Tuesday, April 24, 2012


Also from the DOL on pregnancy and voluntary separation:


Index Nos. 1605B-2


June 24, 1969

Discharge or leaving
Health or safety

Appeal Board Case 149,438


If claimant’s services are terminated under an employer’s policy requiring employees to cease working at a given stage of pregnancy, there is no voluntary leaving of employment even though the claimant declined to accept a maternity leave.

Referee’s Decision: The initial determinations of the local office, disqualifying claimant from receiving benefits effective October 5, 1968, on the ground that she voluntarily left her employment without good cause, and holding her ineligible to receive benefits effective October 7, 1968, on the ground that she was not available for employment, are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a clerk-typist, was pregnant, with an expected date of confinement of January 1, 1969. She had been employed at a bank since July 1965 and was a permanent employee, entitled to participate in the employer’s profit sharing and stock-purchase plans and other employee fringe benefits. Claimant’s physician had reported that she was capable of working up to the probable date of her confinement. However, the employer’s policy was to require its employees to cease working after completing the sixth month of pregnancy. At such time, the employer’s rules provided that such employees could obtain a six months’ maternity leave covering the last three months of pregnancy and the first three months following delivery. If such leave were obtained, the employee’s rights in respect to all of the various participation plans and other fringe benefits and the employee’s seniority in service were preserved without diminution. Upon the completion of such leave, the employee would return to work at the same salary she was receiving at the start of her leave and, if possible, in the same position she had held; if such were not possible, then in a position commensurate with the prior one. Claimant was aware of her right to receive such leave, with all attendant job-protection provisions, but she decided not to apply for it and instead she resigned because she wanted to withdraw, for her own use, the moneys with which she was credited in the participation plans. Her last day of work was October 4, 1968.

Claimant filed a claim for benefits, effective October 7, 1968. During the period subsequent thereto, claimant’s search for employment was curtailed because of her physician’s advice not to use public transportation during the rush hours. When interviewed at the local office on October 21, 1968, she stated that she was relying primarily on the employment service office to find work for her and therefore, up to that date, she had not sought work independently. Again, for the period from October 28, 1968 through November 4, 1968, she advised the local office that she had made no independent search for employment. Whatever contacts she did make with prospective employers were predominantly by telephone and she invariably advised them of her pregnant condition.

Appeal Board Opinion and Decision: Notwithstanding that it is undisputed that claimant was compelled to leave her employment on October 4, 1968, by reason of the rules of the employer which required that she terminate her employment on October 4 because of the stage of her pregnancy, it is nevertheless contended on behalf of the Industrial Commissioner that she must be deemed to have voluntarily left her employment without good cause for the reason that she failed to apply for a leave of absence which would have assured her re-employment by the same employer when and if she was prepared to return to the labor market after the birth of her child. While the contention thus advanced may find some support in prior decisions of the Board, we have now reviewed the matter and conclude that the disqualification provided for in Section 593.1 of the Law has no application under the circumstances herein.

The pertinent language of Section 593.1 of the Law is:

"No days of total unemployment shall be deemed to occur after a claimant’s voluntary separation without good cause from his last employment prior to the filing of his claim***" (Underscoring supplied)

Obviously claimant’s separation from her employment on October 4, 1968 was, in no sense, voluntary. Her separation from the employment on that day was mandatory by virtue of the employer’s policy which required her to cease working when she had reached the sixth month of her pregnancy. It is, of course, true that claimant could have protected her status for subsequent re-employment by availing herself of the privilege of obtaining a leave of absence for a six month period so that she could be assured of re-employment at that time if she intended to remain in the labor market after the birth of her child. However, the Law does not provide for a disqualification due to a claimant’s failure to protect an employer-employee relationship but only for "separation***from***employment."

The test, which must be applied, therefore, is whether claimant’s failure to apply for the leave of absence was the cause for her separation from the employment. The answer is self-evident because, irrespective of any application she could have made for a leave of absence, the employer’s policy mandated the termination of her employment on October 4, 1968. Thus, the conclusion is compelled that her separation from her last employment prior to the filing of her claim was entirely involuntary.

If claimant fails to obtain any employment prior to the time when the leave of absence which she could have obtained would expire and her failure to apply for the leave results in her inability to obtain rehire by her last employer when and if she is prepared to return to the labor market, after the birth of her child, it would then follow that her separation from employment at that time would be the result of her voluntary act in having failed to protect the employer-employee relationship so as to assure herself of re-employment at that time. However, that is not the issue before us. We are concerned solely with whether or not claimant’s unemployment in the period here at issue, prior to the birth of her expected child, is the result of her voluntary separation from the employment. Applying such tests were are persuaded to the conclusion that claimant's’ unemployment in the period with which we are concerned results solely from a lay-off precipitated by the enforcement of the employer's rules.

It thus becomes necessary to determine whether or not claimant was available for employment during the period for which she claimed benefits. An analysis of the proof adduced herein compels the conclusion that claimant failed to establish her availability for employment throughout the period in issue because she failed to demonstrate the diligence expected of a person who is genuinely desirous of becoming re-employed, especially in view of the limited time during which she could have continued to work before the birth of her child. Her job search appears to be mere token in nature and completely inadequate in scope and with respect to the methods she used to learn of possible job opportunities.

The initial determination of the local office disqualifying the claimant for having voluntarily left her employment without good cause is overruled.

The initial determination of the local office ruling claimant ineligible on the ground that she was unavailable for employment is sustained.

The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 25, 1969)"

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