Monday, February 15, 2010


Another interesting case is SILBERZWEIG v. DOHERTY, 23 Misc.3d 618, 873 N.Y.S.2d 461 ( Sup. Ct. N.Y. Co. 2009), which I quote in part:

"Initially, the Department of Labor had disqualified Silberzweig from receiving benefits on the ground that his employment had been lost through misconduct because he had been absent without leave during his incarceration. The Appeals Board reversed, stating that

"There is no dispute that the claimant was absent
without leave since August 2, 2007 because of his
arrest. However, the claimant's father notified the
employer of the claimant's arrest and incarceration
within two days of the arrest, and the employer knew
of the claimant's whereabouts. . . . The claimant was
absent due to his arrest on August 1, 2007, and since
he was acquitted oh February 13, 2008, I find that the
arrest and resulting absence
was due to circumstances beyond his control. He
reasonably notified the employer of his whereabouts
and his inability to work. The claimant did not
voluntarily leave this job by these absences caused by
the arrest, and he did not commit any act of
misconduct with respect to his arrest or absences."

That rationale applies with equal force here. Since Silberzweig was acquitted of all charges, his arrest and resulting absence from work cannot be attributed to any misconduct on his part."

Notice that in this case, as opposed to the others reported in this discussion, the Claimant was aquitted of all charges: there was no plea bargain to a lesser charge.

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