Wednesday, March 5, 2014

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - FIGHTING ON THE JOB - PART 2

The position of the DOL appears to be set forth in the Interpretation Service - Benefit Claims - MISCONDUCT - Relations with Fellow Employees - A-750-1947:


COMMENTS

  1. It is well established that a claimant who initiates a physical altercation with a co-worker, a supervisor or a customer in violation of an employer rule forbidding fighting, commits misconduct.
  2. On occasion a claimant may be drawn into a fight involuntarily. Under such circumstances, the claimant has an obligation to withdraw from the fight at the first opportunity. The Appeal Board has previously held that it is immaterial who strikes the first blow if, once the fight commences, neither employee is willing to abandon it. (A.B. 319,018)
  3. Escalating an argument is inappropriate behavior for the workplace. When a verbal dispute threatens to become physical" one means of avoiding physical confrontation is to seek assistance from a supervisor. Failure to do so, thus allowing a fight to ensue, is misconduct. (A.B. 345,987)
  4. Not all physical fights allow a person to retreat. A claimant will not be subject to disqualification if (s)he fights solely out of self-defense. (A.B. 320,635) The claimant acts in self defense when (s)he
    1. neither initiates nor provokes the physical altercation,
    2. has no available retreat once it begins,
    3. reasonably believes returning blows is necessary to avoid suffering additional, serious harm, and
    4. responds to the attack with no more than the minimal degree of force necessary to disengage from the fight.

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