ISSUES WITH UNEMPLOYMENT INSURANCE BENEFITS

In this economy, there are many people who are being laid off. Many of you are hoping to receive unemployment insurance benefits to carry you through the difficult period of being in between jobs. But the cost of unemployment insurance is partially borne by your employer and, it has been my experience, that in order to cut costs, many employers are attempting to disqualify laid off employees from unemployment insurance benefits on the ground that the employee was terminated for misconduct. You do have the right to have a hearing on this issue but many should be aware of the law. Under Section 593.3 of the New York Labor Law, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. The term "misconduct" is not defined in the statute. However, the New York State Court of Appeals in Matter of James (34 NY 2d 491) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Unemployment Insurance Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job if an adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including: mere inefficiency, inadequate performance as the result of inability or incapacity, inadvertence or ordinary negligence in isolated instances, good faith errors in judgment or discretion, etc. On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness. There are also other grounds for disqualification of benefits: for example, you will generally not be entitled to benefits if it was determined that you voluntarily terminated your employment without cause. When faced with a denial of benefits, you should contact an attorney (non attorneys who undergo a certain course can also represent you before the Administrative Law Judge hearing) and names of attorneys and others who specialize in this can be obtained from State of New York. Unemployment Insurance Appeal Board, Executive Suite, 9 Bond St., Brooklyn, NY 11201, Tel. (718) 613-3505, Fax (718) 613-3507. Sometimes, these cases are handled on a pro bono basis and I have done several pro bono. But you should also be aware that presently, there is a huge backlog of cases and, in one matter I handled, due to the complexity of issues, multiple hearings were required. The process may sometimes take a considerable amount of time until a final determination is made.