Tuesday, March 6, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Here is the additional discussion of the topic of credibility found in "REVIEW LETTER 2-84, Attendance Related Separation Issues, Section VII, CREDIBILITY.":

"CREDIBILITY

As Oscar Wilde once observed, "Truth is rarely pure and never simple." Therefore, it is not surprising that one of the more difficult problems facing a claims examiner in resolving separation issues is testing the credibility of the parties. In the area of attendance related discharges, evaluating credibility is more difficult because often only the claimant knows the reason for the absence or lateness. This section explores means of evaluating credibility.

Verification

Proper interviewing technique requires that the credibility of any individual with exclusive knowledge of necessary facts be tested. The best means of certifying a statement is through independent sources outside the control of either the claimant or the employer. For example, the Weather Bureau would be able to provide information tending to confirm a claimant’s statement that an absence was caused by heavy snow. Other forms of independent verification frequently available and which the claims examiner should utilize include traffic and transit reports, police reports, medical documentation, and repair bills. The following case illustrates the importance of independent verification in evaluating the credibility of claimant’s explanation for the last absence/lateness.

Claimant W.J. had been absent 27 times between January 1, 1981 and September 18, 1981 when he was discharged. He had been on written warning for excessive absenteeism. He insisted that his last absence was compelled by his girlfriend’s hospitalization. He was discharged at 10:56 a.m. on September 18.

The Appellate Division sustained the disqualification for misconduct, noting, "The record is clear that claimant did not take his girlfriend to the hospital on September 17, 1981 but at 3:50 p.m. on September 18, 1981, some five hours after he had been notified at 10:56 a.m. that his employment had been terminated." (Matter of Johnson, 89 A.D. 2d 1050)

On occasion, the employer may have evidence tending to support or refute the claimant’s statement. A typical example is the employer’s possession of a signed acknowledgement of warning, refuting the claimant’s contention that (s)he was never warned. Note also the following example:

Claimant C.B. was absent 13 times in four months and had been warned. He was discharged. Claimant contended he was totally dependent upon a particular co-worker to get to work, and that his absences were caused by the co-worker’s absences.

Unpersuaded, the Appeal Board sustained a disqualification for misconduct. "We reject such contention in light of the employer’s attendance records showing the claimant reported to work on many occasions that the co-worker did not report to work." (A.B. 337,675)

Inconsistent Statements

Occasionally a statement will be self-contradictory or otherwise incredible. The Appeal Board recently rejected a claimant’s contention "that she failed to contact the employer on each day of her absence because she was too emotionally distressed, in view of her testimony that she would have complied with the rule if she had known she would be discharged for its violation." (A.B. 334,024)

At times, it is the employer’s statement that proves to be incredible. For example, the Appeal Board rejected an employer’s allegation of misconduct and found a claimant eligible for benefits, in part because despite the employer’s contention of discharge for latenesses, the claimant had been told he would not be dismissed if he agreed to drop an earlier union grievance against the employer. (A.B. 341,468)

There is a rule of evidence that statements made by a party at a time (s)he has no reason to believe they will be used adversely may be given more weight than subsequent inconsistent statements or testimony, even if given under oath.

This principle applies to unemployment insurance cases. For example, a claimant’s statement to the local office that his last lateness was caused by a family medical emergency might be viewed with skepticism if he had told the employer at the time of his dismissal that he had been late because he overslept. Similarly, at the hearing or appeal level, statements made by the claimant or employer which conflict with those given to the local office before their effect was known may be found less credible (Cf. Matter of Jensen, 49 A.D. 2d 794). For this reason, it is of the utmost importance for the claims examiner to obtain precise, detailed and complete statements from all parties.

Patterns of Absence

When a claimant alleges an absence was due to illness or other compelling reason but cannot provide documentation, the claims examiner should look to the claimant’s attendance history to see if there is a pattern of absence: for example, absence on Fridays or Mondays, the day following pay day, or as leave time accumulates. If a precipitating absence falls within a pattern, it should be scrutinized carefully. While the claims examiner should not automatically exclude the possibility that the claimant did have a compelling reason for the last absence, a precipitating absence falling within a pattern of absences is strongly suggestive of non-compelling, and thus disqualifying, reason for absence. The following cases are illustrative:

Claimant, a security guard, worked for a hospital. She had been discharged for absenteeism, but rehired with a warning that her attendance would be closely monitored. Thereafter, claimant was absent three times, all on Sundays. She requested Monday, February 14, 1983 as a day off, then failed to report to work on Sunday, February 13.

The Appeal Board rejected the administrative law judge’s conclusion that claimant’s last absence was an "honest mistake", finding "…she was fully aware that she was required to work on Sunday, February 13, 1983. Her failure to report to work on Sunday, February 13, 1983 was contrary to the employer’s interests… Therefore, we find that claimant’s employment came to an end due to misconduct in connection therewith." (A.B. 346,644)

Claimant H.D., on warning for poor attendance, was absent three consecutive Mondays prior to his discharge. On the last Monday, the absence precipitating his discharge, he was required to be in Family Court to contest a support action. He called his employer in the morning to notify it that he would be late and again, later on, that he would not be in at all. He was in court all day.

The Appeal Board found that, "Though his attendance record may have been poor, his last absence was for a compelling reason. Accordingly, claimant did not lose his employment through misconduct…". (A.B. 331,708)"

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