Friday, May 18, 2012

NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION

In this 1973 Appeal Board case, the DOL, in its comments, sets forth its opinion as to hwat constitutes "puffing" and what constitutes "misconduct":

"A-750-1759

Index 1150A-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 18, 1973

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Provoked discharge

Appeal Board Decision 181,391

FALSIFICATION OF EMPLOYMENT APPLICATION

Termination for falsely claiming on an employment application to have experience operating a machine used on the job may be a disqualifying provoked discharge.

Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1972, without any disqualifying conditions, is sustained.

Appealed by: Employer.

Findings of fact: The claimant was employed by a large cleaning contractor as a porter for about three months to October 23, 1972. His terminal salary was $3.72 an hour. The claimant executed and signed a written application of employment dated July 19, 1972, in which he stated that he had two years experience in operating a floor waxing (buffing) machine. He also stated that he had experience in mopping large areas. The employer hired the claimant and put him to work at several locations where machines were not used. On October t 23, 1972, the employer sent the claimant to a location where he was asked by the supervisor whether he could operate a floor buffing machine. When claimant replied that he was able to operate the machine, the supervisor put him to work. Claimant attempted to operate the machine but he was unable to do so, although the supervisor attempted to instruct him in its use. The claimant was discharged by the employer for being unable to operate the waxing Machine and because of the false statement he made in his employment application.

Opinion: The employer in hiring claimant relied on the statements which claimant had made in his employment application. The credible evidence establishes that claimant was unable to operate the floor waxing machine and had misrepresented his work experience in his employment application. Under these circumstances, we conclude that claimant provoked his discharge, which is tantamount to a voluntary leaving of his employment without good cause.

Decision: The initial determination of the local office is overruled.

The employer's objection is sustained. Claimant is disqualified from receiving benefits effective October 24, 1972 because he voluntarily left his employment without good cause by provoking his discharge.

The decision of the referee is reversed. (May 17, 1973).

COMMENTS

Statements or concealments regarding circumstances prejudicial to the employer's interest must be distinguished from mere "puffing" of experience or qualifications. The former may lead to a disqualification, the latter need-not. Thus:

1. In A.B. 67,034, reported at A-750-1496 an electrician, who was unable to get work because of his age, exaggerated from 3 months to 3 years the length of time he worked for a previous employer. The Appeal Board overruled a disqualification.

2. In A.B. 58,928 (not reported) a class B machinist, anxious to be hired as a class A machinist in a steel plant, added 6 months to the period he worked for his penultimate employer in order to conceal his last job from which he had been discharged as not qualified. The Board sustained a disqualification for misconduct.

One important difference between the two cases described above is that the machinist, unlike the electrician, had previously been discharged because he was not qualified to perform the work in question, and attempted to conceal the fact, an act which was prejudicial to the employer's interests and went beyond mere "puffing." Claimant's actions in the instant case also went beyond mere "puffing," in that he falsely claimed to have a skill which was required in the job for which he was hired."

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