Sunday, January 31, 2010


Recently I was successful in a hearing where an elderly claimant was disqualified from receiving benefits through misconduct. In order to protect the attorney/client privilege, I will not reveal the specific facts but the administrative law judge properly held that the claimant's failure to follow on three occasions the employer's request to obtain documents, under circumstances where the employee had no control over obtaining the documents, was "not so egregious so as to constitute disqualifying misconduct within the New York State Labor Law". The judge further stated:

"Although an employer may discharge an employer for any legal reason, not every reason to discharge rises to the level of misconduct within the meaning of the Unemployment Insurance Law. It is well settled that absent misconduct, an employee will be entitled to benefits despite the fact that the employer may have fired the employee for valid reasons. (See, Matter of Clum, 51 AD3d 1171 (3d Dept 2008); Matter of DeGrego, 39 NY2d 180 (Ct. App. 1976, affg 46 AD2d 253, revg A.B. Case No. 192293.)"

On a personal note, and although this is purely based on conjecture, some employers may be utilizing the "misconduct" card in order to terminate employment for non-legal reasons.

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