,500 and salaries of the claimant and his partner of $14,000 each.

The claimant’s accountant advised the claimant that the business was minimally profitable and should therefore consider an offer to buy the business. The business was sold for $30,000 and continued to operate in the same capacity without interruption under the new ownership.

OPINION: The credible evidence establishes that the claimant voluntarily left his employment when he and his partner sold their business. However, the record fails to establish that the business was no longer financially viable at the time of the sale. Significantly, in each of the last four years the claimant and his partner were able to draw a substantial salary from the business. Furthermore, they were successful in finding someone to purchase the business who continued to run the business, in the same capacity, as a viable enterprise. As such, the circumstances of this case are readily distinguishable from those cases where the sale of a business was deemed to be for compelling financial reasons. In Matter of Samuel Confino, 189 AD 2d 962 (1993), the Appellate Division held that a claimant had a compelling reason to sell a business after the business had lost its sole account. In Matter of Matilda L. Crawford, 182 AD 2d 1047 (1992), the Court held that a claimant had a compelling reason to sell a business when the principal of the business became afflicted with arthritis and could no longer perform his crucial functions. In Matter of Anthony Spinella, 168 AD 2d 817 (1990), the Appellate Division held that a claimant had a compelling reason to sell a business when the business lost key employees who could not be replaced. In Matter of Seymour Katz, 123 AD 2d 489 (1986), a business had three consecutive years of losses and the claimant was forced to infuse personal funds into the business to keep it going.

Applying the above situations, we find that, while the claimant’s business was producing losses, the claimant was still able to draw a salary and there was no specific factor or event which changed the viability of the claimant’s business so as to compel the claimant to sell at the time he did. Accordingly, we conclude that the claimant sold his business for personal non-compelling reasons and without good cause. Inasmuch as the business was sold on August 29, 1992, the effective date of the determination should be modified accordingly.

DECISION: The initial determination of the local office is modified to be effective August 29, 1992, and as so modified, is sustained.

COMMENT

The claimant has appealed this case to the Appellate Division.

 



A-750-2071

Index No. 1110-19
1125-12
1152-8

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

March 1996

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Absence and Lateness
Alcohol
Drugs

DRUGS & ALCOHOL

Unsatisfactory attendance is not excused by claimant’s addictions to both a controlled substance and alcohol. Because the controlled substance is illegal, the claimant’s alcoholism should not be considered in determining the reason for separation.

AB 445,500

By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions effective September 19, 1994. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated November 23, 1994 the Administrative Law Judge sustained the initial determination.

The employer appealed the judge’s decision to the Board.

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

FINDINGS OF FACT: The claimant was employed as a probationary quality control technician from June 6, 1994 to August 17, 1994. The claimant had been warned several times about his tardiness, the last time being July 14, 1994. The claimant did not report to work after August 17, 1994, due to his addiction to alcohol and cocaine. He sought treatment for his condition. He entered a residential treatment program on August 18, 1994. He was discharged from his position because of his unsatisfactory attendance while on probation.

OPINION: The credible evidence establishes that the claimant lost his employment as a result of his unsatisfactory attendance. His last absence was caused at least in part by his use of cocaine, which is in violation of the law. The claimant admitted this at the hearing. In Matter of Kuehn, 174 AD 2d 776, aff’g Appeal Board No. 398,533A, the Court affirmed a decision of the Board which observed significant difference in the way alcoholism and drug addiction are judged by society and, consequently, how each is and should be viewed under New York State law. As procurement, possession, and use of a controlled substance constitutes criminal activity, the negative consequences of which can be reasonably foreseen, the claimant must bear the responsibility for his last absence.

The employer had a legitimate expectation that its employee would be present during scheduled hours of work. This record establishes that the claimant, while on probation and already having been warned about tardiness, was unable to meet this expectation due to his use of cocaine and alcohol. We will not, in the face of the claimant’s admission to use of cocaine, apportion the reason for his last absence between use of alcohol and use of cocaine where there is evidence of both. So long as his course of conduct, culminating in his failure to report for work, is clearly attributable to voluntary use of cocaine, we find that he lost his employment through misconduct in connection therewith. The claimant should, therefore, be disqualified from receiving benefits. The disqualification is effective August 18, 1994.

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

The decision of the Administrative Law Judge is reversed.

 



A-750-2072

Index No. 1137-5
1155-6
1160-9

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

March 1996

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Civil Rights
Hours (Including Overtime, Weekend)
Insubordination

JURY DUTY

Refusal to work an evening shift while serving jury duty is not misconduct because such work would be contrary to public policy and would infringe upon and inhibit the claimant’s physical ability to properly serve as a juror the following day.

AB 432,522

By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions effective May 10, 1993. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a loss of employment through misconduct in connection therewith.

The Administrative Law Judge held a hearing at which testimony was taken. There were appearance on behalf of the claimant and of the employer. By decision dated September 1, 1993 the Administrative Law Judge sustained, effective May 19, 1993, the employer’s objection to the initial determination.

The claimant appealed the judge’s decision to the Board. A further hearing was held before the Board, at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, of the employer and of the Commissioner of Labor. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant worked for two years as a counselor for a health center until May 5, 1993. The claimant’s normal work hours were Monday to Friday, 9 AM to 5 PM, except on Wednesdays, when the center stayed open late and the claimant worked to 9 PM. The claimant was called for jury duty and designated as a juror some time in April 1993. On April 30,1993 the employer advised the claimant that they wanted her to work her late hours on Wednesday, May 5, 1993, after jury duty. The claimant told her employer that she could not do this because she felt she would be too tired to work after jury duty. The employer therefore issued a memo, dated April 30,1993, which ordered the claimant to report for work on Wednesday May 5, 1993, after jury duty, or face possible discharge. The claimant served on jury duty on May 3, 1993, for a brief period and reported to work afterward. The claimant served on jury duty on May 4 and May 5, 1993 until about 4:30 PM and was scheduled to serve the following day. She called her employer on May 5, 1993, to let them know that she would not be coming in to work. After receiving this phone call, the employer discharged the claimant for failing to report to work after jury duty despite the written directive to do so.

OPINION: The credible evidence now before the Board establishes that the claimant was discharged for failing to report to work after a full day of service on jury duty. The employer’s order, that the claimant report for work after jury duty, is contrary to public policy, as embodied in Section 500 and Section 519 of the Judiciary Law, which provides, in pertinent part, "Any person who is summoned to serve as a juror under the provisions of this article and who notifies his or her employer to that effect prior to the commencement of a term of service, shall not, on account of absence from employment by reason of such jury service, be subject to discharge or penalty."

While the employer argued that they were asking the claimant to work after her jury duty was complete for the day in question, we find that this would still violate the policy expressed in the aforesaid statute, because he would infringe upon and inhibit the claimant’s physical ability to properly serve as a juror. It is furthermore significant that the claimant was scheduled for jury duty the following day. Accordingly, we conclude that claimant's failure to work after serving jury duty cannot be considered an act of misconduct.

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

The employer’s objection is overruled.

The decision of the Administrative Law Judge is reversed.

COMMENT

The employer’s order is contrary to the public policy of sections 500 and 519 of the Judiciary Law, which provides in part: "Any person who is summoned to serve as a juror under the provisions of this article and who notifies his or her employer to that effect prior to commencement of a term of service, shall not, on account of absence from employment by reason of such jury service, be subject to discharge or penalty."

 



A-750-2073

INDEX 1505-B4
INDEX 1580-C6

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

MARCH 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISREPRESENTATION AND REDETERMINATION
Agent or Impersonator
Deviations from standards

TEL-CERT

When a claimant obtains or attempts to obtain benefits fraudulently, by having another person certify for benefits on his behalf by giving that person access to his personal identification number (PIN), this constitutes an aggravated circumstance, for which a forfeiture penalty of 80 effective days of future benefits may be imposed.

AB 453,811

By initial determination of the local office, claimant's right to future benefits was reduced by 80 effective days because claimant wilfully made a false statement. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision dated August 18, 1995 the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant was employed as a journeyman by a stamping plant until December 18, 1994 when he lost his employment under non-disqualifying conditions. In applying for unemployment insurance benefits on February 1, 1995, he received a claimant's handbook in which he read that no one could certify for benefits on his behalf. Claimant thought that this had to do with signing documents and sending them in to the local office, and did not apply to certification by telephone. In addition to reading the handbook requirement regarding certification for benefits, the claimant attended an orientation session in which certifying for benefits by telephone through the use of a pin number was discussed. The claimant certified for benefits by telephone through the use of his pin number every Sunday until the week ending April 9, 1995. Claimant was out of state on vacation and gave his wife his pin number to certify on his behalf. The claimant did not ask local office personnel if he could give his pin number to anyone to certify for him.

OPINION: The credible evidence establishes that claimant made a wilful false statement when he had his wife certify for benefits on his behalf on April 9, 1995. Claimant acknowledged reading the claimant's handbook which advised claimant that no one is to certify for the claimant. Claimant's assumption that this prohibition only applied to certifications by document and not tel-certification, is not credible. The prohibition is clear and is without exception. No one may certify for a claimant. Given the claimant's knowledge of the prohibition, his behavior in giving his wife his pin number and to certify for him on April 9 constitutes a wilful false statement. Accordingly, we find that the claimant's right to future benefits is reduced by 80 effective days.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. In prior cases the Appeal Board held that authorization by a claimant, express or implied, to have an imposter claim his benefits, constitutes a wilful misrepresentation made to obtain benefits, for which the maximum penalty of 80 effective days should be imposed.

 

    1. In the present case, the Appeal Board held that the claimant made a wilful false statement when he had his wife certify for benefits on his behalf, by allowing her access to his PIN number which she used to certify for benefits while the claimant was on vacation. The Appeal Board sustained the determination of 80 forfeit effective days, which is the penalty for flagrant fraud.

 

    1. The Appeal Board acknowledged that the claimant handbook prohibits anyone else from certifying for a claimant, and that such prohibition is clear and without exception. In addition, claimant also signs a form, Receipt of Telephone Certification Information (LO 329.1), which further instructs him not to tell anyone his personal identification number (PIN) and advises him that he could lose up to 20 weeks of benefits if he allows someone else to use his PIN number. This form should be forwarded to the Adjudication Services Office when processing such cases for hearing.

 

    1. This ruling reinforces the policy discussed in Field Memorandum 4-93. The Appeal Board finds this wilful misrepresentation does constitute flagrant fraud, as discussed in Special Bulletin A-710-21.

 


A-750-2074

Index 1690.8
1705.5

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

MAY 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Pension or retirement
Reduction-in-force situations

CLIMATE OF UNCERTAINTY

Where an employer established a substantial down-sizing goal, a climate of uncertainty and fear of losing one's employment may constitute good cause for participation in a voluntary severance or retirement incentive program. All the following factors must be present: the employer established a substantial down-sizing goal; did not rule out layoffs in the event such goals were not achieved; did not establish clear criteria for selection of individuals if layoffs were necessary; and provided substantial incentives to participate in the work force reduction.

AB 432,222A

By initial determination of the Commissioner of Labor, the claimant was held eligible to receive benefits without any disqualifying conditions effective October 1, 1990. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a voluntary leaving of employment without good cause.

The Administrative Law Judge held telephone conference hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, of the employer and of the Commissioner of Labor. By decision dated May 23, 1991 the Administrative Law Judge sustained the initial determination.

The employer appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statements submitted. By decision dated May 19, 1993 the Board overruled the initial determination and reversed the Administrative Law Judge.

The Commissioner of Labor applied, under Section 534 of the Labor Law, for a reopening and reconsideration of the decision by the Board dated May 19, 1993 (Appeal Board 409,398). Due deliberation having been had, the Board determined to reopen and reconsider said decision. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant was employed by a bank as a clerk for more than 10 years until September 21, 1990. She was not a member of a union. She filed an original claim for benefits effective October 1, 1990.

On August 8, 1990, the employer sent a memo to its employees in the United States announcing a voluntary separation or "buyout" program for employees with at least 10 years of service. The memo stated as follows, in pertinent part:

"The Voluntary Separation Program is being offered for only a limited period of time -- from now through September 10. It is an integral part of the recent announcements to restructure the Corporation. Our plans for reorganization are being undertaken as a result of the severe economic environment in which we are operating and the competitive pressures we are facing. We must increase efficiency and achieve immediate and substantial reductions in operating expenses of $300 million annually. This, coupled with streamlining the organization, necessarily will result in the elimination of several thousand jobs within the [employer's] network."

Neither the August 8 memo nor the information packet for the program communicated the exact number of jobs that the employer wished to eliminate. Nor did they rule out involuntary layoffs in the event that the employer determined that further down-sizing was required or establish criteria for the selection of individuals to be separated if layoffs were necessary. Although no official announcements were made concerning layoffs, there were rumors that they were being planned and the news media reported both before and after the announcement of the buyout program that the employer would be eliminating thousands of jobs.

The voluntary separation program provided severance payment incentives based on the employee's years of service. Employees who had 10 to 19 years of service received two weeks of severance pay for each year, and employees who had 20 or more years of service received three weeks of severance pay for each year, up to a maximum of 104 weeks. In addition, a participating employee was provided with life insurance and COBRA medical insurance coverage at the employer's expense until one year after the separation date (September 21, 1990) or the date that the employee began new employment, whichever was earlier.

The August 8 memo also indicated that after the September 10 deadline for applying for the program severance benefits for staff reductions would be made in accordance with the employer's regular policy. Under the regular policy, employees with 10 to 12 years of service received only one week of severance pay for each year, and employees with 13 or more years of service received two weeks of severance pay for each year, up to a maximum of 52 weeks. Life insurance and COBRA medical insurance coverage was not provided to employees at the employer's expense under this policy.

Approximately 2,000 U.S.-based employees opted for the voluntary separation program, and another 170 employees were laid off after the September 10 deadline. Additionally, 1,500 to 2,000 employees overseas were separated from their employment.

The claimant was informed by her supervisor that the purpose of the buyout program was to avoid massive layoffs, which otherwise could be expected to occur at the end of the year. He also told her that a new computer system which was installed shortly before the buyout program was announced would cause his staff to be reduced since there was less work to be done. She was not given any assurance by the employer that her own job was secure.

The claimant was eligible for 20 weeks of severance pay, as well as the other progrm benefits described above. She weighed the uncertainty of her continued employment against the benefits she would receive and resigned under the buyout program effective September 21, 1990.

OPINION: The credible evidence establishes that the claimant's decision to accept the employer's voluntary separation package offer was compelled by a climate of uncertainty and her fear of losing her employment. This fear was not unreasonable in view of the content of the August 8 memo to the work force announcing the buyout offer. The memo unequivocally stated that "the severe economic environment" in which the employer was operating and "the competitive pressures" the employer was facing created the need for "immediate and substantial reductions in operating expenses of $300 million annually," and that this "necessarily will result in the elimination of several thousand jobs within the [employer's] network."

It is also significant in view of the reports in the news media regarding the employer's serious financial troubles and the anticipated large scale work force reduction, that the buyout program materials did not rule out layoffs in the event that further down-sizing was considered necessary by the employer or specify the criteria for selecting individuals to be laid off. This contributed to the climate of uncertainty and fear in which the participants in the buyout program decided to resign their jobs voluntarily rather than risk layoffs and loss of the enticing benefits being offered by the employer.

Subsequent to our May 19, 1993 decision in this case we refined our approach in connection with limited situations where claimants are compelled to particpate in voluntary severance or retirement incentive programs as a result of a climate of uncertainty and fear of losing one's employment. See Appeal Board 430,863 where we delineated various factors which led us to conclude that such claimants resigned their jobs with good cause. Briefly, in that case, as in the case now before us, the employer established a substantial down-sizing goal, did not rule out layoffs in the event such goals were unachieved, did not establish clear criteria for selection of individuals to be separated if layoffs were necesessary, and provided substantial incentives to participate in the work force reduction.

Having revisited the facts in this case, and applying the criteria detailed above, we now conclude that the claimant voluntarily left her employment with good cause.

We are aware of Matter of Fisher, 36 NY 2d 146, 1975 aff'g Appeal Board 181,289, but conclude that the case is clearly distinguishable. In Fisher the prospect of continued employment was not questionable because the claimant was covered by a collective bargaining agreement that contained a no-layoff provision (Ibid at p. 148). However, the claimant herein was not protected by such a union contract. Also, as the Court found in Fisher, the claimant could have recouped the offered increase in retirement benefits by continuing to work (Ibid at p. 153), but in the instant case the claimant would have received substantially less benefits if the claimant declined the buyout offer and was subsequently laid off.

DECISION: The decision of the Board dated May 19, 1993 (Appeal Board 409,398) is hereby rescinded.

The initial determination of the Commissioner of Labor is sustained.

The decision of the Administrative Law Judge is affirmed.

COMMENTS

    1. In this case the Appeal Board has explicitly recounted its criteria for finding good cause for voluntary participation in a severance or retirement incentive program. Each of these criteria must be present: an employer's express intention to reduce staff and to use involuntary separations if voluntary separations are too few; a lack of clear criteria for targeting layoffs; and a substantial incentive for voluntary participation.
    2. When one of these criteria is missing, it can not be shown that "uncertainty or fear of involuntary layoff" constitutes good cause for voluntarily leaving one's employment. If the claimant is not subject to being targeted for involuntary layoff, he does not have good cause for voluntarily electing severance (See Matter of Fisher, 36 NY 2d 146, Index 1705.2, A-750-1784). Where there is no evidence that the claimant's job was being eliminated, claimant does not have good cause to accept an incentive (AB 415,459A not reported).
    3. This rule replaces Index 1615.10, 1690.8 and 1705.5 (A-750-1983) which should be marked obsolete.

A-750-2075

Index 1690.9
1705.6

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

MAY 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY SEPARATION
Pension or retirement
Reduction-in-force situations

NO THREAT OF LAYOFF

Where claimant was not in danger of being involuntarily laid off or forced to retire, voluntary leaving of employment merely to obtain a financial incentive is without good cause.

AB 419,971

By initial determination of the local office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective December 23, 1991. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, of the employer and of the Commissioner of Labor. By decision dated July 13, 1992 the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor and the employer appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant voluntarily left employment with a telephone company under a retirement incentive plan for its unionized employees. The plan was offered for the purpose of reducing the employer's work force in light of mechanization projects and competitive pressures. The claimant's prospects of continued employment beyond December 31, 1991, the end of a two month period for electing to retire under the plan, were not in question. No threats of involuntary layoff were made to employees who were eligible for the plan. Indeed, such layoffs had never been instituted by the employer. Nor were these employees subject to a mandatory retirement age.

The retirement incentive consisted of (i) a 15% increase in the employee's monthly pension from date of retirement to age 62 and (ii) a guarantee that the employee would at no time have to pay a portion of the premiums for medical insurance coverage. Although the employer had never obtained the unions' agreement to having employees or retirees contribute to the cost of their medical benefits, the employer could seek to negotiate a change in this arrangement after 1995 except with respect to employees who accepted the retirement incentive offer. The most any management or non-unionized employer paid for medical benefits was $75 per month, which was for coverage for the employee and his or her spouse and children.

The claimant chose to opt for the retirement incentive offer and retired under the plan by the December 31, 1991 deadline. If the claimant had instead continued working for the employer, the claimant could have recouped the 15% increase in the pension.

OPINION: The credible evidence establishes that the claimant decided to retire in order to obtain a 15% increase in the claimant's monthly pension until age 62 and a guarantee of never having to contribute to the cost of the medical benefits. The evidence further establishes that the claimant was not in danger of being laid off or forced to retire, and the claimant could have recouped the value of the pension increase by continuing to work for the employer. Moreover, the claimant's desire to obtain the medical benefit guarantee was based on speculation that the employer might someday prevail upon the unions to agree to having employees and retirees contribute to the cost of their medical benefits. Since the unions had never made such a concession to the employer in the past and there is nothing in the record which suggests that the unions would change their position, the claimant's concern that this might happen in the future is not compelling.

This case is similar to Matter of Fisher, 36 NY 2d 146, 1975, aff'g Appeal Board 181,289, where the claimant opted for a retirement incentive when the prospect of continued employment was not in question. The Court concluded in Fisher that the claimant retired for non-compelling reasons, and thus without good cause for unemployment insurance purposes, because he could have recouped the offered increase in retirement benefits by continuing to work. As noted above, in the instant case the claimant could have likewise recouped the value of the pension increase, and therefore had no compelling reason for retiring.

The Administrative Law Judge's reliance on Appeal Board 351,375 is misplaced. That case is distinguishable because the employer therein was facing imminent extinction if a substantial reduction in force did not occur and the employer communicated this information to its employees in connection with the voluntary separation incentive offer.

In view of the foregoing, we hold that the claimant herein is disqualified from receiving benefits because of a voluntary leaving of employment without good cause.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. In this case, a retirement incentive plan was offered to unionized employees for the purpose of reducing the work force. Nevertheless, there were no threats of involuntary layoff; claimant could have continued to work.

 

    1. Although the employer offered a significant financial incentive in the form of an increase in pension and guarantee of medical benefits, there is no evidence that claimant could not have recouped these financial benefits through continued employment (See Matter of Fisher, 36 NY 2d 146 Index 1705.2, A-750-1784).

 

    1. In another case wherein the Appeal Board found claimant was not told her job would end, even a severance payment of $25,000 which would not otherwise have been available to the claimant does not justify voluntary separation (AB 455,520 not reported).

A-750-2076

Index 1590.1

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

AUGUST 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISREPRESENTATION and REDETERMINATION
Recovery of Overpayment

RECOVERY OF OVERPAYMENT

The Commissioner of Labor has the right to recoup outstanding prior overpayments by withholding and offsetting current benefits.

AB 444,503

By determination of the Commissioner of Labor, the claimant's benefit rate of $300 was reduced to $150, effective July 4, 1994, because of a 50% offset due to a prior overpayment. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated October 18, 1994 the Administrative Law Judge overruled the determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statements submitted.

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

FINDINGS OF FACT: The claimant filed an original claim for benefits effective February 22, 1993. By initial determination dated March 11, 1993, she was disqualified from receiving benefits because she left her employment without good cause. The claimant requested a hearing and, by decision dated June 11, 1993 (ALJ Case No. 093-17272), the initial determination was overruled. The employer in that case applied to reopen the decision and, by decision dated July 30, 1993 (ALJ Case No. 093-24170), the disqualification was reinstated. Pursuant to this decision, the claimant was charged with an overpayment of $5025, the amount of benefits she had received as a result of the first decision, and which amount has apparently not been disputed. The claimant appealed the latter decision to the Board.

During the pendency of claimant's appeal, she filed a new original claim for benefits effective July 4, 1994 and was held eligible to receive benefits at the weekly rate of $300. Thereafter, $150 was withheld from each benefit check as an offset for the outstanding overpayment.

OPINION: Section 597.4 of the Labor Law provides that, "Whenever a new determination...or a decision by a referee, the appeal board, or a court results in a decrease or denial of benefits previously allowed, the commissioner shall have a right of action for recovery of moneys paid pursuant to the prior determination or decision." The Court of Appeals, in Matter of Schwartfigure v. Hartnett, 82 NY 2d 296, ruled that, in addition to providing a statutory remedy to recoup previously overpaid funds, the 1983 amendment to this section "effectively restored the (Commissioner of Labor's) common law right of setoff to recoup those erroneously paid funds." Schwartfigure at p. 300. The Court then set aside the offset in that case because the policy had not been established in accordance with the State Administrative Procedures Act.

Subsequent thereto, and in compliance with SAPA, the Commissioner of Labor proposed and promulgated the rule codifying the setoff policy, effective April 7, 1994, to withhold 100% of current benefits for a prior overpayment received as a result of fraud or wilful misrepresentation and 50% if the overpayment was not obtained through fraud or wilful misrepresentation (12 NYCRR 470.5).

Given the plain and unlimited language of Section 597.4, and notwithstanding that the underlying issue may be on appeal to the Board, the Commissioner of Labor's policy to withhold 50% of the claimant's current benefits due to the outstanding overpayment is a reasonable exercise of the powers granted by Section 530 of the Labor Law to the Commissioner "to make all rules and regulations...as may be necessary in the administration of this article." Significantly, this policy allows for a recovery of public funds that were improperly received while still providing a certain degree of economic security to those individuals who are unemployed through no fault of their own. Accordingly, we conclude that the claimant is properly subject to the 50% setoff of her benefit rate.

DECISION: The determination of the Commissioner of Labor is sustained.

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. In this case the Appeal Board affirms the Commissioner of Labor's right to recover unrepaid overpayments by offsetting a claimant's current benefits.

 

    1. The Commissioner of Labor, having promulgated the rules necessary to codify the setoff policy, has the authority to withhold 50% of a claimant's current benefits, to recover the prior overpayment, where the overpayment was not obtained through fraud or wilful misrepresentation.

 

    1. The language of this decision also acknowledges the Commissioner of Labor's authority to withhold 100% of a claimant's current benefits to recover a prior overpayment received as a result of fraud or wilful misrepresentation.

 

    1. It should also be noted that an overpayment must be offset even if the underlying issue that gave rise to the overpayment is currently on appeal.

 


A-750-2077

Index 1127.2

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

AUGUST 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Appearance

FACIAL HAIR

Refusal to be clean shaven in accordance with the employer's policy is not misconduct if the employer fails to offer a compelling reason for having such an intrusive policy.

AB 460,731A

The Commissioner of Labor has applied to the Board, pursuant to Section 534 of the Labor Law, to reopen and reconsider its prior decision which was mailed and filed on February 23, 1996 (Appeal Board No. 436,948), which reversed the decision of the Administrative Law Judge filed January 25, 1994 (A.L.J. No. 093-47678), which sustained the initial determination by which the claimant was disqualified from receiving benefits because he lost his employment through misconduct in connection therewith, effective November 11, 1993.

Due deliberation having been had, the Board has determined to reopen and reconsider its prior decision. In connection with its review of the case, the Board considered the arguments made in the written statement submitted on behalf of the Commissioner of Labor in its application to reopen.

Now, based on all of the foregoing and on all of the proceedings heretofore had herein, the Board makes the following

FINDINGS OF FACT: The claimant worked at an indoor fun center for children for approximately one year until November 10, 1993. He was employed as a maintenance worker. The claimant had had a beard which he kept neatly trimmed since hire. The employer instituted a policy in October 1995 that employees were not to have beards. The claimant's supervisor told him on several occasions to shave his beard. The claimant did not do so. On November 10, 1993, the claimant was discharged for refusing to shave his beard. The employer could offer no reason for its ban on neatly trimmed beards.

OPINION: Upon reconsideration, the evidence establishes that the claimant was discharged because he refused to shave his beard, despite directions to do so and the employer's new policy that he was not to wear a beard. The Board, however, has consistently held that failure to comply with an unreasonable policy is not misconduct. While employer policies requiring employees to be "neatly groomed" are reasonable, a policy prohibiting facial hair or beards, is so intrusive, that the employer must present a compelling reason for having such a policy before we will disqualify a claimant from receiving benefits because he will not comply with an order to shave off the beard or facial hair. The employer has shown no reason, compelling or otherwise, for its policy. We, therefore, conclude that the claimant's failure to shave his beard in the absence of a compelling reason for demanding that he do so does not constitute misconduct. To the extent prior Board cases held that claimants could be disqualified for not complying with such a policy, in the absence of the employer proving a compelling reason for the existence of such policy, such cases will no longer be followed.

DECISION: The decision of the Board filed February 23, 1996 (AB 436,948), is hereby adhered to.

The initial determination of the local office is overruled.

The decision of the Administrative Law Judge is affirmed.

COMMENTS

    1. The Appeal Board is hereby explicitly reversing its prior precedent. The Board held that while employers have the authority to implement policies requiring employees to be neatly groomed, in order to justify an intrusive policy to require employees to shave off facial hair, a compelling reason for such policy must be presented.

 

    1. In the instant case, the employer instituted the new policy which was not a condition of hire when the claimant first began employment. The employer offered no compelling reason for this policy. However, where the employer has articulated a compelling reason for having such a policy, for example to ensure proper fitting of personal protective equipment like a dust mask or breathing apparatus, claimant's failure or refusal to adhere to the policy is misconduct.

 

    1. In another case (AB 458,483, not published) even where the employer's policy banning all facial hair was a condition of hire, the Appeal Board finds that refusal to comply with the policy is not misconduct when the employer fails to justify this intrusive policy.

 

    1. This principle should be narrowly interpreted to apply only to facial hair, and not to other employer policies on appearance such as dress codes.

 

    1. This rule therefore replaces the rule published as 1127.2, which is withdrawn.

 


A-750-2078

INDEX 2020.1

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

AUGUST 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
SECTION 599
Training facility, acceptability of

COMPETENT AND RELIABLE AGENCY

Training may not be approved under Section 599 unless it is offered by a competent and reliable agency, which itself is approved under specific regulations promulgated by the Commissioner of Labor.

AB 454,240

By initial determination of the local office dated June 26, 1995, the claimant was denied approval for vocational training under Section 599. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated September 1, 1995, the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant filed an original claim for benefits effective December, 1994, and was ruled eligible to receive benefits. She received information about making application for career and related training under Section 599 at the local office. In May 1995, the claimant learned that she would need computer training in order to seek employment for which her prior experience would otherwise qualify her. She inquired at the local office for a list of schools which provided computer skills training. Various state agencies approve courses offered by various schools. The local office policy is to make inquiry with these agencies after a claimant completes an application for Section 599 training which lists a particular school, course work and hours. The department does not know that courses are offered by the various schools prior to receiving and examining an application from claimants. Additionally, the State agencies change the list of approved schools each week. The claimant enrolled in a school which offered a computer training course beginning in June, 1995. The school informed the claimant that it had filed an application for a license from the New York State Education Department. After an investigation, the department discovered that the school had not been licensed. The claimant was therefore denied approval for Section 599 training.

OPINION: The credible evidence establishes that the claimant was denied approval for Section 599 training because the school at which she enrolled was not licensed by the New York State Department of Education nor any other State agency. Section 530 of the Labor Law authorizes the Commissioner to make all rules and regulations to administer the Unemployment Insurance Law. Section 599.1(c) provides that the Commissioner shall not approve career and related training unless "the training is offered by a competent and reliable agency." The Commissioner's regulation states as follows: "competent and reliable agency means an entity approved by the State Department of Education or other appropriate state agency (12 NYCRR 482.2(c)). The school selected by the claimant had still not been licensed as of the date of the hearing. The Commissioner's witness further testified credibly that the school owner informed him that she had never followed up on the application for approval. The Commissioner's regulation is reasonable in order to avoid dissipating limited training funds. Accordingly, we find that the claimant was properly denied approval for Section 599 training because the school in which she enrolled was not properly licensed.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. One statutory requirement for approval of training under Section 599 is that the course or training be offered by a competent and reliable agency. This decision affirms the principle stated in Field Memorandum 8-91, "Section 599 Regulations," as pertains to "competent and reliable agency."

 

    1. In this case the training facility was not approved by the Commissioner of Labor because it is not licensed and it had not pursued its application for approval.

 

    1. The Appeal Board affirms the reasonableness of the Commissioner of Labor's regulations, "in order to avoid dissipating limited training funds."

 

    1. Questions regarding whether an agency is "competent and reliable" should be referred through 599 liaisons or other appropriate designees in the Regional Directors' offices.

 


A-750-2079

Index 2060.4

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

AUGUST 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
SECTION 599
Additional Benefits

FAILURE TO REQUEST APPROVAL

A precondition to the receipt of additional benefits under Section 599.2 is approval of claimant's training program. Where claimant fails to request approval until all regular benefits are exhausted, no additional benefits can be paid.

AB 456,271

By initial determination of the local office, the claimant was denied approval for vocational training under Section 599.2, effective July 10, 1995. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated November 2, 1995 the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: Claimant received benefits for a full 26 weeks, with his last payment being received on July 7, 1995.

On or about September 5, 1994, claimant entered a nursing program to acquire an associate degree. Said program was scheduled to be completed by December of 1995. Claimant requested extended benefits on August 23, 1995, and was denied. The extended benefits were denied because claimant's regular benefits had expired prior to her request for extended benefits for the training program.

When claimant filed for her original benefits she intentionally replied "no" to the question asking, "Are you enrolled in school now?" Claimant replied in this manner because she believed that she could not attend school and collect benefits simultaneously.

Claimant received a booklet from the local office explaining the 599.2 program, but failed to read same until on or about August 23, 1995.

OPINION: The credible evidence establishes that the claimant did not apply for extended benefits until her regular benefits expired.

Section 599.2 provides in pertinent part that: "The duration of such additional benefits shall in no case exceed twice the number of effective days of regular benefits to which the claimant is entitled at the time the claimant is accepted in, or demonstrates application for appropriate training."

Therefore, claimant's additional benefits cannot exceed twice the number of effective days of regular benefits to which the claimant is entitled to at the time she is accepted.

First and foremost, claimant was never officially approved/accepted into the 599.2 training program. The local office did not approve or review claimant's training program, because claimant did not advise the local office of the training program until after her regular benefits were exhausted. However, even if claimant's training program was approved, claimant does not have any effective days of regular benefits remaining.

Claimant, further contends that she did not apply for the program earlier because she was not aware of it's existence. However, the local office did not inform the claimant of the program because when she filed her original claim she intentionally stated that she was not in school. Claimant filled out her original claim in this way because she believed she would not be entitled to benefits if she was in school.

Furthermore, claimant acknowledges receiving the booklet, which explained the 599.2 program, but failed to read it until August of 1995.

Therefore, based upon the foregoing, we do not agree with the Judge because section 599.2 does provide that a claimant must be approved for the 599.2 program while she still has regular benefits remaining, in order to be eligible for additional benefits. Accordingly, the Judge's decision should be reversed.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

1.     A training course or program cannot be approved by the Commissioner of Labor until the Commissioner of Labor is made aware of the training. Under no circumstances can claimant be found eligible for additional benefits under Section 599.2 when claimant's attendance in a training program was not disclosed and no request for approval had been made.

2.     In this case, claimant had no days of regular benefits remaining when her request for approval under Section 599.2 was made. Therefore, no additional benefits under Section 599.2 were payable.

3.     It should be noted that the subsequent revision of Regulation 482 effective January 26, 1996, explicitly articulates this condition for approval. Section 482.2(e) now reads:

"Demonstrates application for appropriate training means the date on which the claimant applies, in writing to the Commissioner requesting approval to participate in a training course in which the claimant has been accepted."

This definition changes the date claimant demonstrates application for appropriate training from the date the claimant applied to the school to the date the claimant applies to the local office. Operationally, this date will usually be the same as the calculation date. This regulation was obsoleted October 1996

In determining the amount of additional benefits to which the claimant is entitled, the earliest calculation date that can be used is the date the Commissioner (local office) is advised of and subsequently approves such training. Therefore, prior references to determining the calculation date referred to in Field Memorandum 2-95 should be marked obsolete and should no longer be followed.

4.     A more recent Appeal Board decision (AB 462,207, 7/9/96, not reported) made subsequent to the revision of applicable Rules and Regulations, Section 482.2(e), reaffirmed this principle.

 


A-750-2080

Index No. 1010.11

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

October 1996

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
HEARINGS AND APPEALS
Timeliness

INCARCERATED CLAIMANT

Claimant’s failure to request a hearing within 30 days of the initial determination is not excused by claimant’s incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request.

AB 455,169

By initial determinations of the local office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause effective October 30, 1993; charged with a recoverable overpayment of $508 in benefits and a $58 recoverable overpayment based upon a previous claim and determination; and claimant’s right to future benefits was reduced by eight effective days because claimant wilfully made a false statement. The claimant requested a hearing. The Commissioner of Labor interposed a preliminary objection that the hearing request was not made within the statutory period.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard. There was an appearance on behalf of the employer. The claimant was not present. By default decision dated August 15, 1995 (A.L.J. Case No. 095-24566) the Administrative Law Judge sustained the initial determinations.

The claimant applied to reopen and reconsider the decision of the Administrative Law Judge filed August 15, 1995. Upon due notice to all parties a further hearing was held at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and the employer. By decision dated October 4, 1995 the Administrative Law Judge granted the claimant’s application to reopen A.L.J. Case No. 095-24566; overruled the Commissioner of Labor’s timeliness objection; overruled the initial determinations regarding a voluntary leaving of employment without good cause, recoverable overpayment of $506 in benefits and a wilful false statement; and sustained the initial determination of a $58 overpayment.

The employer appealed the judge’s decision to the Board. In connection with its review of the case, the Board has considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant was employed as a cook at the employer’s snack bar. An initial determination disqualifying the claimant because of a voluntary leaving of employment without good cause was mailed to the claimant’s home on March 31, 1994. The claimant was incarcerated at that time. The initial determination was received by the claimant’s mother shortly after March 31, 1994. The claimant’s mother read the initial determination to the claimant over the telephone shortly after receiving it. The claimant disagreed with the initial determination but did not request a hearing at that time. The claimant remained incarcerated until November 3, 1994. On December 5, 1994 the claimant mailed a letter to the Board requesting a hearing. The claimant is not nor was not physically or mentally incapacitated at any time relevant herein.

OPINION: The credible evidence establishes that the claimant’s request for a hearing is untimely. The initial determination of the local office was mailed to the claimant on March 31,1994. Claimant received notice thereof shortly thereafter, when his mother read the determination to him over the telephone. He appealed that determination by written notice mailed on December 5, 1994.

Section 620.10(a) of the Labor Law prescribes, 9in relevant part, the right to request a hearing as follows:

A claimant who is dissatisfied with an initial determination of his claim for benefits may, within 30 days after the mailing or personal delivery of the notice of such determination, request a hearing. The referee may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within 30 days of the initial determination.

Labor Law Section 620.1(a) does not extend the time for requesting a hearing in this matter as the claimant was not physically or mentally incapable of filing a request for a hearing. Since the claimant’s hearing request was not filed within the 30 day statutory period, the claimant’s hearing request was untimely.

DECISION: The Commissioner of Labor’s timeliness objection is sustained.

The initial determinations of the local office are continued in effect.

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

COMMENTS

    1. It is noteworthy that in this case claimant conceded receipt of the determination at his home address, and conceded that he was aware of the determination promptly by his mother. Claimant is not excused from the requirement to make a hearing request within 30 days merely because he was incarcerated.
    2. The Appeal Board has long held that neither incapacity to work, nor unavailability to work constitute sufficient conditions for excusing an untimely protest of an initial determination. The language of the law is explicit that an extension of the 30 day limit can only be based on a "physical condition or mental incapacity" that prevents claimant from making a hearing request.

 



A-750-2081

Index 940.1

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

OCTOBER 1996

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Shared Work
Corporate Officer/Shared Work Program

CORPORATE OFFICER/SHARED WORK PROGRAM

Corporate principals are not eligible to receive benefits pursuant to the Shared Work Program.

AB 431,477

By initial determination of the local office, the claimant was ruled ineligible to receive benefits effective July 27, 1992, because he did not meet the eligibility requirements of the Shared Work Program pursuant to Section 604 of the Labor Law. The claimant requested a hearing.

The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the Commissioner of Labor. By decision dated July 8, 1993 the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the Judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statements submitted.

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

FINDINGS OF FACT: The claimant is the president and sole shareholder of a corporation which manufactures air-conditioning and heating equipment. It employs about 80 people. After experiencing a downturn in business, the employer applied for and was approved for participation in the Department of Labor's Shared Work Program. Thereafter the claimant closed the business each Friday, and along with the rest of the employees took a 20% reduction in salary. Although the company offices were closed on those Fridays, the claimant retained access to them and could have worked for the business if he chose to.

OPINION: The Shared Work Program (Sections 602-611 of the Labor Law) was enacted so that unemployment insurance benefits could be paid to workers who have had their hours and pay reduced pursuant to plans in which the employer, otherwise faced with layoffs, spreads the available work by reducing the number of regularly scheduled hours for all employees. Part of the statutory plan allows claimants to lack total unemployment for the shared work employer. However, the Commissioner of Labor contends that the program should not be interpreted so as to cover corporate officers and/or major shareholders. The statute contains no reference as to whether claimants who are corporate principals are to be accorded its benefits. Section 604 of the Labor Law lists the eligibility conditions for the program and provides in pertinent part, "A claimant shall be eligible for benefits under this title if he works less than his normal full time hours in a week for his customary employer, and that employer has reduced or restricted the claimant's weekly hours of work...". We conclude that the statute contemplates an employer who stands separate and apart from the claimant whose hours are being reduced. This claimant, as the corporate president and the sole shareholder, does not stand in such a relation to the employer.

Furthermore, we agree with the Commissioner that the situation presented herein is analogous to that in a long line of cases dealing with the eligibility of corporate officers to collect regular unemployment benefits. The Court and the Board have consistently held that when it is within the power of the persons who control a corporate business to determine the extent of their involvement in the business and the compensation they receive, then the eligibility of such persons for unemployment benefits becomes suspect (Matter of Hirsch, 29 AD 2d 702; Appeal Board 363583, Appeal Board 393843). We conclude that corporate officers who apply for benefits under the shared work program should be subject to the same scrutiny.

In cases concerning corporate principals who claim benefits, it has also been held that such a person who stands to gain financially from the continued operation of his business is not totally unemployed regardless of his actual activity during a period when he is claiming benefits (Matter of DeVivo, 51 AD 2d 619); Appeal Board 404196, Appeal Board 404358). Again, we conclude that it is appropriate to apply the same standard to corporate principals in shared work cases.

Accordingly, we agree with the Commissioner that corporate principals should not be deemed eligible to receive benefits pursuant to the Shared Work Program. It is obvious that the claimant could control the extent of his involvement in the business as well as the level of his compensation, and clearly stood to gain from its continued operation. In addition, that the claimant took the same 20% reduction in pay and hours as the rest of the employees, does not persuade us otherwise, as he could eventually choose to reimburse himself after the termination of his company's participation in the Shared Work Program. We perceive no compelling reason to interpret the statutes so as to allow benefits in situations where corporate principals would not be eligible to receive regular unemployment insurance benefits. In fact, we believe that the statute should not be interpreted in a way which would encourage corporate principals to refrain from the business of the corporation and thus hinder the ability of the business to recover from the circumstances which led to participation in the program in the first instance. Under all of these circumstances, we conclude that the claimant did not meet the eligibility requirements of the shared work program.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

2. The Court had long since held that a corporate principal who stands to gain financially from the continued operation of the businesses is ineligible for regular benefits during off-seasons, temporary idle periods, or times of minimal activities because of a lack of total unemployment. This principle applies to corporate principals who claim shared work benefits under Sections 602-611 of the Unemployment Insurance Law.

3. In this case, and in another separate decision in a similar matter, the Board explicitly acknowledges that it would be "incongruous to...encourage corporate principals to refrain from the business of the corporation, thus hindering the ability of the business to recover from the circumstances which led to its participation in the Shared Work Program in the first instance" (AB 413,448, not reported).


A-750-2082

Index No. 915A.10

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

January 1997

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Reduction due to pension
Pension or retirement payment

CONTRIBUTIONS BY THE EMPLOYER

A claimant is subject to a benefit rate reduction as a result of a pension payment made from a union pension plan where union members voted to determine what amount out of the base pay package is contributed to the pension plan, since the contributions were made by the employer.

AB 454,956A

The Commissioner of Labor has applied to the Board, pursuant to Section 534 of the Labor Law, to reopen and reconsider its prior decision which was mailed and filed on March 23,1995 (Appeal Board No. 447389), which reversed the decision of the Administrative Law Judge filed January 25,1995 (A.L.J. No. 394-11642), which sustained the initial determination by which the claimant’s benefit rate was reduced from $300 to $165 per week, effective November 14, 1994, because of his receipt of pension, pursuant to Section 600.7 of the Labor Law.

Due deliberation having been had, the Board has determined to reopen and reconsider its prior decision. In connection with its review of the case, the Board considered the arguments made in the written statement submitted on behalf of the Commissioner of Labor in its application to reopen.

Now, based on all of the foregoing and on all of the proceedings heretofore had herein, the Board makes the following

FINDINGS OF FACT: The claimant worked as a carpenter for thirty-one years. He was a member of a union. The union negotiated a base pay package covering wages and benefits for its members with the employers’ association in the area. It was agreed that a set amount of money would be available on an hourly basis for this package of wages and benefits for each employee.

From this amount, the union members voted on how much to receive as wages and how much was to be contributed by the employer to various benefit plans, including the pension plan. Once the amount to be contributed to the pension plan was decided, the employers made the contributions directly to the union which operated the pension plan. The amounts paid into the pension plan were not treated as wages and so employees were not subject to withholding taxes on the amounts contributed to the pension plan.

The claimant filed an original claim for benefits effective January 3, 1994. As of June 1994, the claimant began a pension of $586 per month from his union pension fund. The claimant’s employment in his base period of January 4, 1993 through January 2, 1994 increased the amount of his pension. The claimant filed an additional claim for benefits effective November 14, 1994. The pro-rated weekly amount of claimant’s pension was $135.

OPINION: Upon reconsideration, the evidence establishes that union members, including claimant do not negotiate and receive a total hourly wage from which contributions to various benefit plans are then made, rather, union members negotiate a base pay package. The membership then votes on how much of the package will be received as wages and how much will be contributed by the employer to various plans, including the pension plan. When the amounts are settled upon the membership, the contributions to the pension plan are then made by the employers out of their own funds, not from employees wages. We note that contributions to the pension plan are not treated as wages for tax purposes. We further note that claimant and other individual members of the union never have direct control over these funds, having only a right to vote, as part of the membership, on how the package should be divided. Accordingly, we conclude that the claimant’s pension plan is funded 100% by employer contributions. (See AB 328368A, December 17, 1981; AB 348855, October 9, 1994). Accordingly, as the claimant’s base period employment increased the amount of benefits he was entitled to from the pension plan, and we conclude that the employers were the sole contributors to such fund, Section 600.7 of the Labor Law requires that the claimant’s benefit rate be reduced by 100% of the pro-rated weekly amount of that pension. Accordingly, we conclude that the claimant’s benefit rate of $300 was properly reduced by $135 to $165 per week.

DECISION: The decision of the Board filed March 23,1995 (AB 447389), is hereby rescinded.

The initial determination of the local office is sustained.

The decision of the administrative law judge is affirmed.

COMMENT

The amounts paid into the pension plan were determined by union membership vote, but the contributions were made directly by the employer to the union which operated the pension plan. The payments into the pension plan were not taxed as wages.

 



A-750-2083

Index 915B

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

JANUARY 1997

INTERPRETATION SERVICE - BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Reduction due to pension
Amount of reduction

CORRECTION

A pension based upon military service not in the base period does not result in a pension reduction, even when claimant's Federal civilian employment in the base period does result in a pension reduction due to receipt of a civilian pension.

COMMENTS

    1. The prior Index entry at 915B 4 is not in compliance with Section 600.7 of the Unemployment Insurance Law. That entry is deleted, and a replacement entry has been substituted.
    2. Procedure III 21117B does reflect the effect of the statutory revision made in 1983, which made obsolete this former method of calculation of a pension reduction for Federal pensions.

 



A-750-2084

Index 950.1

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

FEBRUARY 1997

INTERPRETATION SERVICE - BENEFIT CLAIMS
DETERMINATION OF BENEFITS
SEAP

SEAP - Self Employment Assistance Program

Applicants for enrollment in the Self Employment Program must be eligible for regular unemployment insurance benefits.

AB 452,496

By initial determination of the local office, the claimant was held ineligible to receive benefits because claimant was not totally unemployed effective May 1, 1995. By further determination dated May 9, 1995, he was held ineligible to participate in the Self Employment Assistance Program. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to he heard and at which testimony was taken. There was an appearance by the claimant. By decision dated July 6, 1995 the Administrative Law Judge sustained the initial determinations.

The claimant appealed the judge's decision to the Board.

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

FINDINGS OF FACT: The claimant has a lengthy history of employment as a real estate appraiser with a state agency. While so employed, he incorporated a business in which he was to work independently as an appraiser and property tax consultant in March 1993. Although the claimant purchased a listing in the yellow pages, invested approximately $10,000 in the venture and appointed himself president, the business remained largely dormant until March of 1995. At that time, the claimant learned that he would soon be laid off from his state job. As a result, he initiated plans to reactivate his corporate venture. In anticipation of his lay-off on April 28, 1995, he last worked for the state on April 10, 1995 and thereafter used accrual leave time to devote his full efforts to reactivating his business. During the month of April, he purchased a computer and printer for the enterprise, secured assessment files for his tax consultancy and performed his first appraisal. He subsequently worked in the business approximately 6 days a week, eventually securing some 50 clients. The claimant filed his claim for benefits effective May 1, 1995 and thereafter applied for participation in the Self Employment Assistance Program (SEAP). Through the date of the hearing herein, he has continued to operate his business on a regular, full time basis.

OPINION: The credible evidence establishes that, at the time the claimant filed for benefits and thereafter, he was actively engaged in the full-time operation of his own business venture. We conclude that the claimant was not totally unemployed during the period in issue, and not eligible for benefits. We note whether claimant generated a profit in operating his business is not dispositive of the issue whether he was totally unemployed, since he stood to gain financially from his activities (Matter of Witham, 134 AD 2d 752 and Matter of Devivo, 51 AD 2d 619).

Furthermore, pursuant to the requirements for enrollment in the Self Employment Assistance Program, applicants must be eligible for and receiving regular unemployment insurance benefits. Since by virtue of his lack of total unemployment, the instant claimant was not eligible for benefits when he applied for enrollment in SEAP, he was properly denied participation in that program.

DECISION: The initial determination of the local office is sustained. The decision of the Administrative Law Judge is affirmed.

COMMENT

In order to be eligible to participate in SEAP, claimant's eligibility for regular unemployment insurance benefits must be certain. In this case, claimant was ineligible for benefits as of the effective date of the claim, because he already had an established, active business and therefore lacked total unemployment.

 



A-750-2085

Index 755 C.6

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

MARCH 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY
Restrictions of Employment
Arrangement of Full Time Hours

Religious Observance

Claimant cannot be denied full benefits because of a lack of availability to work on a specific day of the week due to religious observance.

AB 459,582

By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions effective December 25, 1995. The employer requested a hearing contending that the claimant should be held ineligible to receive benefits because the claimant was not available for employment.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated February 20, 1996 the Administrative Law Judge sustained, effective December 25, 1995 through February 20, 1996, the employer's objection for one effective day per week, and as so modified, sustained the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

FINDING OF FACT: The claimant began employment, and is still employed, in a bagel shop starting in August, 1995. The claimant was initially hired as a full-time employee to work Monday through Friday, from 5:45 a.m. to 2:00 p.m. At hire, she informed her employer that she would be unable to work on Saturdays due to her religious beliefs, and that she preferred not to work on Sundays. Due to a medical problem in October 1995, the claimant requested to work only three days a week. The employer permitted the claimant to switch her hours with her sister, a co-worker, to Tuesday, Wednesday and Friday, from 7:00 a.m. to 2:30 p.m. Shortly after the claimant began working three days a week, she informed her employer that she would need some Wednesdays off for doctor appointment.

In late November, the employer began scheduling the claimant for one or two days a week, instead of three, because it had hired another person to accommodate the claimant's scheduling requests. In early December, the claimant asked her employer to give her more hours. The claimant assured her employer that she would give them three weeks advance notice of any future doctor appointments, so that she would be available on any day, including Sundays, with the exception of Saturdays. The employer has been unable to accommodate the claimant's request for more hours because of its hiring of another person to accommodate the claimant's scheduling requests. Therefore the claimant has only been working on Tuesdays.

OPINION: The credible evidence establishes that the claimant is available for work six days a week, except Saturdays when she is not available due to religious obligations. The Board has held that, in the absence of any compelling State interest justifying the infringement of religious liberties, the State cannot deny Unemployment Insurance benefits because of conduct mandated by religious beliefs (AB 452,775). Accordingly we find that the claimant cannot be denied Unemployment Insurance benefits because of her lack of availability on Saturdays due to religious observances.

Additionally, under Section 161 of the Labor Law, the claimant is entitled to at least 24 consecutive hours of rest in the calendar week. The claimant has indicated that she is now available six days a week. Therefore, claimant would not be required to work more than six days per week for the employer, even if the employer had work for the claimant in excess of six days per week. Accordingly, we find that the claimant is available for employment six days a week, with the exception of Saturday.

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

The employer's objection is overruled.

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. Refraining from work on a specific day of the week due to religious beliefs does not make the claimant ineligible for benefits for one effective day per week. The Labor Law requires that every worker be allowed at least twenty-four consecutive hours of rest in any calendar week.
    2. Requiring that a claimant be willing to work on any day that an employer may have work would be an infringement on claimant's exercise of religious liberties.
    3. See also A-750-2017, regarding Refusal of Employment.

 



A-750-2086

Index 1620.6
1137.6

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

MARCH, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Conscience

MISCONDUCT
Civil Rights

Religious Beliefs and Separation from Work

Refusal to attend work or to perform tasks which would violate one's religious beliefs is not disqualifying.

AB 452,775

By initial determination of the local office, the claimant was held eligible to receive benefits without any disqualifying conditions by initial determination dated June 2, 1995. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a voluntary leaving of employment without good cause.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated July 18, 1995 the Administrative Law Judge overruled the initial determination and sustained, effective April 23, 1995, the employer's objection to claimant's entitlement.

The claimant appealed the judge's decision to the Board.

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

FINDINGS OF FACT: The claimant worked as a waitress for the employer from November 1994 through April 22, 1995. When the claimant was hired she told the employer that she did not celebrate holidays because of her religious beliefs as a Jehovah's Witness. The employer accommodated her restrictions. For instance, she was not required to wear festive hats on New Year's Eve as was other staff. On her last day at work, claimant saw a cake with happy birthday written on it in the employer's kitchen. She quickly informed the employer that she could not serve such a cake as her religious beliefs prohibited her from participating in birthday celebrations. She suggested to her employer that another server handle the party group or at least the serving of the cake. While the employer served the cake that evening for claimant, the employer could not accommodate claimant's religious beliefs on this matter in the future. The restaurant was small and operated at times with claimant as the only server and the employer was not always available to help out. The employer had other birthday parties scheduled and claimant was on notice that she would have to be prepared to serve these customers. Claimant told the employer she would have to quit. She finished her shift and left her employment.

OPINION: The credible evidence establishes that the claimant voluntarily left her employment because the employer could not relieve her from having to serve birthday cakes to customers, which act would violate her religious beliefs. The claimant took reasonable steps to protect her employment by suggesting alternative arrangements to the employer but due to the employer's size the employer, acting in good faith, could not reasonably accommodate claimant's religious beliefs. In the absence of any compelling State interest justifying the infringement of religious liberties, the State cannot deny unemployment insurance benefits because of conduct mandated by religious belief. Accordingly, we conclude that the claimant voluntarily left her job with good cause.

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

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. Claimant in this case had advised the employer at the time of hire of her religious beliefs. Based on her beliefs, she would not perform specific tasks. When the employer advised her that it would no longer accommodate her restrictions, claimant quit her job with good cause.
    2. In another case (AB 433,355, not published) claimant's continued refusal to work on Sundays because of his religious beliefs is not misconduct. Claimant need not document membership in an established religious sect to demonstrate a sincerely held religious belief.
    3. See also A750-2017, regarding Refusal of Employment

 



A-750-2088

Index 1185.14

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

JULY 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Violation of Company Rule

SALE OF ALCOHOL -UNDERAGE CUSTOMER

Failure to follow the employer's procedures to establish the age of a customer attempting to buy an alcoholic beverage is misconduct.

AB 454,907

By initial determination of the local office, the claimant was disqualified from receiving benefits, effective July 8, 1995 because of a loss of employment through misconduct in connection therewith. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision filed September 18,1995 (A.L.J. 195-07684), the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the Judge's decision to the Appeal Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant, a sales clerk, worked for a convenience store for approximately two years, until July 7, 1995. He worked full time and earned $5.85 per hour. Part of claimant's duties included selling the employer's merchandise to the employer's customers. On at least two occasions in 1993 claimant was specifically advised, in writing, that the sale of alcohol to individuals under 21 years old was prohibited. He was further advised that the law and the employer required that proof of age was required before the sale could be made. Claimant was advised what forms of identification were acceptable and that absent such acceptable proof, no sale should be made. The policy further provided that the sale to an underage individual would result in immediate suspension or termination from employment.

In 1994, the employer conducted an internal test to ascertain whether its rules were being complied with. An underage individual was sent to claimant's store and attempted to buy an alcoholic beverage. Claimant accepted the bottle from the individual and began wrapping it for sale without asking for any identification. A coworker then intervened and asked for identification. Claimant received a warning for this incident.

On June 28, 1995, the employer conducted another internal test. An 18 year old individual was sent into the store in which claimant was working. The claimant sold the individual an alcoholic beverage without asking for any identification. Claimant was discharged on July 7, 1995, for his violation of the employer's rule requiring identification and for his sale to an underage individual.

OPINION: The credible evidence establishes that claimant sold an alcoholic beverage to an 18 year old individual on June 28, 1995, without asking for identification, in violation of the prohibition of such sales. Claimant's failure to take the mandatory precautions, of which he was fully aware, clearly rises to the level of misconduct. Moreover, we note that claimant had previously received a warning regarding this issue. Accordingly, we conclude that claimant's failure to follow appropriate procedures to establish the age of the customer constitutes act of misconduct. He is, therefore, subject to the disqualification imposed.

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

The decision of the Administrative law Judge is reversed.

COMMENTS

    1. The sale of an alcoholic beverage to an underage customer is an illegal act. Because of this, and the resultant liabilities for legal penalties, all salespeople handling such transactions can reasonably be required to follow their employer's control procedures carefully and diligently. Failure to follow such procedures can foreseeably result in a violation of law. Penalties for violation of the law include fines for both the business and the salesperson, and the loss of the license to sell alcohol.
    2. It should be noted that while the New York State Liquor Authority (SLA) does penalize both the business and the sales employee for an improper sale of alcohol, the SLA does not define specific procedures for vendors to follow. It is up to the store (the employer) to establish and enforce procedures to be followed.
    3. In this case, the employer had established specific guidelines to be followed to safeguard against sale of beer to underage customers. Claimant knew, and failed to follow, employer's rules.
    4. The same principles are equally applicable to the sale of tobacco/tobacco products.

 



A-750-2089

Index 1645 B.1

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

July, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After a Delay

Intent to Relocate With Spouse

Claimant must show a compelling reason for the spouse's relocating, for a voluntary quit to follow the spouse to be with good cause. In addition, claimant must have formed an intent to relocate with the spouse at the point of the spouse's departure.

Matter of Howe, 188 AD 2d 982, decided December 31, 1992

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 4, 1991, which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

Claimant admitted that when his family first moved from New York City to Florida in August, 1990, he intended to visit them regularly once or twice each month. He also stated that the family moved there because of Florida's "warm climate" and due to New York City's "rising violence". It was only when his request for a leave of absence to help with the relocation was denied that he resigned from his employment in December 1990. Claimant could have stayed in New York and continued working for his employer. Under the circumstances, there was substantial evidence to support the conclusion by the Unemployment Insurance Appeal Board that there was no compelling reason for claimant's relocation to Florida, that it was a matter of personal preference and that there was also no compelling reason for the leave of absence (see, Matter of Ludwig [ Levine], 52 AD 2d 709; Matter of Rakossy [Levine], 50 AD 2d 659; Matter of Jensen [Levine], 49 AD 2d 794). The Board noted that claimant had originally intended to keep his job in New York and that there was no change in his family's situation in Florida since their relocation there without him which would compel him to make an extended visit to Florida.

Mikoll, J.P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur.

ORDERED that the decision is affirmed, without costs.

COMMENT

In repeated references to this case in later decisions, the Appeal Board identified these principles as centrally important: claimant's spouse must have had a compelling reason for relocating and claimant must have formed an intent to relocate with the spouse.


A-750-2090

Index 1645 B.2

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

July, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After a Delay

Evaluating a Temporary Delay

Claimant may have good cause to quit employment, to rejoin a spouse who had relocated for good cause at an earlier time, if the temporary delay in following the spouse was due to a compelling reason, and was limited to a reasonable length of time. Claimant must act responsibly and diligently to resolve the causes of the delay.

AB 467,740

By initial determination of the Out-of-State Resident Office, the claimant, a former Federal employee filing under Chapter 85, Title 5 of the U.S. Code, was disqualified from receiving benefits, effective June 29, 1996, because of a voluntary leaving of employment without good cause. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision filed October 17, 1996 (A.L.J. Case No.096-32195), the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the Judge's decision to the Appeal Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDING OF FACT: The claimant was employed as an engineer by a federal agency for two years, until June 28, 1996. In October 1995, her husband went to Puerto Rico to undertake the management of a retail electronics business that he co-owned with his brother. Since her husband's long term plans were not then settled, the claimant kept her job in New York and continued residing there with her children. After visiting each other on a number of occasions during the months that followed, the claimant's spouse decided in December 1995 to reside permanently in Puerto Rico and the claimant determined to relocate there to reunite their family. She placed their New York home on the market and notified her employer that she would be leaving her employment as soon as she sold her home and her eldest child finished his first year of school. When the claimant had not secured a buyer for her house by May 1996, she arranged to rent the dwelling instead. Following the end of the school year, the claimant resigned from her job and relocated with her children on July 6, 1996.

OPINION: The credible evidence establishes that the claimant quit her job to follow her husband to another locality. The Board has long held that a claimant may establish good cause for leaving employment to follow a spouse to another locality, if the spouse had good cause to relocate in the first instance. More specifically, we have ruled that a spouse's relocation to undertake employment provides good cause, under the law, for a claimant to quit employment to follow (see Appeal Board 382,135; 383,990 and 394,536). In the case now under review, it is uncontested that the claimant's husband relocated to Puerto Rico to undertake the management of a business in which he had a substantial financial interest.

The Commissioner of Labor contends that, while the claimant may have had good cause to quit her job to follow her husband at the time he relocated, or shortly thereafter, she did not do so; but decided, for personal reasons, to keep her job and live apart from her spouse for months after his relocation. Having chosen to live apart, the Commissioner argues, the claimant should be denied benefits, absent a showing of some significant intervening change in her circumstances which would provide good cause for her to abandon her job and her separate living arrangement, to reunite with her spouse.

In support of its position, the Commissioner cites Matter of Howe (188 A.D. 2d 982, aff'g A.B. 403,319). In that case, the Court held that a claimant who decided to retain his employment in New York and live apart from his wife and children, after they relocated to Florida for reasons of personal preference, did not have good cause to quit his job to move with them or to follow them later. The Court reasoned that when the claimant relocated four months after his spouse, because his employer denied him an extended leave of absence to visit his family over the Christmas and New Year holidays, there had been no significant intervening change in their circumstances to warrant relocation. The Commissioner also cites numerous Board rulings issued since Howe which support the proposition now advanced by the Department of Labor.

Upon a careful consideration of the facts and issues under review, and upon reexamination of our recent past rulings, the Board concluded that the facts in Howe (supra) are distinguishable from those in the case now before us. In the first place, the spouse in the Howe case relocated for a patently noncompelling reason, whereas the spouse in the case now before us moved for employment purposes which, as noted have long been deemed good cause. Secondly, whereas claimant Howe originally intended to live apart from his family indefinitely, if not permanently, at the point at which the instant claimant's spouse determined to reside permanently in Puerto Rico, the claimant decided merely to postpone following him for a temporary, if indeterminate, period of time, to be measured by the occurrence of specific events; namely, the marketing of her New York home and the completion of her child's school year.

Notwithstanding past Board rulings to the contrary, to which we no longer adhere, we now reason that a claimant who delays in fulfilling his intent to leave his employment to follow a spouse who has relocated for good cause shown, should not be precluded from benefits by virtue of the delay alone, provided it is established that the claimant's delay was for a compelling reason and for a reasonable length of time, under the circumstances. To meet this standard, it must be demonstrated that the claimant acted reasonably and diligently to resolve the cause of his delay, to the extent that it was in his power to do so.

Furthermore, we conclude that a conscientious effort to expeditiously market and sell a primary residence constitutes good cause for a claimant to wait to follow a relocated spouse, in recognition of the fact that a home is often a family's most significant financial asset. We believe that any policy tending to discourage a claimant from acting responsibly to preserve the value of such an important asset, is against the public interest. Likewise, we feel that the potential harm to a claimant's child, arising from being displaced in the middle of a school year, is sufficiently demonstrable to justify delaying relocation until summer recess. This is particularly so, in view of the differences in academic curricula from state to state.

Therefore, we find that the claimant had good cause to follow her spouse to a different locality in the first instance, given his employment obligations there; and had good cause to delay in following thereafter, until her child finished the school year, by which time she had arranged for the rental of her New York dwelling. Accordingly, her employment ended under nondisqualifying conditions.

DECISION: The initial determination of the Out-of-State Resident Office is overruled.

The decision of the Administrative Law Judge is affirmed.

COMMENTS

    1. In this and further decisions on this topic, the Appeal Board identified two critical factors as determinative of the considerations of "good cause": claimant's delay must be for a compelling reason and must be limited to the shortest reasonable time.
    2. Although claimant's husband first went to Puerto Rico in October, he decided in December to relocate permanently. Claimant formed her intent in December.
    3. In this case, the Appeal Board identifies two causes for this claimant's delay in relocating, and evaluates both against the criteria discussed above. Claimant tried to sell the family home, and she waited for her children to finish their school year. Both causes for claimant's delay were identified as compelling; both were limited to a reasonable length of time.
    4. Rulings on a variety of specific causes for such delays are further discussed in subsequent A750's.

 



A-750-2091

Index 1645 B.3

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

July, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After a Delay

Efforts To Sell a Primary Residence

When claimant intends to follow a spouse who relocated for good cause to another locality, a temporary delay due to efforts to sell a primary residence is not disqualifying, provided these efforts are conscientious and expeditious.

A.B. 469,653

By initial determination of the local office, the claimant was disqualified from receiving benefits, effective November 1, 1996, because of a voluntary leaving of employment without good cause. The claimant requested a hearing.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision filed January 2, 1997 (A.L.J. Case No 396-11786), the Administrative Law Judge overruled the initial determination.

The employer appealed the Judge's decision to the Appeal Board. In connection with its review of the case, the Board considered the arguments contained in the written statements submitted.

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

FINDINGS OF FACT: The claimant worked as a sales assistant for a corporate employer for nine years, until October 31, 1996. In May 1996, her husband undertook employment in Georgia. At that time, the claimant decided not to quit her job in New York to move with her spouse, because she wanted to oversee the sale of their home before relocating. One week before her husband's departure, they placed their home on the market and secured the services of a professional realtor. At that time, the claimant notified her employer that she would be leaving her job as soon as the house was sold. After securing a buyer some months later, she quit her job, packed her belongings and moved on November 15, 1996, the date on which she finalized the transfer of her house.

OPINION: The credible evidence establishes that the claimant quit her job to follow her spouse to another locality, some six months after his relocation. The Board has previously held that a claimant has good cause to leave their employment to move with their spouse to another locality, if the spouse relocates to undertake employment (Appeal Board 382,135; 383,990 and 394,536). In the instant case, it is uncontested that the claimant's husband moved to Georgia solely in order to begin working there.

The Commissioner of Labor contends that, while the claimant might have had good cause to quit her job to follow her husband at the time he relocated, or shortly thereafter, she did not do so; but decided, for personal reasons, to keep her job and live apart from her spouse for months after his relocation. Having chosen to live apart, the Commissioner argues, the claimant should be denied benefits, absent a showing of some significant intervening change in circumstances which would provide her with good cause to abandon her job and her separate living arrangement, to reunite with her spouse.

The Commissioner cites the ruling of the Court in Matter of Howe (188 A.D. 2d 982, aff'g A.B. 409,319) in support of its arguments. In that case, the Court held that a claimant who decided to retain his employment in New York and live apart from his wife and children, after their relocation to Florida, did not have good cause to quit his job to follow them four months later, because there had been no material change in their circumstances, in the interim. The Board has recently reexamined its application of the rule of law enunciated in Howe and has concluded that it should apply only to claimant who, at the departure of their spouse, decided to live apart indefinitely, if not permanently. The rule should not preclude from benefits a claimant who forms an intent to follow their spouse at the point of his departure, but temporarily delays in fulfilling that intent, provided the delay is for a compelling reason and for a reasonable length of time (Appeal Board 467,740 and 468,058).

In the case now before the Board, the record establishes that the claimant formed an intent to follow her husband to Georgia at the time of his relocation, but delayed in acting on that intent in order to market and sell their New York residence. We have recently held that a conscientious effort to expeditiously convey ownership of a primary dwelling, and thereby preserve its value, constitutes good cause for a claimant to wait to follow a relocated spouse, since it is such an important asset (Appeal Board 467,740, supra). The record now under review shows that the claimant's efforts to sell her house were conscientious and expeditious, since she promptly placed the property on the market, engaged a professional realtor and conveyed it as soon as she secured a buyer. Therefore, we conclude that she left her employment with good cause and under nondisqualifying conditions.

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

The decision of the Administrative Law Judge is affirmed.

COMMENTS

    1. In this case, at the time her spouse relocated, claimant demonstrated an intent to rejoin her spouse. The delay was limited to a reasonable length of time and was due to her efforts to sell the home. Claimant acted diligently to resolve the cause of the delay; her "efforts to sell her house were conscientious and expeditious" (Similarly, AB 469,850A, not published).
    2. A similar conclusion was drawn in another case (AB 469,460, not published) where claimant abandoned plans to sell the home after being unsuccessful in her efforts, and arranged to rent the property instead.

A-750-2092

Index 1645 B.4

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

July, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay

Children Finishing the School Year

Claimant has a compelling reason to delay in following a spouse to another locality in order to allow a child to finish the school year.

A.B. 467,359

By initial determinations of the Out-of-State Resident Office, the claimant was disqualified from receiving benefits because of a leaving of employment to follow a spouse to another locality effective September 3, 1996; the claimant was held ineligible to receive benefits because the claimant did not comply with reporting requirements effective June 24, 1996 through July 7, 1996; the claimant was held ineligible to receive benefits under Section 590.11 based on the claimant's school employment effective June 20, 1996; and the claimant was held ineligible to receive benefits because the claimant was not available for employment effective July 8, 1996 through July 14, 1996. The claimant requested a hearing.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision filed October 3, 1996 (A.L.J. Case No. 196-08438), the Administrative Law Judge overruled the initial determination which disqualified the claimant from receiving benefits because of a voluntary leaving of employment without good cause. The Administrative Law Judge sustained the initial determinations which held the claimant ineligible to receive benefits because the claimant did not comply with reporting requirements, and ineligible to receive benefits based on the claimant's school employment under Section 5990.11 of the Labor Law. The Administrative Law Judge also sustained the initial determination which held the claimant ineligible to receive benefits because the claimant was not available for employment, and modified the dates thereof to be effective from July 1, 1996 through July 31, 1996.

The Commissioner of Labor appealed the Judge's decision to the Appeal Board, insofar as it overruled the initial determination of disqualifying the claimant from receiving benefits because of a voluntary leaving of employment without good cause. Due deliberation having been had, the Board has determined to reopen and reconsider the decision of the Administrative Law Judge.

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

FINDINGS OF FACT: The claimant was employed as a food service worker by an educational institution from September 5, 1989 until June 29, 1996. The claimant worked full time and earned $8.37 per hour.

The claimant submitted a letter of resignation to the employer on June 24, 1996 in order to follow her spouse to North Carolina where he had found a permanent job. The claimant's spouse was laid off in November 1995, when his employer closed its facility in New York. New York State deemed the claimant's spouse a dislocated worker, and, among other benefits, gave the couple 90 days, until approximately the end of February, 1996, in which to sell their home and relocate.

The couple had two sons in junior high school. The claimant was unable to sell the family home within the 90 day period, and in March, 1996, decided to wait until her sons completed the school year before moving. The spring semester in North Carolina schools ends approximately one month earlier than New York schools.

OPINION: There having been no appeal therefrom, it is the law of the case that the claimant is ineligible from receiving benefits under Section 590.11 of the Labor Law effective June 20, 1996; that the claimant did not comply with reporting requirements effective June 14, 1996 through July 7, 1996; and that the claimant was unavailable for employment from July 1, 9996 through July 31, 1996.

The credible evidence establishes that the claimant resigned from her employment on June 24, 1996, in order to follow her spouse to North Carolina where he had relocated to undertake new employment after his plant closed in New York.

When the claimant failed to sell the family home by the end of February, the 90 day period allowed by New York State's dislocated workers' program, her teen-age sons were in the middle of their second semester of school. It was therefore reasonable that the claimant delayed moving until July 1, 1996, when their academic year ended, particularly in light of the fact that the schools in North Carolina were on a different schedule, wherein the spring semester ended a month earlier.

Therefore, under the totality of all the circumstances herein, we conclude that the claimant had good cause to delay following her spouse to his new employment. Accordingly, we further conclude that the claimant's employment ended under nondisqualifying conditions.

DECISION: The initial determination of the Out-of-State Resident Office disqualifying the claimant from receiving benefits because of a voluntary leaving of employment without good cause is overruled.

The decision of the Administrative Law Judge is affirmed.

COMMENT

In this and subsequent decisions the Appeal Board held that the potential harm to a claimant's child, arising from being displaced in the middle of a school year, is sufficiently demonstrable to justify delaying relocation until summer recess. This is so in view of the differences in academic curricula from state to state (See also AB 467,740; A750-2090).

The attached Interpretation Service Index page contains the rule of this release and should be filed under the appropriate heading in that index. This A-750 release should be filed by serial number in a separate binder.


A-750-2093

Index 1645 B.5

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

July, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay

Intent to Live Apart from Spouse

Claimant who intends to live apart from her spouse indefinitely, does not have good cause to quit employment to follow her spouse to another locality at a later time, unless a new, compelling change in circumstances necessitates the quit.

A.B. 468,058

By initial determination of the Out-of-State Resident Office, the claimant was disqualified from receiving benefits, effective August 10, 1996, because of a voluntary leaving of employment without good cause. The claimant requested a hearing.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision dated October 25, 1996, the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the judge's decision to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant was employed as a bank teller for six years, until July 21, 1996. In March 1995, her husband transferred to a job in Florida when his employer downsized its New York operations. At that time, the claimant decided not to relocate from the house she shared with her children and her parents, in the hope that her spouse might be able to return to employment in this state. In this way, she believed she could retain her job, which she liked, while her children continued attending the elementary school to which they were accustomed. However, in the last months of her employment, the claimant and her husband tired of their separate living arrangement, and she quit her job to reunite their family.

OPINION: The credible evidence establishes that the claimant quit her job to follow her spouse to another locality, sixteen months after his relocation. The Board has long held that a claimant might establish good cause for leaving employment to follow a spouse to another locality, if the spouse had a compelling reason to relocate, in the first instance. In particular, we have ruled that a spouse's relocation to undertake employment constitutes such a compelling reason (see Appeal Board 382,135; 383,990 and 394,536). In the instant case, it is uncontested that the claimant's husband move to Florida solely because his job was transferred there.

The Commissioner of Labor contends that, while the claimant might have had good cause to quit her job to follow her husband at the time he relocated, or shortly thereafter, she did not do so; but decided, for personal reasons, to keep her job and live apart from her spouse for months after his relocation. Having chosen to live apart, the Commissioner argues, the claimant should be denied benefits, absent a showing of some significant intervening change in her circumstances which would provide good cause for her to abandon her job and her separate living arrangement, to reunite with her spouse. In support of its position, the Commissioner cites the ruling of the Court Matter of Howe (188 A.D. 2d 982, aff'g A.B. 409,319). We find merit in the Commissioner's position.

In Howe (supra), the Court held that a claimant who decided to retain his employment in New York and live apart from his wife and children, after their relocation to Florida, did not have good cause to quit his job to follow them four months later, because there had been no material change in their circumstances, in the interim. The Board has recently reexamined its application of the rule of law enunciated in Howe and has concluded that it should apply only to a claimant who, upon the departure of their spouse, decides to live apart indefinitely, if not permanently. The rule should not be applied to a claimant who forms the intent to follow their spouse at the point of his departure, but temporarily delays in acting upon that intent, for a compelling reason and for a reasonable length of time, under the circumstances (Appeal Board 467,740).

In the case now under review, the record clearly establishes that the claimant did not follow her spouse to Florida until many months after his relocation there, because she hoped that her husband would return to New York, without any reasonable expectation of such an eventuality. Therefore, we conclude that she was properly disqualified from benefits, under the rationale in Howe (supra), because there was no significant change in her circumstances, after her decision to live apart from her spouse indefinitely, which might give her good cause to quit her job to reunite her family. Under the circumstances, the Board need not reach the issue of whether the claimant would have had a compelling reason to delay in relocating, had she intended to follow her husband from the point of his departure. Accordingly, we find that she voluntarily left her employment without good cause.

DECISION: The initial determination of the Out-of-State Resident Office is sustained.

The decision of the Administrative Law Judge is reversed.

COMMENTS

1. Claimant did not decide to follow her spouse to Florida until many months after his relocation. After her decision to live apart from her spouse indefinitely, there was no significant change in circumstance which would give her good cause to quit her job to reunite her family.

2. Disqualification from benefits also resulted in another case where claimant extended her delay in relocating so that she could attend to non-compelling personal matters. While she would have been eligible if she had relocated as soon as she resolved the compelling causes for her initial delay, she decided to remain apart from her spouse in order to fulfill certain social engagements.(AB 468,067, not published)


A-750-2094

Index 1645 B.6

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

July, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay

Emotional Distress

Claimant who intended to live apart from the spouse, but suffered emotional distress due to the separation, has good cause to quit employment in order to rejoin the spouse.

A.B. 434,814

By initial determination of the Out-of-State Resident Office the claimant was held eligible to receive benefits without any disqualifying conditions. The employer requested a hearing contending that the claimant should be disqualified from receiving benefits because of a voluntary leaving of employment without good cause. On behalf of the Commissioner of Labor, it is contended that the hearing request was not made within the statutory period.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision dated November 9, 1993 the Administrative Law Judge overruled the objection to timeliness and sustained the employer's objection.

The claimant appealed that portion of the judge's decision which sustained the employer's objection to the Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

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

FINDINGS OF FACT: The claimant's spouse left New York City in July, 1992 to accept new employment in Florida. They had originally agreed that the claimant would remain for approximately two years and then join her spouse in Florida. After ten months, the claimant decided to follow her spouse to Florida because of her emotional upset due to his absence.

OPINION: Although the claimant had originally intended to remain for two years, she should not now be disqualified from receiving benefits because she changed her mind. A leaving of employment to join one's spouse who had previously relocated because of accepting employment elsewhere is with good cause. Accordingly, we find that the claimant is not disqualified from the receipt of benefits.

DECISION: The initial determination of the Out-of-State Resident Office is sustained.

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

COMMENT

As with any other case where claimant alleges a harm to physical or emotional well-being, appropriate documentation from a physician or mental health professional is necessary.

 



A-750-2095

Index 1645 B.7

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

July, 1997

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Follow Spouse
After A Delay

Accommodating the Employer's Request

If claimant delayed relocation with her spouse to accommodate her employer's request, this delay should not result in a disqualification, when quitting at an earlier date would not have been disqualifying.

A.B. 457,410

By initial determination of the Out-of-State Resident Office, the claimant was disqualified from receiving benefits because of a voluntary leaving of employment without good cause, effective September 30, 1995. The claimant requested a hearing.

The Administrative Law Judge held a telephone hearing at which testimony was taken. There was an appearance by the claimant. By decision dated December 11, 1995 the Administrative Law Judge sustained the initial determination.

The claimant appealed the judge's decision to the Board.

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

FINDINGS OF FACT: The claimant worked as an administrator of a university research center for twelve years until September 29, 1995. Nine months earlier, her husband had moved to Florida to undertake employment there. Claimant did not immediately relocate with her spouse but was required to remain in New York to market their house and to care for a terminally ill family member. Following the sale of her house and the death of her relative, claimant announced to her employer in July 1995 her intention to relocate to follow her spouse. At that time, the employer persuaded her to continue working for an additional period, to assist in preparing essential grant proposals at a time when the employer was prevented from replacing the claimant due to a hiring freeze. Following completion of this work, the claimant resigned on September 29, 1995 and relocated to Florida.

OPINION: The credible evidence establishes that the claimant quit her employment in New York to follow her husband to Florida where he had relocated to undertake new employment. The Board has long held that such a leaving of employment is with good cause under the law. Nor is this result altered by the fact that the claimant did not relocate at the same time as her spouse but delayed her departure for some months, while simultaneously negotiating the sale of their residence and caring for a terminally ill relative and, thereafter, while accommodating the employer by extending her employment to provide indispensable services (Appeal Board 399,375). Accordingly, we conclude that the claimant's employment ended under nondisqualifying conditions.

DECISION: The initial determination of the Out-of-State Resident Office is overruled.

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. In this case, claimant delayed relocating with her spouse for several reasons. She was tending to an ill relative and simultaneously negotiating the sale of the family's residence. Thereafter, she further delayed her relocation to accommodate her employer. Claimant was engaged in projects with deadlines, and could not be replaced.

 

    1. It should be noted that the Appeal Board reopened and reconsidered this case, upon the Commissioner of Labor's request, and adhered to its original decision (AB 460,741A).

 

    1. This principle was reaffirmed by the Appeal Board in a later case, wherein the Board held that "participating without undue delay in the training of a replacement, at an employer's request, provides justification for waiting to follow", but only if the efforts to train had been conscientious and expeditious (AB 469,315, not published).

 



A-7S0-2098

Index 1460 C.8

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

 

INTERPRETATION SERVICE-BENEFIT CLAIMS
  
The rule formerly reported here is obsolete.                                                                           TOTAL OR PARTIAL UNEMPLOYMENT
Payments Without Work
Separation Related Payments



A-750-2099

Index 1125.13

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

January, 1998

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Alcohol

Alcoholism & Safety Sensitive Work

Alcoholism does not excuse a claimant's reporting to work in a safety sensitive position while impaired by alcohol, because of the potential for harm to the welfare or safety of the claimant himself, or his coworkers, or his employer's customers.

A.B. 471,802

By initial determination of the local office, the claimant was disqualified from receiving benefits, effective August 6, 1996, because of a loss of employment through misconduct in connection therewith. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision filed October 23, 1996 (A.L.J. Case No. 096-34094), the Administrative Law Judge overruled the initial determination.

The employer appealed the Judge's decision to the Appeal Board.

By order dated January 7, 1997 (Appeal Board No. 467939), the Board rescinded the decision of the Administrative Law Judge and remanded the matter for further proceedings. Prior to the hearing held pursuant to the Board's order, the Commissioner of Labor issued an additional initial determination that held the claimant ineligible to receive benefits, effective September 2, 1996, because claimant was not capable of employment.

Pursuant to the order of remand of the Board, an Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, of the employer, and of the Commissioner of Labor. By decision filed March 13, 1997 (A.L.J. Case No. 097-01381), the Administrative Law Judge overruled the initial determination.

The employer and the Commissioner of Labor appealed the Judge's decision to the Appeal Board. In connection with its review of the case, the Board considered the arguments contained in the written statements submitted.

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

FINDINGS OF FACT: The claimant worked as a track worker for the employer, (a local transit authority), from July 8, 1985 through August 5, 1996. The claimant's position was classified as safety sensitive by federal regulation. His duties included working with a 12 person crew lifting rails weighing up to 1,300 pounds near active third rails.

The claimant regularly drank alcoholic beverages and had, on occasion, reported to work after he had been drinking. On August 5, 1996, the claimant drank a six-pack of beer within a one hour period, consuming the last beer at 9:00 A.M. The claimant reported to work at 10:00 A.M. The claimant was given a breathalyzer test as part of a random test. The test was positive for alcohol with a .074 reading. The claimant was suspended from employment that day. The claimant was sent to the employer's Employee Assistance Program (EAP). After initial counseling, the claimant agreed to engage in outpatient treatment regarding his abuse of alcohol. Such treatment included his attendance at meetings four evenings per week and additional attendance at AA meetings. Effective September 2, 1996, the claimant's counselor first indicated that claimant was again capable of working. As of January 15, 1997, the claimant was cleared by the EAP to return to work for the employer.

OPINION: The credible evidence establishes the claimant reported to work in an impaired condition with an alcohol level of .07. It is undisputed in this record that claimant's job involved dangerous activities and was classified as safety sensitive under federal regulations. While claimant may be an alcoholic, the court has held that not all acts of misconduct are excusable because of that circumstance (see Matter of Gaiser, 82 AD 2d 629). That is the circumstance herein. The claimant's act of reporting for work in a safety sensitive position while impaired by alcohol created a dangerous situation for himself, for his co-workers, and potentially for the customers of the transit system. In view of the significant potential for harm to the health and welfare of all involved, we find that claimant's action rose to the level of misconduct. He is, therefore, subject to the disqualification imposed. In reaching this conclusion, we note and reject the Administrative Law Judge's analysis that the claimant's behavior is excusable because he did not actually engage in work related activity on the day in issue. The reality of the circumstance is that claimant would have engaged in his dangerous job activities, thereby placing himself and others in potential peril, but for the circumstance that he was selected for a random alcohol test. We find that this fortuitous occurrence should not and does not shield the claimant from the consequences of his behavior.

Since the claimant is subject to the disqualification because he lost his employment through misconduct in connection therewith, the issue of the claimant's capability of employment is academic and need not be decided.

DECISION: The initial determination of the local office disqualifying the claimant from receiving benefits effective August 6, 1996, because he lost his employment through misconduct in connection therewith, is sustained.

The decision of the Administrative Law Judge is reversed.

COMMENTS

    1. This case is a clear example of behavior which is not excused by a claimant's alcoholism. In Matter of Gaiser, 82 AD 2d 629, cited by the Appeal Board in this case, the court described the notion that an alcoholic is incapable of misconduct as an "unsupported and dangerous conclusion." Since that decision, the Board and the courts have generally held that alcoholism cannot excuse actions that are dangerous or unlawful. Actions which have been held to be not excusable include driving while intoxicated, destroying property, sexually harassing a co-worker, falsifying time cards, assault, and theft.
    2. Although the Federal Regulations referred to in this case apply specifically to safety sensitive employees in mass transit, similar regulations have been enacted to control alcohol misuse in other industries which affect the public safety. Generally, these regulations identify "safety sensitive" workers, and distinguish them from other workers whose activities do not directly affect the public safety.
    3. Safety sensitive workers in mass transit are required to submit to random alcohol breathalyzer tests. And if the test reveals an alcohol level greater than .04, the regulations require that the employee be removed from safety sensitive duties and referred for counseling. They are prohibited from consuming alcohol not just on duty, but also within four hours of the start of their shift. Any violation of these regulations is misconduct.
    4. Although this case involved a worker whose job is defined by Federal Regulation as safety sensitive, this principle would apply to any worker whose tasks involve safety hazards, or whose performance while impaired could create a safety hazard. This would be evident in the nature of the work: a driver, an operator of heavy machinery, an engine repair mechanic, a doctor.