Wednesday, September 25, 2013

NEW YORK UNEMPLOYMENT INSURANCE - DELAY IN DISCHARGE DATE

If an employee violates company policy or commits some act of alleged misconduct on Day 1 but is not discharged until Day 160, an issue arises. As explained in In re AB 566212 (Decided November 29, 2012):
 
"OPINION: The credible evidence establishes that the employer discharged the claimant on November 4, 2011. The law is settled that there must be a direct nexus in time between the alleged act and the discharge to establish misconduct for unemployment insurance purposes, and if there is a delay, there must be a reasonable explanation for such delay. We find that the employer has failed to put forth any compelling explanation for the delay in discharge from May to November of 2011. Although an employer is entitled to a reasonable period of inquiry to investigate the matter and consider the proper consequences, we note that the investigation of the incident was essentially complete the following day. Even considering that school may have been out of session after June 26, 2011, we are not convinced that this adequately explains all of the inordinate delay in discharge, particularly considering that the claimant continued working for employer well into the next school year, and for some six weeks after the "personnel performance conference" in September.”          

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