Tuesday, November 3, 2009

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Another issue that may come up: you commit a criminal act, either on the job or off. You are then discharged. Will you be denied unemployment benefits? Yes and no. First be aware that criminal acts bring up issues of disqualification under Section 593.4 of the New York State Labor Law which provides:

"4. Criminal acts. No days of total unemployment shall be deemed to
occur during a period of twelve months after a claimant loses employment
as a result of an act constituting a felony in connection with such
employment, provided the claimant is duly convicted thereof or has
signed a statement admitting that he or she has committed such an act.
Determinations regarding a benefit claim may be reviewed at any time.
Any benefits paid to a claimant prior to a determination that the
claimant has lost employment as a result of such act shall not be
considered to have been accepted by the claimant in good faith. In
addition, remuneration paid to the claimant by the affected employer
prior to the claimant's loss of employment due to such criminal act may
not be utilized for the purpose of establishing entitlement to a
subsequent, valid original claim. The provisions of this subdivision
shall apply even if the employment lost as a result of such act is not
the claimant's last employment prior to the filing of his or her claim."

Of course, another issue to be considered is whether the criminal act took place on the job or off the job and whether it is considered misconduct detrimental to the employer's interests. In any event, if you are denied benefits, your attorney or representative should consult with your lawyer who represented you in the criminal matter to get a clear picture of the issues. Here are some cases from the Department of Labor, and again, each case is determined on it's facts: Claimant was properly disqualified for loss of employment because of a criminal act when he had signed a statement admitting the commission of an act which constitutes a felony even though he subsequently pleaded guilty to a reduced charge of a misdemeanor. (A.B. 108,554A; A-750-1607; similarly. A.B. 298,970); A statement signed by claimant that he wrongfully took, monies from the employer is not a statement admitting a felony within the meaning of Section 593.4 if it does not show the amount involved and therefore, does not show that the monies taken reached that sum which renders the act to be a felony. (A.B. 85,225A; A-750-1577); A document prepared by a claims examiner and signed by a claimant in connection with his claim for benefits does not represent a signed "statement admitting that he (claimant) has committed" a felony within the requirement of Subdivision four of Section 593 of the law, and a disqualification as provided in that subdivision can, therefore, not be imposed on the basis of such document. (A.B. 76,294-60; A-750-1539); A postal employee commits a criminal act in connection with his employment (Section 593.4) when convicted for a felony (grand larceny) committed off the job because it is a condition of hire that postal workers subscribe to a code of ethics requiring that no employee shall engage in criminal conduce. (A.B. 281,278F); A claimant's off duty act, in disregard of standards of behavior which an employer has a right to expect of its employees, is "in connection with" employment within the meaning of Section 593.3 (misconduct) and Section 593.4 (criminal acts) of the Labor Law. (Claimant, a fiscal analyst for a municipality, was convicted of engaging in felonious corruption of a public official, reflecting unfavorably on the integrity of the employer.) (Matter of Markowitz, 94 A.D. 2d 155; A-750-1946); 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 reasons for the loss of employment, even if the original reason for discharge was only based on suspicion. (Matter of Powers 177 AD 2d 833; A-750-2043).

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