Tuesday, May 15, 2012

NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION

This case appears to differentiate itself from prior strict holdings (emphasis supplied):

"Index 1150A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 7, 1957

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Appeal Board Case Number 61,271-57


MISCONDUCT, QUESTION OF – FALSIFICATION OF AGE

Falsifying the date of birth on an application for employment does not constitute misconduct in connection with such employment, when the employer’s pecuniary interests, actual or potential, have not been prejudiced.

Referee's Decision: The referee overruled the initial determination of the local office suspending the accumulation of benefit rights by claimant for a period of seven consecutive weeks effective May 1, 1957, on the ground that she lost her employment through misconduct in connection with her employment.

Appealed By: Industrial Commissioner.

Findings of Fact: We have reviewed the evidence adduced at the hearing before the referee and find that such evidence supports the following findings of fact made by the referee.

Claimant, a file clerk, refiled for benefits effective May 13, 1957. By initial determinations effective May 11, her benefits were suspended for seven weeks for loss of employment because of misconduct in connection therewith.

Claimant worked for an insurance company from April 22 to May 10, submitting her application for employment to the company she gave her date of birth as May 26, 1902. Actually, she was born June 28, 1897. The employer has established a special pension plan under which it hires women, ages 45 to 55, so that the oldest among them may benefit under the plan after having been employed at least ten years. The company will not hire any women over 55 since such employee should not benefit under the pension plan. In establishing this plan the employer desires to invite into the labor market, again, women who have not been employed for some time. The company designates the plan as its "special mature program," and it is designed for the benefit of such female employees. Claimant was not required to submit proof of her age on hiring. Shortly before she became unemployed the employer demanded proof of age. Claimant was unable to produce such proof and her services were terminated.

The Board makes the following additional findings of fact: The referee overruled the initial determination and the Industrial Commissioner appeals to the Board.

Appeal Board Opinion and Decision: We are in accord with the conclusion of the referee that claimant did not lose her employment through misconduct in connection with her employment. While we do not condone the giving of false information, we are of the opinion that something more must be shown in order to sustain an initial determination of misconduct. It was held in UCFE-41-55 that the mere falsification of an application for employment is not misconduct, per se, and that in order to sustain such a determination it must appear that the interests of the employer have been prejudiced. The employer’s pecuniary interest has not been prejudiced or subjected to jeopardy. Neither actual nor potential loss to the employer has been shown. Since that is so, the initial determination of misconduct was improperly issued. Compare Appeal Board 39,840-53 and Appeal Board 43,944-54, in each of which cases the record established that in addition to the false statement on claimant’s application for employment, there was actual or possible damage to the employer’ pecuniary interest.The initial determination of the local office suspending the accumulation of benefit rights by claimant for a period of seven consecutive weeks effective May 11, 1957, on the ground that she lost her employment through misconduct in connection with her employment is overruled.

The decision of the referee is affirmed. (October 18, 1957)"

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