Saturday, February 13, 2010

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Here is the most recent case I found from the Appellate Division, 3rd Department on the issue of criminal acts disqualifying a Claimant from benefits. This is the court that hears all appeals from decisions of the Appeals Board. The process is as follows: first a DOL determination, then a hearing before an administrative law judge, then an appeal to the Appeals Board, then an appeal to the Appellate Division, 3rd Department.

"IN MATTER OF VELEZ v. COMMISSIONER OF LABOR, 507620 [3d Dept 2-4-2010], 2010 NY Slip Op 00765, Decided and Entered: February 4, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,filed March 26, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Annette G. Hasapidis, South Salem, for appellant.

Before: Mercure, J.P., Rose, Lahtinen, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Claimant worked as a respiratory therapist at a hospital for over 14 years. While claimant was administering treatment, a female patient accused him of inappropriate physical contact. A criminal charge was filed against claimant as a result. He pleaded guilty to a reduced charge of harassment in the second degree (see Penal Law § 240.26 [1]), received a conditional discharge and his file was sealed. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant appeals.

We affirm. "It is well settled that offensive behavior in the workplace which is detrimental to the employer's best interest constitutes disqualifying misconduct" (Matter of Williams [Commissioner of Labor], 32 AD3d 1089, 1090 [2006][citations omitted]). Here, claimant's plea of guilty to a reduced criminal charge of harassment formed the basis for his discharge and entailed offensive physical contact that was strictly prohibited by the employer's rules and clearly adverse to the employer's interests. This provides substantial evidence supporting the Board's
finding of misconduct (Matter of Singleton [Commissioner of Labor], 60 AD3d 1230 [2009]; Matter of Bucolo [Commissioner of Labor], 6 AD3d 917 [2004]; Matter of
Daoust [Overnight Transp. Co. — Commissioner of Labor], 5 AD3d 828 [2004]). Claimant's challenge to the validity of the guilty plea and its ramifications is more properly brought in the context of the criminal proceeding. Although claimant denied engaging in any inappropriate conduct, this presented a credibility
issue for the Board to resolve (see Matter of Singleton [Commissioner of Labor], 60 AD3d at 1231; Matter of Williams [Commissioner of Labor], 32 AD3d at 1090) Consequently, we find no reason to disturb the Board's decision."

The lesson learned from this case is that if you are innocent of charges, do not plea bargain to a reduced charge so that you can get a quick resolve of the criminal action. If you want to receive unemployment benefits when you have been arrested for an alleged crime committed during work and work related, try to get an acquittal! That won't guarantee benefits as the standard of proof in a criminal case is different than the standard of proof in an administrative hearing, but a conviction or plea bargain will probably guarantee a denial of benefits.

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