A Lawyer's Blog - Jon Michael Probstein, Esq.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-02-02T07:25:00.001-05:00

A written decision was not issued by the ALJ for almost a month due to vacation, holidays and heavy case load.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-02-01T07:28:00.002-05:00

The hearing lasted almost 2 hours. Testimony was given by the claimant. Testimony was given by the employer by a member of the HR Department; however, that witness had no direct knowledge of the circumstances of the claimant's termination and was not the claimant's direct supervisor (the employer was a large retail chain establishment).

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-31T07:31:00.002-05:00

Employer Exhibit 1 was introduced. This actually supported the claimant's case as it was a warning regarding claimant's failure to work after 6pm on about 15 different dates. The warning had a notation of claimant's comment: "As per Dr. note submitted to HR Dept. can only work up to 6pm anytime between 6am-6pm"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-30T07:38:00.001-05:00

Employee Exhibit 2 was also introduced on the issue of misconduct. It consisted of a receipt from a hotel which indicated that the claimant made a reservation for a hotel stay around 3 weeks after the claimant's request for vacation was made.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-29T09:24:00.003-05:00

Employee Exhibit 1 was introduced on the issue of misconduct. It consisted of a doctor's note which stated:

1. The claimant had diabetes.

2. The treatment was insulin and diet.

3. The claimant was cable of work but could not work after 6pm.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-28T10:41:00.002-05:00

At the hearing, Hearing Exhibit 1 was introduced on the issue of the application to reopen. It consisted of 5 documents:

1. The original Notice of Hearing.

2. The Default Decision.

3. My request to the ALJ office of a copy of the decision.

4. The response from the ALJ office.

5. My application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-27T07:47:00.001-05:00

A hearing was scheduled. The issues were loss of employment through misconduct and the claimant's application to reopen.

TODAY

2012-01-26T07:33:00.003-05:00

From the Nassau County Bar Association website:

"Volunteer Lawyers Project

What is the Volunteer Lawyers Project?

Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.

What programs are part of the VLP?

Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.

• The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.

• The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.

• The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.

How does it work?

An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."

Today, I will be at Landlord/Tenant court in Nassau.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-25T07:39:00.002-05:00

After receiving the retainer, I made my application to reopen. For this case, I decided not to cite any case law, etc. but made a simple statement:

"UNEMPLOYMENT INSURANCE APPEAL BOARD
400 Oak Street
Garden City, NY 11530

Re: ALJ XXXX IN RE: XX
Gentleman:

I am representing the claimant. On behalf of the claimant, the claimant hereby applies to reopen the attached decision.

The claimant defaulted due to the fact XX desired an attorney. XX advises me XX never received a copy of the default decision attached. After contacting me in September, I began to investigate XX claim and discovered that the claimant has a meritorious claim. It appears that the Claimant did not engage in any misconduct.

Accordingly, I request a hearing at the Garden City office at a date and time mutually convenient.

Sincerely,

Jon M. Probstein"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-24T07:23:00.003-05:00

A copy of the file was finally delivered to me a few weeks after the ALJ hearing date. The claimant's request for adjournment had been denied and the claimant was in default. After reviewing the file, I realized that there were various issues to be researched and it was several weeks later that I was able to write the claimant as follows:

"Hi:

Please excuse the delay but there were some issues that I had to research and it took some time.

I am willing to take on the case. I will need a signed copy of the retainer agreement attached and a copy of (the ALJ's) default decision ASAP so I can make an application to reopen."

FROM NASSAU LAWYER

2012-01-23T07:22:00.003-05:00

The picture of me is from quite some time ago but this article identifies me as Pro Bono Attorney of the Month for January 2012.

FROM LONG ISLAND BUSINESS NEWS

2012-01-22T08:54:00.000-05:00

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-21T10:57:00.002-05:00

The claimant then advised me that the claimant requested an adjournment of the upcoming hearing but that it was denied. The claimant also advised me that the claimant was trying to obtain the file from the ALJ office.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-20T06:58:00.002-05:00

The claimant then faxed over some important documents:

1. The Notice of Hearing.

2. A copy of the claimant's answers to the DOL questionnaire MC 25.

3. A doctor's note indicating the claimant's disability and inability to work overtime.

4. A factual description of the events surrounding the termination, viz., that the claimant was out on vacation (which the claimant believed was an approved vacation) on the dates the employer claimed were the unexcused absences.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-19T06:23:00.003-05:00

After reviewing the claimant's email, I responded as follows:

"Hi:

I received your email. This is how I can proceed:

1. First, be aware that I am not available for the hearing on August XX and that I have not yet agreed to take on the case.

2. Second, please remember that this is a process: it may not result in immediate relief. The claimant has lost at the DOL stage, has requested a hearing and is now at the ALJ stage. Any party can, after the ALJ hearing, appeal to the Appeal Board and then to the Appellate Division, 3rd Department.

3. Third, unfortunately, I cannot evaluate the case until I review the entire file. Thus, once the file is delivered to me, the claimant would have to proceed as follows:

a. The claimant would have to go to the ALJ office and obtain a copy of the file so I could review and research the issue – again, the file should be delivered to me immediately.

b. After I review the file and research, I would advise the claimant whether or not I would agree to take on the matter.

c. In the meanwhile, the claimant would have to attend the hearing, advise the ALJ that the claimant was not ready to proceed because the claimant was seeking counsel, and the ALJ will advise the claimant that an application to reopen would have to be made within a reasonable time.

4. There are some documents which the claimant may already have – I suggest that you send me copies immediately. I will hold on to them until I receive the file and advise the claimant whether or not I would agree to take on the matter.

5. I operate on a fee basis in accordance with the Appeal Board rules. Attached is a form copy of my retainer agreement which we would utilize if I agreed to take on the matter.

Jon Michael Probstein, Esq.
Web: www.jmpattorney.com
Email: jmp@jmpattorney.com
Phone 212 972-3250
Fax 212 202-6495

LEGAL NOTICE

Unless expressly stated otherwise, this message is confidential and may be privileged. It is intended for the addressee(s) only. Access to this message by anyone else is unauthorized. If you are not an addressee, any disclosure or copying of the contents of this message or any action taken (or not taken) in reliance on it is unauthorized and may be unlawful. If you are not an addressee, please inform the sender immediately."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-18T12:23:00.002-05:00

The email sent to me regarding this matter indicated that the real issue was not misconduct due to failure to report absences, as set forth in the notice of adverse determination, but issues regarding a request for vacation and accommodation for disability.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-17T07:52:00.002-05:00

Case No. 8 was first referred to me about a week before the scheduled ALJ hearing. As I have posted in earlier blogs, as soon as a claimant receives a notice of adverse determination, as soon as a claimant receives a notice of protest, etc. - in other words as soon as claimant knows there may be a dispute as to benefits, that is the time to seek counsel.

In my own experience, I have rarely had a case that only took me a few days to prepare.

IN OBSERVANCE

2012-01-16T08:25:00.000-05:00

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-15T11:01:00.002-05:00

In Case No. 8, the first impression was that the issue was excessive absences from work. Here is the pertinent part of the notice of adverse determination:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-14T09:13:00.002-05:00

Page 2 highlights the issue that I am faced with in Case No. 8 & 9 - tacit approval. In Case 8, a request is made for a vacation and the employer's response almost two months later is a denial a few days before the scheduled vacation. In Case 9, a request is made for a vacation and the employer's response is "can you change it?" and no direct denial.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-13T08:29:00.003-05:00

Here is page 3 of the 2009 ALJ decision:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-12T07:27:00.002-05:00

Here is page 2 of the 2009 ALJ decision:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-11T07:17:00.003-05:00

The first time I dealt with the issue of vacations was in 2009. It was reported several years ago in this blog. Here again is page 1 of the decision:

The first time I dealt with the issue of vacations was in 2009. It was reported several years ago in this blog. Here is page 1 of the decision:

LAWYERS AND SOCIAL MEDIA

2012-01-10T06:54:00.004-05:00

This issue concerns me.

Yesterday, I made a mistake - it wasn't serious but I did it: a non-confidential business email meant to be sent to around 20 people on LinkedIn was sent out to 200 people instead. Social media raises new issues of ethics and the New York State Bar Association Committee on Professional Ethics has dealt with lawyers and social media. Here is one recent opinion:

"Opinion 899 — 12/21/11 (20-11)
New York State Bar Association Committee on Professional Ethics
December 21, 2011

Topic: Solicitation; answering legal questions on the Internet

Digest: A lawyer may provide general answers to legal questions
from laymen on real-time or interactive Internet sites such as
chat rooms, but the lawyer may not engage in "solicitation" in violation
of Rule 7.3. If a person initiates a request on the site to retain the
lawyer, the lawyer may respond with a private written proposal outside
the site so that those who did not request it cannot see it.

Rules: 1.0(a) & (c), 7.1(a), (q) & (r), 7.3(a) & (b)

QUESTIONS

1. May a lawyer answer legal questions in chat rooms or on other
social media sites on the Internet?

2. If so, may the lawyer also offer his or her legal services in the
course of answering questions?

OPINION

3. A lawyer asks whether he may visit real-time interactive internet
or social media sites on which individuals post legal questions and, if
so, whether he may answer questions and advise individuals of his
availability as a lawyer. For example, if a layperson in an Internet
chat room asks how long a person can wait to sue a lawyer for legal
malpractice, may the lawyer respond by saying, "The statute of
limitations in New York is three years"? May the lawyer also say,
"Please call me at the following number as soon as possible for a free
evaluation of your case"?

General principles of advertising and solicitation by lawyers

4. Rule 7.1 of the New York Rules of Professional Conduct
(the "Rules") governs attorney advertisements, and Rule 7.3 governs a
special form of advertising called

"solicitation." We begin our analysis with the
definitions of "advertisement" and
"solicitation."

5. An "advertisement" is defined under Rule 1.0(a) as "any public or
private communication made by or on behalf of a lawyer or law firm about
that lawyer or law firm's services, the primary purpose of which is for
the retention of the lawyer or law firm. It does not include
communications to existing clients or other lawyers."

6. "Solicitation" is defined in Rule 7.3(b) as follows:

For purposes of this Rule, `'solicitation'' means
any advertisement initiated by or on behalf of a
lawyer or law firm that is directed to, or
targeted at, a specific recipient or group of
recipients, or their family members or legal
representatives, the primary purpose of which is
the retention of the lawyer or law firm, and a
significant motive for which is pecuniary gain.
It does not include a proposal or other writing
prepared and delivered in response to a specific
request of a prospective client.

7. Thus, Rule 7.3(a) excludes from solicitation a response in writing
to a specific request of a potential client.

8. In general, Rule 7.1(a)(1) regulates the content of an
advertisement by prohibiting any lawyer advertisement that "contains
statements or claims that are false, deceptive or misleading."
Rule 7.3(a)(1) regulates the manner of advertising by expressly
prohibiting a lawyer from engaging in solicitation "by in-person or
telephone contact or by real-time or interactive computer-accessed
communication unless the recipient is a close friend, relative,
former client or existing client . . ." (Emphasis added.)

9. The term "computer-accessed communication," which is used in
Rule 7.3(a)(1), is defined in Rule 1.0(c) as follows:

"Computer-accessed communication" means any
communication made by or on behalf of a lawyer or
law firm that is disseminated through the use of
a computer or related electronic device,
including, but not limited to, web sites,
weblogs, search engines, electronic mail, banner
advertisements, pop-up and pop-under
advertisements, chat rooms, list servers, instant
messaging, or other internet presences, and
any attachments or links related thereto.

10. Comment [9] to Rule 7.3 sets forth the rationale for prohibiting
solicitation by in-person or telephone contact or by real-time or
interactive computer-accessed communication:

[I]n-person solicitation poses the risk that a
lawyer, who is trained in the arts of advocacy
and persuasion, may pressure a potential client
to hire the lawyer without adequate
consideration. These same risks are present in
telephone contact or by real-time or interactive
computer-accessed communication and are regulated
in the same manner. . . .

11. Comment [9] also explains that "[o]rdinary email and web sites are
not considered to be real-time and interactive communications," but
"[i]nstant messaging, chat rooms, and other similar types of
conversational computer-accessed communication are considered to be
real-time or interactive communication." Thus, the lawyer must not
engage in solicitation in those forums. With that background in place,
we turn to the specific questions before us.

Question 1: May the lawyer answer legal questions in
chat rooms?

12. The first question is whether the lawyer may answer legal
questions posted by laymen in chat rooms or on other social media sites
on the Internet. Answering questions on the Internet is analogous to
writing for publication on legal topics. As set forth in Rule 7.1(r), a
lawyer may write for publication on legal topics without affecting the
right to accept employment, as long as the lawyer does not undertake to
give individual advice.[fn1] Comment [9] to Rule 7.1 echoes Rule 7.1(r)
by cautioning that, in the course of educating members of the public to
recognize their legal problems a lawyer "should carefully refrain from
giving or appearing to give a general solution applicable to all
apparently similar individual problems, because slight changes in fact
situations may require a material variance in the applicable advice;
otherwise, the public may be misled and misadvised." Comment [9] adds
that talks and writings by a lawyer aimed at the public "should caution
them not to attempt to solve individual problems" on the basis of the
information conveyed by the lawyer. A lawyer who adheres to those
guidelines may answer legal questions posted by laymen on the Internet.

13. Comment [9] to Rule 7.1 also says that lawyers "should encourage
and participate in educational and public relations programs concerning
the legal system, with particular reference to legal problems
that frequently arise." A lawyer's participation in an educational
program "is ordinarily not considered to be advertising because its
primary purpose is to educate and inform rather than to attract
clients." If a communication is not advertising, then it also cannot be
solicitation — see Rule 7.3, cmt. [1]. But Comment [9] to Rule 7.1 also
notes that an educational program "might be considered advertising if,
in addition to its educational component, participants or recipients are
expressly encouraged to hire the lawyer or law firm." In that case, the
communications would have to comply with Rules 7.1 and 7.3.
See, e.g., N.Y. State 830 (2009) (a lawyer may ethically contact
lay organizations to inform them that he or she is available to speak on
legal topics, but "must adhere to advertising and solicitation
requirements under the Rules where the communication is made expressly
to encourage participants to retain the lawyer or law firm"). We
therefore turn to Question 2.

Question 2: May the lawyer offer his or her legal services in
chat rooms?

14. The second question is whether the lawyer may offer his or her
legal services in the course of answering legal questions on the
Internet. As already noted, Rule 7.3(a) prohibits solicitation in
chat rooms and other similar types of conversational computer-accessed
sites because they are considered to be "real-time" or "interactive"
communications. However, the definition of "solicitation" in Rule 7.3(b)
expressly excludes "a proposal or other writing prepared and delivered
in responds to a specific request of a prospective client."
(Emphasis added.)

15. Standing alone, a legal question posted by a member of the public
on real-time interactive Internet or social media sites cannot be
construed as a "specific request" to retain the lawyer. Thus,
encouraging a layperson to retain the lawyer in response to such a
question is prohibited by Rule 7.3(a)(1). On the other hand, if a
lawyer's primary purpose in answering a question is not to encourage his
own retention but rather is to educate the public by providing general
answers to legal questions, then Rule 7.3(a)(l) does not prohibit the
lawyer's responses.

16. Moreover, Rule 7.1(q) generally allows a lawyer to accept
employment resulting from educational activities. Rule 7.1(q) provides
as follows:

(q) A lawyer may accept employment that results
from participation in activities designed to
educate the public to recognize legal problems,
to make intelligent selection of counsel or to
utilize available legal services.

17. Thus, if a potential client initiates a specific request to retain
the lawyer during the course of permissible real-time cyberspace
communications, then the lawyer's response to that person does not
constitute impermissible solicitation. Yet because the lawyer's response
in a chat room or interactive social media site would constitute a
solicitation to everyone on the site who did not specifically request
the lawyer's services, the lawyer may not post a response
that encourages everyone on the site to retain the lawyer. Therefore, if
the person making the request includes contact information, the lawyer
may respond only to that person.

18. If the person making the request does not include contact
information, however, then the lawyer's response must be in two stages.
The first stage is to ask the layperson to communicate directly with the
lawyer off the site, by email, phone, or otherwise. For example, if the
person whose question the lawyer answered in a chat room says, "Can you
represent me in my case?" the lawyer may post a response such as, "My
communications on this site are for the purpose of educating the general
public about legal issues. If you are seeking an individual
consultation, please visit my website at www.jones.com." Alternatively,
the lawyer may provide an office phone number, email address, and/or
mailing address, without giving any information about the lawyer's
services. If the person who requested the lawyer's services then uses
one of these methods to contact the lawyer directly outside the
real-time or interactive site, then the lawyer will not violate the
restrictions on solicitation by preparing and delivering a proposal or
other writing that responds to the specific request made by
that prospective client. (Because advertising includes both public and
private communications for the purpose of seeking retention, these
communications must comply with Rule 7.1.)

19. However, the lawyer may not post a proposal offering his or her
legal services on the real-time interactive Internet or social media
site, because posting that information would be a real-time and
interactive computer-accessed solicitation to people who did not request
it, in violation of Rule 7.3(a)(1).

20. This Committee cannot answer questions of law. Accordingly, we
cannot determine whether private responses to a layperson's specific
request on a real-time or interactive computer-accessed site would
violate § 479 of the New York Judiciary Law, which prohibits
solicitation by attorneys. Nor can we determine whether § 479 or
the Rules regulating advertising and solicitation are constitutional in
light of Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and
its progeny.

CONCLUSION

21. A lawyer may provide general answers (not individual advice) in
response to legal questions from laypersons on real-time or interactive
social sites on the Internet, but the lawyer may not engage in
"solicitation" absent compliance with Rule 7.3. If a person initiates a
request on the site to retain the lawyer, the lawyer may respond with a
private written proposal outside the site so that persons who did not
request the proposal cannot see it.

[fn1] We add that a lawyer who gives individual advice in a chat room or
on a public social media site might also be establishing
an attorney-client relationship without undertaking the conflict check
required by Rule 1.10(e) and would be revealing privileged legal advice
in a public place in violation of Rule 1.6(a)."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-09T07:37:00.002-05:00

This case dealing with vacations was just reported by the Appeal Board - it has a unique set of facts but still deals with the issue of vacation requests:

"DECISION OF THE BOARD

Mailed and Filed: DECEMBER 28, 2011

IN THE MATTER OF: Appeal Board No. 557607

PRESENT: GEORGE FRIEDMAN, MEMBER

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective September 15, 2010, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by Wegman's Food Markets, Inc. prior to September 15,2010, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed March 2, 2011 (), the Administrative Law Judge granted the claimant's application to reopen 310-09743, and sustained the initial determination.The claimant appealed the Judge's decision to the Appeal Board, insofar as it sustained the initial determination disqualifying the claimant from receiving benefits effective September 15, 2010, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by Wegman's Food Markets, Inc. prior to September 15, 2010, cannot be used toward the establishment of a claim for benefits.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed full-time for six years as a bakers' helper in the bakery department of the employer grocery store. The claimant's regular shift began at 3:00 A.M. On or before September 16, 2010, the claimant met with the bake shop production manager and area manager to advise that he was in the middle of some personal challenges involving a legal issue that he needed to address and that would require him to take time off from work. The claimant had learned that a warrant had issued for his arrest, and he wanted to turn himself in, which would involve being incarcerated for about a week, although the claimant was not sure of the precise period of time. The claimant had sixty-four vacation hours accrued and he asked whether he could use this time for the period he was incarcerated, so he could remain employed. The managers approved the claimant's request to take vacation for the remaining two days that week, and the following week, with the plan that the claimant would return on Monday September 27.This would leave the claimant with one remaining vacation day. The area manager told the claimant to have his mother contact him if he needed more time or to let him know what was happening.On or about Saturday September 25, the claimant learned that he would not be released until after the start of his shift on September 27, since court did not convene until 9:00A.M. and he would not be released until after he had appeared in court. The claimant's mother called the employer and asked to speak with the area manager. Upon learning that he was not in, she spoke with the claimant's team leader, who was also aware of the situation, advised him that the claimant would not be able to report on September 27, and articulated the claimant's request to use his remaining vacation day for that day. The claimant did not report to work on September 27 because he remained incarcerated until5:00 P.M. that day. When the claimant tried to report to work on September 28, he was not able to get into the building. The employer met with the claimant on September 29,2010, and discharged him because of his absence and failure to call in that absence, on September 27.

OPINION: The evidence establishes that the claimant was discharged because he did not report to work on September 27, 2010, and did not call the employer on that day to report his absence. However, the evidence also establishes that the claimant provided advance notice to the employer about his inability to report to work that day. It is uncontested that the employer was aware of the claimant's situation, and the reason he had been out of work since meeting with the managers on September 16, and that the employer had approved the claimant's use of vacation time to cover the period he was incarcerated. Given the employer's awareness of the claimant's plight, and willingness to assist the claimant in his attempt to keep his job, the claimant reasonably believed that the employer would allow him to take his final vacation day on September 27, which would account for his absence on that day, and allow him to remain employed. This belief was also founded upon the fact that the area manager told the claimant when they met on September 16 to have his mother call if he needed more time and to keep the employer informed. Although the area manager denied that he gave the claimant any instruction about what to do if he was unable to report on September 27, I am not convinced by this testimony. It is not plausible that a manager, knowing the uncertainty about the of the length of time the claimant would be unable to report to work, would not provide the claimant with instructions to keep the employer informed. Moreover, I note that the undisputed fact that the claimant's mother did call, and did ask to speak with the area manager on September 25, further supports the claimant's testimony. An employer may discharge an employee for any lawful reason, including dissatisfaction with that employee's attendance. However, under these circumstances, when the claimant was a six-year employee, was candid with the employer, had been approved by the employer to use vacation days to ensure he could remain employed while incarcerated, notified the employer that he would not be in on September 27 and of his intent to use his last vacation day to cover that absence, the claimant's final absence on September 27 does not constitute misconduct for unemployment insurance purposes. Accordingly, the Board holds that the claimant was separated from employment under non disqualifying circumstances.

DECISION: The decision of the Administrative Law Judge, insofar as appealed from, is reversed.The initial determination, disqualifying the claimant from receiving benefits effective September 15, 2010, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by Wegman's Food Markets, Inc. prior to September 15, 2010, cannot be used toward the establishment of a claim for benefits, is overruled. The claimant is allowed benefits with respect to the issues decided herein.

GEORGE FRIEDMAN, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-08T11:06:00.002-05:00

Another Appeal Board case from 2010:

"STATE OF NEW YORK
UNEMPLOYMENT INSURANCE APPEAL BOARD
PO Box 15126
Albany NY 12212-5126
DECISION OF THE BOARD
Mailed and Filed: NOVEMBER 09, 2010
IN THE MATTER OF: Appeal Board No. 550224
PRESENT: GERALDINE A. REILLY, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective June 16, 2009, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by WILLEX INDUSTRIAL CORP prior to June 16, 2009, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed January 22, 2010 (), the Administrative Law Judge overruled the initial determination. The employer appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant and the employer.
Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT:

The employer is a wholesale distributor of fasteners. The claimant was the General Manager of a distribution facility in China. On March 18, 2009, the claimant requested permission to take a vacation in June. The employer did not deny this
request. On June 5th, the claimant sent an inflammatory e-mail to the employer's largest client in Asia based on his understanding of instructions from the employer. On June 9th, the claimant advised the employer that he was leaving for his trip, which would be more than two weeks long. The trip was to a mountain-climbing expedition in South America that was being conducted as a fundraiser for a cancer foundation. The employer's Chief Executive Officer has donated to this foundation in the past and encouraged the claimant to participate in the foundation. The claimant had incurred almost $2,500 in expenses related to this planned trip. The employer sent the claimant an e-mail telling him that he was not to leave, and if he did leave, his departure would be deemed an abandonment of his duties and a resignation. The claimant wrote back to say that he was going to leave and that the office would be well taken care of. The claimant left on vacation. On June 15, the employer sent the claimant a termination letter based on gross misconduct and insubordination.

OPINION:

The credible evidence establishes that the claimant asked the employer on
March 18, 2009 for permission to take a vacation in June. Although the claimant and the employer dispute whether this vacation request was approved or not, the employer does not claim to have denied this request. Whereas the employer's CEO was aware of the claimant's activities regarding the cancer foundation, encouraged the claimant's
participation, had donated to the foundation in the past, and had discussed this specific vacation request with the claimant, we find that it is likely that the employer was aware that the claimant was planning his trip, and the employer did nothing to stop the claimant from incurring expenses related thereto. Further, we understand the employer's objection to the claimant's vacation to be based on the situation with the e-mail that the claimant sent the client pursuant to his understanding of the employer's instructions. As such, we conclude that the employer had tacitly, if not expressly, approved the vacation, and then revoked this approval in the wake of the e-mail incident. Under these circumstances, we conclude that the claimant was justified in taking an approved vacation that he had already planned and incurred expenses for. This case does not resemble Appeal Board Case 49,052-55 (cited by the employer as A-750-1358). In that case, the claimant was held to have voluntarily separated from employment in that the employer never approved the claimant's requested leave and the claimant was expressly told, before taking a six-month leave of absence, that reemployment could not be guaranteed upon his return. Accordingly, we conclude that the claimant was not insubordinate and did not lose his employment as a result of misconduct. In deciding this appeal, we decide only the Unemployment Insurance issue before us and no legal or factual issue that may be pending in any other forum. (See Labor Law § 623[2]).

DECISION:

The decision of the Administrative Law Judge is affirmed. The initial determination, disqualifying the claimant from receiving benefits effective June 16, 2009, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to June 16, 2009, cannot be used toward the establishment of a claim for benefits, is overruled. The claimant is allowed benefits with respect to the issues decided herein.

GERALDINE A. REILLY, MEMBER
LEONARD D. POLLETTA, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-07T09:04:00.002-05:00

Another recent Appeal Board case:

"STATE OF NEW YORK
UNEMPLOYMENT INSURANCE APPEAL BOARD
PO Box 15126
Albany NY 12212-5126

DECISION OF THE BOARD

Mailed and Filed: APRIL 19, 2011

IN THE MATTER OF: Appeal Board No. 551980
PRESENT: GERALDINE A. REILLY, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective January 8, 2010, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by WOMAN'S INTEGRATED NETWORK prior to January 8, 2010, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing. The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard. There were no appearances. The claimant failed to appear, either personally or through a representative. By default decision filed March 29, 2010 (A.L.J. Case No.010-07756), the Administrative Law Judge sustained the initial determination. The claimant applied to reopen the decision of the Administrative Law Judge filed March 29, 2010. Upon due notice to all parties, a telephone conference hearing was held at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed April 28, 2010 (A.L.J. Case No.), the Administrative Law Judge granted the application to reopen and overruled the initial determination. The employer appealed the Judge's decision to the Appeal Board. Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT:

The claimant worked for the employer, a managed healthcare company, from January 30, 2006 to January 7, 2010, last as a customer service supervisor. The chief operating officer was the claimant's direct supervisor. The employer's policy provides that excessive absenteeism and lateness may result in disciplinary action, up to, and including, termination. The employer's policy states that employees will request paid time off in advance and in writing to their supervisor, who will respond to the employee's request in writing in a reasonable time with an approval or disapproval.The claimant was aware of the employer's policies. In May 2009, in a performance improvement document, the claimant had been counseled regarding excessive absenteeism. The clamant had exhausted her allotted time off for 2009 prior to the end of the year. On December 11, 2009, the claimant was counseled by
her supervisor on items including attendance and punctuality. On December 30, 2009, the director of human resources, who was on vacation, called the office to speak to the claimant regarding some emails she had received from the claimant. The claimant told the director that she was thinking of taking January 4, 5, and 6 off. The director told the claimant that her supervisor, who was also on vacation, would
probably, or may, say it was fine, but strongly suggested that the claimant email her supervisor, as the director had been in contact with him by email. The next day, the claimant sent a letter to the director of human resources, copied to her supervisor, indicating that as per her conversation with the director, the claimant would be out of the office January 4 and would be returning January 7. On January 4, when the director and the claimant's supervisor were both back from vacation, the director of human resources told the claimant's supervisor that she had not approved time off for the claimant. The claimant did not report to work on January 4, 5, or
6. As a result, the claimant was discharged on January 7, 2010 for taking authorized
time off on January 4, 5, and 6. The claimant, although aware of a hearing scheduled to be held on March 29, 2010, failed to appear at the scheduled time. The claimant did not arrive on time for the hearingdue to transportation delays due to inclement weather and her unfamiliarity with the area.

OPINION:

The credible evidence establishes that the claimant failed to appear on time at
the hearing held on March 29, 2010 due to transportation delays caused by weather and her unfamiliarity with the area. The claimant has established good cause for her failure to appear. Accordingly, the claimant's application to reopen is granted.

The credible evidence further establishes that the claimant was discharged for taking unauthorized paid time off on January 4, 5, and 6 of 2010. The claimant knew that the employer's policy required her to make the request to her supervisor in writing and that the employer was required to provide a written approval or denial. However, at the time the claimant determined that she wanted to take time off from January 4 through January 6, her supervisor was on vacation. There is no evidence that the claimant made a request in writing or that there was any written approval or denial of time off. However, the parties agree that the claimant told the director of human resources that she was thinking of taking the days off. While this statement was not specifically a request to take the time off, it is apparent that the director of human resources understood from the claimant's statement that she was seeking approval for taking the time off. Moreover, when the director responded that she did not think it would be a problem, given that the director and the claimant's supervisor were both on vacation, the claimant could reasonably
believe that the director had thereby given her tacit approval. The claimant's actions in sending a confirming email to the director, copied to her supervisor, indicates that the claimant did, in fact, believe that she had obtained approval from the director. While the director, by her own admission, strongly suggested that the claimant contact her supervisor, the director did not tell the claimant that she was required to contact her supervisor for approval. Furthermore, while the claimant
was aware of the employer's policies and had been counseled and warned regarding
absenteeism, there is no evidence that the claimant had received warnings for taking
time off without obtaining her supervisor's written approval. In light of the director's tacit approval and the lack of prior warnings regarding obtaining approval, we conclude that the claimant's actions amounted only to poor judgment and do not rise to the level of misconduct. Her employment ended under non-disqualifying conditions.

DECISION:
The decision of the Administrative Law Judge is affirmed. The claimant's application to reopen 010-07756 is granted The initial determination, disqualifying the claimant from receiving benefits effective January 8, 2010, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to January 8, 2010, cannot be used toward the establishment of a claim for benefits, is overruled. The claimant is allowed benefits with respect to the issues decided herein.

GERALDINE A. REILLY, MEMBER
LEONARD D. POLLETTA, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-06T07:41:00.002-05:00

Recently, however, I have been faced with the issue of whether a vacation was approved or not, whether the request was granted or revoked, etc. The Appeal Board has also been faced with this issue:

"IN THE MATTER OF: Appeal Board No. 540775

PRESENT: MARYANN K. McCARTHY, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determinations disqualifying the claimant from receiving benefits, effective November 17, 2006, on the basis that the claimant voluntarily separated from employment without good cause; charging the claimant with an overpayment of $810 in benefits recoverable pursuant to Labor Law § 597 (4); and reducing the claimant's right to receive future benefits by eight effective days on the basis that the claimant made a wilful misrepresentation to obtain benefits. The claimant requested a hearing.By decision filed December 6, 2007 (Appeal Board No. 539054), the Board rescinded the decision of the Administrative Law Judge filed September 11, 2007, and remanded the case to the Hearing Section for a hearing and a decision on the remanded issues. The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, the employer, and the Commissioner of Labor. By decision filed February 6, 2008 (), the Administrative Law Judge granted the employer's application to reopen 007-10089 and sustained the initial determinations.The claimant appealed the Judge's decision to the Board.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed as a sales person by an insurance company for approximately three years. Employer policy concerning vacation time was that, normally, only accrued vacation could be used, but that exceptions could be made.In addition, vacation time taken in excess of an employee's vacation accrual balance would be unpaid, unless authorized to be paid by the supervisor.The claimant travels to India annually, typically for a three week duration. A trip oversees
from the Untied States to India is very expensive and the claimant incurs substantial costs in relation to the journey. Throughout her employment, the owner would permit the claimant's three week vacation requests to travel to India, regardless of whether she possessed the necessary accruals, in part because she was his top sales person in the office. Such vacation requests would, on the whole, be unpaid, as the claimant usually did not possess the total necessary three week vacation accruals.Towards the end of the claimant's employment, she asked her supervisor if she could receive permission for time off to travel to India to attend a family wedding. The claimant's supervisor responded that the claimant could take the time off if it was alright with the owner. On September 25, 2006, the claimant submitted her three week vacation request to the owner via email, comprising of November 22, 2006 through December 15,2006, and indicated that she had spoken to her supervisor concerning those dates. That same day, the owner returned the claimant's email and approved her request by solely stating "ok". Thereafter, relying on the owner's granting of her vacation dates, the claimant made the necessary arrangements with her travel agent to journey to India.In November 2006, the office became short-staffed due to personnel departures. On November 15, 2006, the owner changed his mind regarding the claimant's vacation leave and disapproved her request. The owner told the claimant that she must change her plans or shorten her trip. The owner advised the claimant that he would permit her to take ten days off, three of which would be unpaid, and that he would pay for a reasonable cost for the change in plane tickets. The claimant explained that it was impossible to change her plans at such a late juncture, particularly as separate bookings/reservations were needed in India, and there were no available bookings/reservation dates left due to the impending holidays. The owner explained that if she would not change her plans, she would have to deal with the consequences. After the owner re-emphasized that he would not approve her vacation time, the claimant left the premises on November 16, 2006 and did not return thereafter, as she deemed it too late to change her travel arrangements.The claimant could have continued working had she changed her travel plans.The claimant filed a claim for benefits on December 24, 2006 and indicated that she separated from employment due to lack of work. As a result, the claimant received $810in benefits.The employer failed to appear at the hearing held on July 18, 2007 because its primary witness was ill.OPINION: The credible evidence establishes that the employer failed to appear at the hearing held in 007-10089 because its primary witness was ill. We find such circumstances constitute good cause for the default and the application to reopen should be granted.The credible evidence establishes that the claimant lost her employment when she refused to change her vacation plans. Although the claimant contends that she was discharged, it was within her control whether or not she continued in her employment.The claimant was aware that she could have preserved her employment if she canceled/changed her travel plans, yet failed to do so. As such, the position ended at the claimant's volition and her separation must be deemed to have been voluntary.Nonetheless, we accept the claimant's more consistent and credible testimony that her vacation time was approved by the owner in September 2006, over the owner's denials to the contrary. In so deciding, we note that the owner testified inconsistently regarding when he first became aware of the claimant's vacation request and as to the length of the vacation period involved. Initially, the owner maintained that he was unaware of the claimant's vacation request or the exact dates she intended to be absent until approximately November2006. However, we note that the owner acknowledged that he received an email from the claimant as early as September 25, 2006 regarding her vacation request, which included the specific dates she intended to be out of the office. Further, we are not persuaded by the owner's contention that his email response to the claimant's vacation request on September 25, 2006, which consisted solely of the word "ok", was just a confirmation that he received the email. It is unclear why the owner would deem it necessary that he confirm to the claimant that he received her email. Rather, it is clear from the timing and content of the claimant's email and the owner's response that he had approved her vacation request and was not merely referencing that he had received the communication. In addition, we note that the employer's policy allowed for unpaid vacation leave and the claimant had been permitted to make the journey to India annually for approximately three weeks in duration during her employment. As such leaves had previously been approved even when she did not possess all necessary vacation accruals, it was not unreasonable for the claimant to believe that her vacation request had again been granted under the circumstances. While the employer was certainly entitled to subsequently disapprove the claimant's vacation request, it is significant that the trip in question involved considerable expenditures and was costly. The claimant arranged to make the trip only after her vacation request had been approved. The claimant, in reliance of the approval, proceeded to make the necessary preparations.Though the owner agreed to pay for a reasonable cost for the change in plane tickets, it is unknown, exactly, what the employer considered reasonable and the claimant credibly testified that the trip from the Untied States to India was considerably expensive. We also note that the owner asked the claimant to change her travel plans a week before her
scheduled departure during the holiday season. Hence, it was too late for the claimant to make other arrangements. Significantly, the claimant would have suffered a substantial loss had she canceled the trip or changed her plans. Under the circumstances, the claimant's decision to abandon her position, rather than incur a substantial financial loss from canceling her trip abroad after her leave had been granted, constitutes good cause for her voluntary separation. Accordingly, we conclude that the claimant separated from employment under non-disqualifying circumstances.As the claimant is eligible for benefits, there was no overpayment. However, the claimant certified that she separated from employment due to lack of work, although she knew she separated from her position under her own volition. Even if we were to accept the claimant's assertion that she was discharged, the fact remains that she was not separated from employment due to a lack of work. The claimant's certification constitutes a wilful misrepresentation, making the imposition of a forfeit penalty appropriate. There being no disqualification, the proper penalty is four effective days.

DECISION: The decision of the Administrative Law Judge is modified as follows and, as so modified, is affirmed.The employer's application to reopen 007-10089 is granted.The initial determinations, disqualifying the claimant from receiving benefits, effective November 17, 2006, on the basis that the claimant voluntarily separated from employment without good cause and charging the claimant with an overpayment of $810in benefits recoverable pursuant to Labor Law § 597 (4), are overruled.The initial determination, reducing the claimant's right to receive future benefits by eight effective days on the basis that the claimant made a wilful misrepresentation to obtain benefits, is modified to be effective four effective days, and, as so modified, is sustained.The claimant is allowed benefits with respect to the issues decided herein."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-05T07:52:00.001-05:00

In support of the DOL's position that a vacation taken without prior approval is a voluntary separation without good cause, the following is cited:

"A-750-1358

Index No. 1730-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 3, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Personal Affairs
Appeal Board Case Number 49,052-55

LEAVE OF ABSENCE DENIED WITH CLAIMANT ASSUMING RISK OF NON-REINSTATEMENT UPON RETURN

Voluntary leaving of employment for the purpose of taking a non-essential trip abroad is without good cause when claimant is not granted a leave of absence and assumes the risk of not being re-employed upon his return.

Referee’s Findings of Fact: A hearing was held at which claimant, his witness and a representative of his employer appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance. Claimant, an optician, filed for benefits on October 22 effective October 18, 1954. By initial determination effective October 18 he was disqualified for 42 days for voluntarily leaving employment without good cause. He filed a new claim effective November 29 and on this filing was held not to have filed a valid original claim because he had only 18 weeks of employment in the applicable base period. The initial determination of voluntary leaving of employment without good cause was mailed to claimant on November 5. He executed a formal request for hearing on December 7. A preliminary objection has been raised that claimant’s request was not timely. Claimant worked for the same employer for over 25 years to April 1954. He then desired a leave of absence because he had received word that his aged mother was seriously ill abroad and he was anxious to visit her. He spoke to the business agent of his union and also spoke to the head of his employer’s organization. He was told that no definite guarantee could be given at that time, but to communicate with his employer on his return from abroad. Claimant thereupon left and returned from abroad in October. He promptly communicated with his employer but there was no work then available for him. He thereafter filed the claim in issue. When claimant was questioned at the insurance office he was told about the disqualification which was intended to be issued and objected orally thereto. He did not return to the insurance office after the issuance of the initial determination in reliance upon what he believed had been instructions to him not to return to that office until November 29. Had it not been for what he believed were instructions to this effect he would have continued to report and would earlier have requested a hearing.

Referee’s Opinion and Decision: Although claimant did not formally request a hearing within 20 days from the issuance of the determination no November 5 he did object orally on the very date that the determination was issued when he was interviewed at the insurance office with respect to the circumstances surrounding the termination of his employment. I am convinced that although it was not intended by the insurance office representative that claimant conclude that he was to discontinue reporting until November 29, claimant relied upon what he considered to be instructions to this effect. I hold that claimant’s oral protest was sufficient to constitute a request for a hearing and that he is entitled to a hearing on the merits. In the instant case claimant did not leave his job over any objection voiced by his employer. He followed what had been standard practice to extend leaves of absence to employees of long standing if there was a meritorious reason therefore. Claimant left under a mutual understanding that there would be further work for him on his return. The failure of his employer to furnish claimant with additional work when he reapplied following his return from abroad was because of a falling off in business which was not anticipated at the time claimant left. I hold under these circumstances that claimant’s leaving was not without good cause under circumstances, which should subject him to disqualification. The initial determination that claimant voluntarily left employment without good cause is overruled.

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: After a review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee’s findings of fact are fully supported by the evidence in this case, and that no errors of fact appear to have been made, the Board adopts the findings of fact made by the referee as the findings of fact of this Board, except as follows: We find that claimant voluntarily left his employment to make a trip to Germany to accompany his wife, as a matter of personal convenience and not because of any compelling necessity. He and his wife went to Europe to see his wife’s mother, not claimant’s mother, as was found by the referee. Claimant was aware that his employer did not grant him a leave of absence for the purpose of his visit to Germany and that he was to assume the risk of being re-employed upon his return. The question presented is whether or not claimant voluntarily left his employment with good cause. After an examination of the record and testimony adduced before the referee, we can not agree with the conclusion reached by the referee, which is at variance with his findings of fact, that claimant left his employment under a mutual understanding that there would be further work for him on his return from abroad. On the contrary, claimant was made aware that his request for a leave of absence for a period of six months would not be granted. He was given to understand that if work were available for him upon his return from abroad, he might be rehired, but there was no assurance that a job would be available. When claimant returned from his trip and applied for reinstatement, his employer found no need for his services and did not rehire him. Under the circumstances, claimant is deemed to have left his employment without good cause within the meaning of the Unemployment Insurance Law. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective October 18, 1954 on the ground that he voluntarily left his employment without good cause is sustained. The decision of the referee is reversed. (April 1, 1955)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-04T08:14:00.000-05:00

According to the DOL:

"Voluntary leaving of employment for the purpose of making a non-essential trip abroad is without good cause when claimant is not granted a leave of absence and assumes the risk of not being reemployed upon his return."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-03T07:58:00.001-05:00

Here is another case which found a compelling reason but note the caveats in the comment:

"Index No. 1730.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 24, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Illness in Family
Personal Affairs
Referee’s Case Number 512-661-50R

VOLUNTARY LEAVING TO VISIT CRITICALLY ILL MOTHER IN FOREIGN COUNTRY

Claimant’s action in voluntarily leaving employment to visit his critically ill aged mother in a foreign country constituted a pressing and compelling reason and was with good cause.

Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, a baker, filed for benefits on November 13, 1950. By initial determination effective that date, he was disqualified for 42 days for leaving employment voluntarily. Prior to filing for benefits, claimant last worked in July 1949. He left the job to go to Italy to visit his aged mother who was critically ill and who desired to see him. Claimant had not seen his mother for many years. His mother was most anxious to have him come to visit her because she feared she would not survive long enough for her to see him again if she did not see him then. Claimant submitted a statement from the doctor who attended his mother, indicating the severity of her ailment and the fact that it was necessary for claimant to remain at her side until her health was sufficiently improved for him to leave. When this was so, claimant returned to the United States. The insurance representative urged that Appeal Board, 21,840-49 was applicable to the facts herein.

Referee’s Opinion and Decision: The case before me is distinguishable from Appeal Board, 21,840-49. The claimant in the cited case went to Sweden to visit relatives whom he had not seen for may years. There was no pressing reason for claimant’s gong there, except his long absence away from his family. To claimant’s mother it was a vital matter that he see her. The filial relationship in the case before me was a greater bond and of more compelling circumstance than the fraternal relationship in the case cited. It is held that claimant had good compelling reason to leave his job under the circumstances, and that he did not leave his employment voluntarily without good cause. The initial determination is overruled. (March 20, 1951)

COMMENT

One of the tests in determining whether a claimant’s leaving of employment is with good cause under the above circumstances is to determine whether leave of absence would have been granted and whether claimant requested such leave. Requesting a leave of absence rather than arbitrarily quitting is generally the action of a reasonably prudent person. The absence of such request when it would have been granted, together with the absence of any credible reason for failure to do so, could be considered a voluntary leaving of employment without good cause. It should be noted that the case here reported does not contain any facts relative to the above reasoning. Whether or not a different conclusion would have been reached by the Referee if such information had been obtained would be dependent upon the specific facts elicited.
Appeal Board Case 21,840-49 cited by the Referee which should be reviewed with this release was reported under A-750-922."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2012-01-02T11:12:00.001-05:00

A refusal of vacation after a considerable time may also be a compelling cause to quit:

"Index No. 1730.3
1735 D-2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 30, 1971

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Vacation
Violation of Terms of Employment

Appeal Board Decision 162,485

POSTPONEMENT OF PROMISED VACATION

Leaving of employment is with good cause when an employer, having agreed at time of hire to a vacation after one year, breaches that agreement by postponing the vacation for a substantial time.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective September 12, 1970, because she voluntarily left her employment without good cause, is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a bookkeeper, worked for the employer herein for 11 months from October 14, 1969 through September 11, 1970. At the time of hire it was agreed that after claimant had worked one year she would have one week of vacation. Early in September 1970 claimant requested that she be permitted to take her vacation in October. When the employer rejected this request, claimant asked to be allowed to take her vacation in December of 1970. The employer rejected this request and stated that claimant would not be able to take her vacation until the summer of 1971. Claimant left the job on September 11, 1970.

Opinion: The evidence establishes that the employer breached the agreement of hire by refusing to allow claimant to take her vacation after she had worked one year. Accordingly, we conclude that claimant had good cause to leave the job when the employer unreasonably insisted that she wait until the following summer to take her vacation.

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

The decision of the referee is reversed."

HAPPY NEW YEAR!

2011-12-31T09:47:00.002-05:00

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-30T08:42:00.002-05:00

This is the basic Appeal Board case dealing with the issue of cancelled vacations:

"Index 1730-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

SEPTEMBER 4, 1958

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Personal Affairs
Appeal Board Case Number 65,606-58

REFUSAL TO ABANDON TRIP ABROAD, AFTER GRANTED LEAVE HAD BEEN CANCELLED

No disqualification for a voluntary leaving of employment applies to a claimant whose employment is terminated upon refusal to cancel a vacation trip abroad when a leave for this purpose had been granted and when in reliance thereon, he had incurred expenditures and would have suffered a substantial financial loss by the cancellation of the trip.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days, effective May 19, 1958, on the ground that she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant.

Findings of Fact: Claimant was employed as a file supervisor. Her sister planned and arranged to make a trip abroad. She booked passage on airplanes which were to leave April 21, 1958 and return May 18, 1958 respectively. Due to the sudden illness of her sister, claimant was offered the opportunity to make the trip in her stead. Claimant applied to her supervisor for a leave of absence in order to make the trip. Such leave was granted upon condition that she relinquishes her summer vacation. This was agreeable to claimant.

Relying upon the granting of her leave of absence, claimant made the necessary preparations. She incurred substantial expenses, obtained a passport and submitted to vaccinations. Four days prior to the scheduled trip, claimant was informed that her leave of absence was cancelled because it was granted through error on the part of her supervisor. Claimant was then informed that if she made the trip it would be at the risk of her job. Claimant deemed it too late to rescind the trip arrangements and had no alternative but to submit the requested resignation. Had claimant cancelled her reservation, a substantial loss would have been suffered.

Claimant refiled for benefits effective May 19, 1958. The local office issued an initial determination disqualifying her from receiving benefits for 42 consecutive calendar days effective May 19, 1958, on the ground that she voluntarily left her employment without good cause.

Appeal Board Opinion and Decision: The referee, in sustaining the initial determination concluded that claimant left her employment without good cause because it was based upon personal considerations. We do not agree with this conclusion.

The trip in question involved the expenditure of a considerable sum of money. Claimant arranged to make the trip only after she had been granted a leave of absence. Claimant, in reliance thereon, proceeded to make the necessary preparations. Her demanded resignation, which followed her refusal to abandon the trip, was submitted by claimant not of her own free choice, but at the request of her supervisor.

We hold that under all the circumstances herein, claimant did not voluntarily leave her job. Virtually, she was discharged. She did not provoke her discharge.

The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective May 19, 1958, on the ground that she voluntarily left her employment is overruled. The decision of the referee is reversed. (August 22, 1958)

COMMENTS

In a previous case dealing with a claimant who left his employment to make a trip abroad (A-750-1358), the Appeal Board held that the voluntary leaving was without good cause. There are several factors which distinguish that case from the one here reported. In the earlier case, the employer did not grant a leave of absence and the claimant was made aware that he assumed the risk of being re-hired upon his return. Also, and perhaps more important, there was no evidence that claimant would have sustained a substantial money loss.

In the present case the claimant relied upon the fact that a leave of absence had been granted and had made all necessary preparations at a considerable expenditure. The decision emphasizes that a substantial financial loss would result from the cancellation of the reservations."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-29T10:22:00.004-05:00

This is a common situation:

1. Vacation requested by claimant.

2. Plans made by claimant for vacation.

3. Employer revokes vacation request.

4. Claimant refuses to cancel vacation and takes vacation.

5. Upon return from vacation, claimant learns he has either (a) been fired or (b) that employer's position is that by taking vacation, claimant quit employment.

The general rule, according to the Appeal Board, is as follows:

"No disqualification for voluntary leaving employment applies to a claimant whose employment is terminated upon refusal to cancel a vacation trip abroad when a leave for this purpose had been granted and when in reliance thereon, he had incurred expenditures and would have suffered a substantial financial loss by the cancellation of the trip. (A.B. 65,606-580)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-28T07:52:00.001-05:00

The Appeal Board web site cites the following Appeal Board case in support of the general rule that a denial of a request to change vacation plans was not good cause for voluntary leaving of employment:

"Index 1730-1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 23, 1942

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Vacation
Appeal Board Case Number 6114-41

VOLUNTARY LEAVING - DENIAL OF REQUEST TO CHANGE VACATION PLANS
(SECTION 506.2 OF LABOR LAW)

Denial of request to change vacation plans was not found good cause for voluntary leaving of employment.

Referee's Decision: Initial determination disqualifying claimant for voluntary leaving employment without good cause is overruled. (8/6/41)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant worked for twelve and a half years as secretary to the president of a corporation. It was a rule of the employer's establishment to schedule vacations of employees in the early part of the calendar year. Claimant's vacation was scheduled for July 1941 at her request. Claimant was ill in April but had recovered in May, although still in a run-down condition. She requested her employer to advance her vacation to May and also for permission to take off two additional weeks. These requests were denied, whereupon claimant resigned on May 9, 1941. Claimant filed for benefits on June 20, 1941. Her benefit rights were suspended by the local office for voluntarily leaving employment without good cause. At the hearing before the referee claimant admitted that the reason for requesting a change in vacation was not because of illness, but because she had the opportunity of taking an automobile trip if she could change her vacation period.

Appeal Board Opinion: Claimant did not advance her illness as a reason when she requested a change in her vacation plans. It appears from claimant's own testimony that her alleged illness did not prompt such a request but rather the fact that she had an opportunity to take an automobile trip at that time. When this request was denied, claimant preferred to resign than change her vacation plans. We cannot escape the conclusion that the real reason for claimant's leaving was the denial of her request for change of vacation. Under the circumstances of this case, we do not deem this to be good cause for her voluntary leaving.

Decision: Local office properly suspended claimant's benefit rights for voluntary leaving without good cause. Decision of referee is reversed. (10/27/41)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-27T08:38:00.002-05:00

The issue of vacations and employment arises many times on the issue of voluntary separation. The Appeal Board web site states this simple rule:

"Denial of request to change vacation plans was not good cause for voluntary leaving of employment."

CELEBRATE KWANZAA

2011-12-26T08:25:00.002-05:00

MERRY XMAS

2011-12-25T08:24:00.000-05:00

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-24T12:37:00.002-05:00

Clearly, taking a vacation without asking permission and/or after a clear denial would be misconduct as set set forth in this Appeal Board case from the Board's website:

"Index No. 1110-4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 23, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Absence and lateness
Insubordination

Appeal Board Decision 197,338

TIME OFF WITHOUT PERMISSION

Claimant’s precipitous action in announcing that he would take the next two days off for vacation, and then doing so in defiance of supervisor’s denial of permission, is misconduct.

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective April 9, 1974, because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Employer

Findings of Fact: The claimant, a graphics, photo and paste-up man, worked for a newspaper for eight months until April 8, 1974. He was employed on a part-time basis, Monday through Wednesday, 9 A.M. to 6:30 P.M. Late in the afternoon on Monday April 8, he told his immediate supervisor that he would be absent for the remainder of the week, as he was going to Ft. Lauderdale, Florida for the Easter vacation. The supervisor remonstrated with claimant and advised claimant that he could not be spared, but claimant insisted on going. When claimant returned from Florida and reported back to work on Monday, April 15, his supervisor told him that he had been discharged.

Claimant’s job duties entailed the operation of sensitive photograph equipment requiring special training and experience. The skills that he possessed were needed particularly on the two days of each week, Tuesday and Wednesday, before the employer’s publication went to press. A replacement for the claimant, who would be satisfactory to the employer, would be difficult to obtain on short notice.

Opinion: The credible evidence establishes that late in the afternoon of Monday, April 8 the claimant told his immediate supervisor that he would not be in to work again until the following Monday, April 15, because he was going to Florida for the Easter vacation. The supervisor denied claimant permission to make the trip. On April 9 the claimant left for Florida. As a result of his precipitous action and the position in which he placed the employer thereby, claimant was discharged for what is deemed to be misconduct in connection with his employment.

Decision: The initial determination of the local office is modified to be on the ground that claimant lost his employment through misconduct in connection therewith and as so modified, is sustained.

The decision of the referee is reversed. (October 28, 1974)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-23T13:15:00.001-05:00

First, there is the obvious rule regarding vacations and this is from the Appeal Board website:

"Claimant's precipitous action in announcing that he would take the next two days off for vacation, and then doing so in defiance of supervisor's denial of permission, is misconduct. (Matter of Bischoff, 48 A.D. 2d 1010; Affg. A.B. 197,338; A-750-1780)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-22T08:00:00.002-05:00

First, let me discuss my personal experiences:

1. Being self employed since around 1982, I have not had a real vacation since.

2. Prior thereto, when I worked at one firm, I did have a vacation and during the vacation, the firm sent me work to do as I was the attorney in charge. Shortly thereafter, I started my own firm.

3. And prior thereto to that incident, I worked at a firm where I was discharged for, among other things, insisting that I take my first vacation after two years (I am still friendly with this firm who advised me at my discharge that they would not dispute my unemployment insurance claim). I was on unemployment insurance for approximately two months until I secured a position at another firm.

I learned that vacations are needed. And I learned that vacations can interfere with business (ask any patient who gets upset when they find out their doctor is out on vacation).

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

2011-12-21T08:38:00.002-05:00

This has been an issue I have faced more than once, and even faced personally - a dispute over vacation leads to termination. Is this misconduct? Is this a voluntary separation without good cause?

HAPPY HANUKKAH

2011-12-20T06:55:00.002-05:00

WORKPLACE BULLYING OR HARASSMENT

2011-12-19T09:17:00.000-05:00

For more information on the Healthy Workplace Bill, visit these websites:

New York Healthy Workplace Advocates

The Healthy Workplace Campaign

WORKPLACE BULLYING OR HARASSMENT

2011-12-18T12:50:00.004-05:00

Here is a more detailed discussion of the history of the NYS Healthy Workplace Bill from the website of The Healthy Workplace Campaign, Dr. Gary Namie, National Director:

"2011
Assembly bill AB 4258 was introduced. The companion bill S 4289 was introduced.

2010
New York was on the verge of passing this historic bill in 2010 and would have been the first state in the US to do so.

Sponsors of Senate Bill S1823 B that PASSED the Senate in 2010!!!! Senators Thomas P. Morahan (deceased), George Onorato, Joseph Addabbo, Ruth Hassell-Thompson, Diane Savino

NY Assembly Labor Committee Chair Susan John was quoted in the Wall Street Journal saying, "No other state in the country has a law like this." She was referring to the WBI anti-bullying Healthy Workplace Bill. Thanks to a bill-killing vote in her committee on June 8, that will be true for all of 2010. The vote was not on the merits of the bill. Instead, the vote was technically whether to vote or "hold." It was held and is officially dead.

Read the summary of the news coverage about the Senate passage and Bloomberg's fear of the bill.

Assemblyman Bob Barr introduced A 6207.

2009
A2247, the study only bill, passed both the Assembly and Senate but was vetoed Gov. Paterson.

A banner 4-bill year, began with re-introduction of the study-only bills in the Assembly (A 2247) and Senate (S 1948) followed by a second set of companion bills, the complete versions of the HWB in both Assembly (A 5414) and Senate (S 1823). On April 29, 2009, S1823A added a provision to S 1823 to give union workers with collective bargaining agreements the best protection.

A 5414 was co-sponsored by the following:Assemblymember William Colton (D),Assemblymember William Colton (D), Assemblymember Joan L. Millman (D), Assemblymember Charles D. Lavine (D), Assemblymember Ellen Jaffee (D), Assemblyman Mark Schroeder (D), Assemblymember Dennis H. Gabryszak (D), Assemblymember Bob Barra (R),Assemblymember Bob Barra (R), Assemblymember Bob Barra (R), Assemblymember N. Nick Perry (D), Assemblyman Joseph S. Saladino (D), Assemblyman Al Stirpe (D), Assemblywoman Michelle Schimel (D).

2008
Barra (R) graciously relinquished control of the bill to Assemblymember Steven Englebright (D) and the bill became A10291 with Barra leading the list of nine co-sponsors. The Senate companion bill [S8793] to the full HWB was added in 2008 by Senators Thomas Morahan and Dale Volker.

2007
Assemblymember Bob Barra introduced the first full-text versions of the Healthy Workplace Bill [A7801/A7801-A]. The 2006 study-only bills were repeated [S2715 by Stachowski and A4921 by Schroeder].

2006
Senator William Stachowski and Assemblymember Mark Schroeder sponsored the first state bills [S8018 and A11565] calling for the state to study the problem of workplace bullying. Those bills made New York the 9th state to introduce HWB-related legislation in the U.S."

WORKPLACE BULLYING OR HARASSMENT

2011-12-17T08:54:00.001-05:00

The NYS Healthy Workplace Bill was first introduced in 2006. Here is a recap of it's history prior to 2011:

"2010 -- S 1823-B PASSED SENATE, 45-16-1
A 5414-B Held in Assembly Labor Comm.; A 6207
2009 -- Study-only bills: A 2247 & S 1948
2008 -- A 10291 & S 8793
2007 -- A 7801-A, S 2715 & A 4921
2006 -- S 8018 & A 11565"

WORKPLACE BULLYING OR HARASSMENT

2011-12-16T08:25:00.001-05:00

Here is the current NYS Assembly Bill:

"A04258 Summary:
BILL NO A04258

SAME AS Same as S 4289

SPONSOR Englebright

COSPNSR Colton, Gunther, Millman, Lavine, Jaffee, Schroeder, Gabryszak,
Schimel, Kellner, Rosenthal, Boyland, Castro, Rivera J, Robinson,
Pretlow, Weprin, Rivera P, Lupardo, Stevenson, Moya, Abbate, Rivera
N, Gibson, Roberts, Spano, Benedetto, Titone, Miller M, Maisel,
Ortiz, Dinowitz

MLTSPNSR Boyle, Brennan, Castelli, Ceretto, Curran, Cusick, Cymbrowitz,
Duprey, Galef, Goodell, Gottfried, Hooper, Jeffries, Johns, Katz,
Latimer, Lifton, Losquadro, Magee, Malliotakis, Markey, McDonough,
McEneny, McKevitt, Meng, Miller J, Montesano, O'Donnell, Paulin,
Perry, Ra, Raia, Ramos, Saladino, Scarborough, Sweeney, Tedisco,
Thiele, Titus, Tobacco, Weisenberg

Add Art 20-D SS760 - 769, Lab L

Establishes a civil cause of action for employees who are subjected to an
abusive work environment.Go to top
--------------------------------------------------------------------------------

A04258 Memo:
BILL NUMBER:A4258 REVISED 4/12/11

TITLE OF BILL: An act to amend the labor law, in relation to
establishing a private cause of action for an abusive work environment

PURPOSE: OR GENERAL IDEA OF THE BILL: To establish a civil cause of
action..for employees who are subject to an abusive work environment.

SUMMARY OF PROVISIONS: Clearly states the definitions of abusive
conduct; abusive work environment; conduct; constructive discharge;
employee; employer; malice; negative employment decision; physical
harm; and psychological harm.

Section 3 Defines Unlawful Employment Practice

Section 4 Defines Employer Liability

Section 5 Defines Defenses

Section 6 Defines Retaliation

Section 7 Defines Relief Relief generally Employer liability

Section 8 Defines Procedures Private right of action Time limitations

Section 9 Defines Effect on other state laws Other state laws Worker's
compensation and election remedies

JUSTIFICATION: The social and economic well-being of the state is
dependent upon healthy and productive employees. Surveys and studies
have documented that between 16 to 21 percent of employees directly
experience health-endangering workplace bullying, abuse and
harassment, and that this behavior is four times more prevalent than
sexual harassment alone. Surveys and studies have also documented that
abusive work environments can have serious effects on targeted
employees, including feelings of shame and humiliation, stress, loss
of sleep, severe anxiety, depression, post-traumatic stress disorder,
reduced immunity to infection, stress related Gastrointestinal
disorders, hypertension, pathophysiologic changes that increase the
risk of cardiovascular disease and other such effects.

This legislation will, provide legal redress for employees who have
been harmed, psychologically, physically, or economically. It will
also provide legal incentives for employers to prevent and respond to
mistreatment of employees at work.

LEGISLATIVE HISTORY: 2009-10: A54118 Referred to Labor 2009-10:
519235 (Sen. Morahan)Passed Senate

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.
Go to top
--------------------------------------------------------------------------------

A04258 Text:
S T A T E O F N E W Y O R K
________________________________________________________________________

4258

2011-2012 Regular Sessions

I N A S S E M B L Y

February 2, 2011
___________

Introduced by M. of A. ENGLEBRIGHT -- read once and referred to the
Committee on Labor

AN ACT to amend the labor law, in relation to establishing a private
cause of action for an abusive work environment

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

1 Section 1. The labor law is amended by adding a new article 20-D to
2 read as follows:
3 ARTICLE 20-D
4 ABUSIVE WORK ENVIRONMENT
5 SECTION 760. LEGISLATIVE FINDINGS AND INTENT.
6 761. DEFINITIONS.
7 762. ABUSIVE WORK ENVIRONMENT.
8 763. EMPLOYER LIABILITY.
9 764. DEFENSES.
10 765. RETALIATION.
11 766. REMEDIES.
12 767. ENFORCEMENT.
13 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS.
14 769. EFFECT OF OTHER LAWS.
15 S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS
16 THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON
17 HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED
18 THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE-
19 RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT.
20 SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE
21 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS
22 CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS
23 OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY,
24 DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO
25 INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08789-01-1
A. 4258 2

1 PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR
2 DISEASES.
3 FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN
4 HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE
5 PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND
6 SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS.
7 THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE
8 BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF
9 RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO
10 HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT.
11 THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE
12 WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A
13 PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT-
14 UTES. EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW
15 ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE
16 REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS.
17 THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR
18 EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM-
19 ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND
20 TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO
21 MISTREATMENT OF EMPLOYEES AT WORK.
22 S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
23 HAVE THE FOLLOWING MEANINGS:
24 1. "ABUSIVE CONDUCT" MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN
25 EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A
26 REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO
27 THE EMPLOYER'S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER
28 SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY,
29 NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT
30 NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE
31 OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT
32 THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI-
33 ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK
34 PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS
35 THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS.
36 2. "ABUSIVE WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH AN EMPLOYEE
37 IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS-
38 ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE
39 PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO
40 ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS
41 TO ELIMINATE THE ABUSIVE CONDUCT.
42 3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS
43 TO ACT.
44 4. "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE
45 THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT.
46 5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO-
47 LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI-
48 FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS
49 OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN
50 EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND
51 ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR
52 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF
53 THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHOLOG-
54 ICAL OR PHYSICAL VULNERABILITY.
A. 4258 3

1 6. "NEGATIVE EMPLOYMENT DECISION" MEANS A TERMINATION, CONSTRUCTIVE
2 DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR
3 DISCIPLINARY ACTION.
4 7. "PHYSICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS-
5 ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN
6 OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
7 8. "PSYCHOLOGICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S
8 MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY
9 COMPETENT EXPERT EVIDENCE AT TRIAL.
10 S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN
11 EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.
12 S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE
13 EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS
14 CONTROL.
15 S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF
16 ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON-
17 ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS
18 THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED
19 TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU-
20 NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE
21 AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA-
22 TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF.
23 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE
24 WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION
25 WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER'S
26 LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON
27 THE PLAINTIFF'S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY
28 UPON THE EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS,
29 ILLEGAL OR UNETHICAL ACTIVITY.
30 S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG-
31 ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY
32 PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS
33 CHAPTER.
34 S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED
35 IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT,
36 THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV-
37 ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT
38 NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE
39 PLAINTIFF'S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL
40 EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND
41 ATTORNEY FEES.
42 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN
43 ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT
44 DECISION, SUCH EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS
45 SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL-
46 ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT
47 APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.
48 S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE
49 BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE.
50 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES,
51 AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED
52 WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE
53 ALLEGATION OF ABUSIVE WORK ENVIRONMENT.
54 S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL
55 NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN
56 EMPLOYEE'S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES
A. 4258 4

1 GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL
2 THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING
3 AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE-
4 MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING
5 AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER
6 RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED
7 COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY
8 THE PROVISIONS OF THIS ARTICLE.
9 S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE
10 DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL-
11 TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION.
12 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY
13 COMPENSATION AVAILABLE PURSUANT TO THE WORKERS' COMPENSATION LAW;
14 PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS' COMPEN-
15 SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON-
16 MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS
17 ARTICLE FOR THE SAME SUCH CONDITIONS.
18 S 2. This act shall take effect immediately, and shall apply to
19 abusive conduct occurring on or after such date."

WORKPLACE BULLYING OR HARASSMENT

2011-12-15T07:25:00.001-05:00

Here is the text of the current NYS Senate Bill:

"S4289-2011 Memo
BILL NUMBER:S4289 REVISED 04/12/11

TITLE OF BILL:
An act
to amend the labor law, in relation to establishing a private cause of
action for an abusive work environment

PURPOSE OR GENERAL IDEA OF THE BILL:
To establish a civil cause of action for employees who are subject to
an abusive work environment.

SUMMARY OF PROVISIONS:
Clearly states the definitions of abusive conduct; abusive work
environment; conduct; constructive discharge; employee; employer;
malice; negative employment decision; physical harm; and
psychological harm.

Section 3 Defines Unlawful Employment Practice

Section 4 Defines Employer Liability

Section 5 Defines Defenses

Section 6 Defines Retaliation

Section 7 Defines Relief Relief Generally Employer Liability

Section 8 Defines Procedures Private Right of Action Time Limitations

Section 9 Defines Effect on Other State Laws Other State Laws Worker's
Compensation and Election Remedies

JUSTIFICATION:
The social and economic well-being of the state is dependent upon
healthy and productive employees. Surveys and studies have documented
that between 16 to 21 percent of employees directly experience
health-endangering workplace bullying, abuse and harassment, and that
this behavior is four times more prevalent than sexual harassment
alone. Surveys and studies have also documented that abusive work
environments can have serious effects on targeted employees,
including feelings of shame and humiliation, stress, loss of sleep,
severe anxiety, depression, posttraumatic stress disorder, reduced
immunity to infection, stress related gastrointestinal disorders,
hypertension, pathophysiologic changes that increase the risk of
cardiovascular disease and other such effects.

This legislation will provide legal redress for employees who have
been harmed, psychologically, physically, or economically. It will
also provide legal incentives for employers to prevent and respond to
mistreatment of employees at work.

LEGISLATIVE HISTORY:
2009-10: A.5414B Referred to Labor
2009-10: S.1823B (Sen. Morahan/Passed Senate

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

S4289-2011 Text
S T A T E O F N E W Y O R K
4289
2011-2012 Regular Sessions
I N SENATE
March 28, 2011
Introduced by Sen. SAVINO -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the labor law, in relation to establishing a private
cause of action for an abusive work environment
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
BLY, DO ENACT AS FOLLOWS:
Section 1. The labor law is amended by adding a new article 20-D to
read as follows:
ARTICLE 20-D
ABUSIVE WORK ENVIRONMENT
SECTION 760. LEGISLATIVE FINDINGS AND INTENT.
761. DEFINITIONS.
762. ABUSIVE WORK ENVIRONMENT.
763. EMPLOYER LIABILITY.
764. DEFENSES.
765. RETALIATION.
766. REMEDIES.
767. ENFORCEMENT.
768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS.
769. EFFECT OF OTHER LAWS.
S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS
THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON
HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED
THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE
RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT.
SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE
SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS
CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS
OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY,
DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO
INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08789-01-1 S. 4289 2
PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR
DISEASES.
FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN
HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE
PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND
SIGNIFICANT INCREASES IN MEDICAL AND WORKERS' COMPENSATION CLAIMS.
THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE
BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF
RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO
HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT.
THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE
WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A
PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT
UTES. EXISTING WORKERS' COMPENSATION PROVISIONS AND COMMON LAW TORT LAW
ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE
REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS.
THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR
EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM
ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND
TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO
MISTREATMENT OF EMPLOYEES AT WORK.
S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
1. "ABUSIVE CONDUCT" MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN
EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A
REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO
THE EMPLOYER'S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER
SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY,
NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT
NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE
OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT
THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI
ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE'S WORK
PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS
THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS.
2. "ABUSIVE WORK ENVIRONMENT" MEANS A WORKPLACE IN WHICH AN EMPLOYEE
IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS
ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE
PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO
ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS
TO ELIMINATE THE ABUSIVE CONDUCT.
3. "CONDUCT" MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS
TO ACT.
4. "CONSTRUCTIVE DISCHARGE" MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE
THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT.
5. "MALICE" MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO
LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI
FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS
OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN
EMPLOYER'S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND
ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR
DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF
THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT'S KNOWN PSYCHOLOG
ICAL OR PHYSICAL VULNERABILITY.
S. 4289 3
6. "NEGATIVE EMPLOYMENT DECISION" MEANS A TERMINATION, CONSTRUCTIVE
DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR
DISCIPLINARY ACTION.
7. "PHYSICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S PHYS
ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN
OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.
8. "PSYCHOLOGICAL HARM" MEANS THE MATERIAL IMPAIRMENT OF A PERSON'S
MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY
COMPETENT EXPERT EVIDENCE AT TRIAL.
S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN
EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.
S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE
EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS
CONTROL.
S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF
ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON
ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS
THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED
TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU
NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE
AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA
TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF.
2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE
WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION
WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER'S
LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON
THE PLAINTIFF'S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY
UPON THE EMPLOYER'S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS,
ILLEGAL OR UNETHICAL ACTIVITY.
S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG
ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY
PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS
CHAPTER.
S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED
IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT,
THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV
ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT
NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE
PLAINTIFF'S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL
EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND
ATTORNEY FEES.
2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN
ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT
DECISION, SUCH EMPLOYER'S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS
SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL
ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT
APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.
S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE
BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE.
2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES,
AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED
WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE
ALLEGATION OF ABUSIVE WORK ENVIRONMENT.
S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL
NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN
EMPLOYEE'S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES
S. 4289 4
GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL
THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING
AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE
MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING
AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER
RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED
COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY
THE PROVISIONS OF THIS ARTICLE.
S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE
DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL
TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION.
2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY
COMPENSATION AVAILABLE PURSUANT TO THE WORKERS' COMPENSATION LAW;
PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS' COMPEN
SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON
MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS
ARTICLE FOR THE SAME SUCH CONDITIONS.
S 2. This act shall take effect immediately, and shall apply to
abusive conduct occurring on or after such date."

WORKPLACE BULLYING OR HARASSMENT

2011-12-14T07:30:00.002-05:00

According to New York Healthy Workplace Advocates, the current Healthy Workplace Bills are S4289/A4258:

•S4289 – Fifteen Senate Sponsors

•A4258 – Seventy-Two Assembly Sponsors

WORKPLACE BULLYING OR HARASSMENT

2011-12-13T06:58:00.002-05:00

Another example is VITO v. BAUSCH & LOME INC., 403 Fed.Appx. 593 (2nd Cir. 2010):

" "In order to establish a hostile work environment . . . [Vito]
must show that the workplace was so severely permeated with
discriminatory intimidation, ridicule, and insult that the
terms and conditions of her employment were thereby altered."
Fincher v. Depository Trust & Clearing Corp.,
604 F.3d 712, 723-24 (2d Cir. 2010); see Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000).

................

"[I]t is axiomatic that in order to establish a . . . hostile
work environment . . . a plaintiff must demonstrate that the
conduct occurred because of her [membership in a protected
class]." Alfano v. Costello, 294 F.3d 365, 374 (2d
Cir. 2002) (internal quotation marks omitted). Many of the
incidents Vito claims demonstrate a hostile work environment amount to, at most, workplace
bullying completely detached from any discriminatory motive.
For example, we can discern no reason why either Shift
Supervisor Rich Goodburlet ("Goodburlet") ringing a bell in
Vito's presence or co-worker Mehmet Charlayan ("Charlayan")
throwing tape at her constitute anything more than "minor
annoyances" typical of those "all employees experience."
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Similarly,
Vito was only incidentally involved in much of the sexual
banter that allegedly took place in the department. For
example, Vito complains that she witnessed Charlayan "flicking
his tongue up and down in the direction of Deb Rock" ("Rock"),
another one of Vito's coworkers, and that "a note was placed
on Deb Rock's back indicating that she was `property.'" "

WORKPLACE BULLYING OR HARASSMENT

2011-12-12T07:22:00.002-05:00

The Healthy Workplace Bill is being proposed because federal and state laws do not cover "workplace bullying" per se. For example, in BORSKI v. STATEN ISLAND RAPID TRANSIT, 413 Fed.Appx. 409 (2nd Cir. 2011):

"In this, case, it would have been futile for the district court to permit Borski to raise his hostile work environment claim because workplace bullying, such as the behavior exhibited by Borski's colleagues in this case, does not constitute discrimination merely because it contains "sexual content or connotations." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Instead, a plaintiff must demonstrate that the offending conduct occurred because of his membership in a protected class. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). While Borski was often the target of ridicule, the record reveals no evidence whatsoever that he was targeted because of his sex. Without such evidence, his discrimination claim would necessarily have failed. See Brown v. Henderson, 257 F.3d 246, 255-56 (2d Cir. 2001). We therefore conclude that the district court properly denied Borski's crossmotion to amend his complaint."

WORKPLACE BULLYING OR HARASSMENT

2011-12-11T11:54:00.001-05:00

New York was the 9th state to introduce the Healthy Workplace Bill. On Nov. 14, 2011, WCBS-TV, NYC aired a segment about the NY bills. Watch the TV clip at this link:

Nov. 14 coverage of the NY Healthy Workplace Bills on WCBS-TV, New York City

WORKPLACE BULLYING OR HARASSMENT

2011-12-10T07:36:00.000-05:00

From the website of The New York Healthy Workplace Advocates:

"At present time, it is currently legal in the United States for an individual (usually a person in a supervisory role) to impair and/or destroy the physical and psychological well being of an employee, their social support network and career using an employer’s resources when a person is not a member of a protected status group. Current State and Federal laws only recognize an unlawful employment practice when a person is a member of a “protected status” group such as race, religious creed, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex age or sexual orientation and the employer or any person acting directly or indirectly as an agent of the employer harasses an employee. Why isn’t workplace bullying covered under current State of Federal law? Because the bully and the target are both members of a protected class, therefore the existing harassment laws are negated and the bully is free to impair the health of another person without ramifications. NYHWA and via the Healthy Workplace Bill seeks to expand current harassment law to make it an unlawful employment practice to subject an employee to an abusive workplace environment regardless of protected status membership or better defined as a “status-blind” harassment protection."

WORKPLACE BULLYING OR HARASSMENT

2011-12-09T12:12:00.001-05:00

From Wikipedia, the free encyclopedia:

"Workplace bullying, like childhood bullying, is the tendency of individuals or groups to use persistent aggressive or unreasonable behaviour against a co-worker or subordinate. Workplace bullying can include such tactics as verbal, nonverbal, psychological, physical abuse and humiliation. This type of aggression is particularly difficult because, unlike the typical forms of school bullying, workplace bullies often operate within the established rules and policies of their organization and their society. Bullying in the workplace is in the majority of cases reported as having been perpetrated by management and takes a wide variety of forms. Bullying can be covert or overt."

WORKPLACE BULLYING OR HARASSMENT

2011-12-08T07:09:00.004-05:00

The last case (Case No. 7) led me into another UI matter where the same allegations were made by the claimant: the DOL upheld the claimant's decision to voluntary separate stating that the employer's constant nagging and/or harassment gave the claimant a compelling good cause to leave. Since this matter is still pending before the ALJ stage, I cannot discuss it but it led me to research the issue of workplace bullying or harassment.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-12-07T07:24:00.001-05:00

Another old AB case on the issue of "reprimand" versus harassment:

"A-750-573
Index No. 1650C-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 27, 1944

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Disciplinary Action – Reprimand
Appeal Board Case No. 10,713-44

VOLUNTARY LEAVING OF EMPLOYMENT – DISCIPLINARY ACTION – REPRIMAND FOR ABSENTEEISM
(SECTION 593.2 OF LABOR LAW)

Resentment because of deserved reprimand for repeated absences from work was not good cause for voluntary leaving of employment.

Referee’s Decision: Initial determination disqualifying claimant for voluntary leaving of employment without good cause is overruled. (3/29/44)

Appeal By: Industrial Commissioner

Findings of Fact: Claimant worked for about seven years prior to January 15, 1944 as a switchboard operator, clerk and receptionist for a public utility. She always resided in New Rochelle. Prior to June 1943 claimant was stationed at the main office of the company located at Mt. Vernon. Subsequent to June 1943 claimant was transferred to the employer’s branch office at Pelham. Claimant used her husband’s automobile to travel to her place of employment at Pelham, which was located about four or five miles from her residence. About ten minutes’ time was consumed in traveling to the establishment. At the time of her voluntary separation on January 15, 1944 claimant earned $31.32 a week. Claimant filed an application for benefits on January 18, 1944 and reported to March 14, 1944. When claimant filed her claim she gave as the reasons for her separation "inconvenience and dampness." The employer certified to the local office that claimant "resigned – dissatisfied with working conditions." Claimant was called in for an interview at the local office on February 2, 1944 relative to the reasons for her voluntary leaving. At this conference claimant signed a statement that she left her employment because the dampness and gas odors in the employer’s establishment at Pelham caused her to have constant colds and to be sick during the winter and because of the inconvenience of traveling to the place of employment. She also stated that she had received medical treatment on several occasions from the company’s doctor and her personal physicians for colds and that the doctor in the plant directed her to remain home until she recovered. On February 3, 1944 the local office mailed a letter to the company’s physician requesting information relative to the working conditions in the establishment and whether they adversely affected claimant’s health. The personnel director of the employer, in writing, informed the local office on February 9, 1944 that the working conditions in the plant were not injurious to claimant’s health, that claimant had consulted the company’s physician on only one occasion in November 1943 when claimant was suffering from the grippe and that claimant stayed out of work about five days due to such illness. On February 8, 1944 the local office issued an initial determination holding that claimant voluntarily left her employment without good cause. The employer’s records disclose that claimant absented herself from work due to colds and minor ailments for seventeen days subsequent to her transfer to the Pelham office. It was the policy of the employer to review from time to time the attendance records of employees showing frequent absences with the view of counseling them to improve their punctuality. On January 9, 1944 claimant was called in for a conference by the personnel manager relative to her frequent absences from work. On this occasion claimant was advised to improve her attendance record and was admonished that a continued unsatisfactory record in this respect might result in her release. Claimant resented such treatment from the personnel manager. She considered the latter’s statements as a severe reprimand coupled with an invitation to resign. On January 10, 1944 claimant submitted a letter of resignation to the employer. In this letter claimant set forth as the reasons for her voluntary leaving that the establishment was in a very inconvenient location, that her supervisor denied her request to take a half hour for lunch on Wednesday, that he was discourteous to her when she took time off to attend her grandmother’s funeral, that he discriminated against her and that the dampness in the plant adversely affected her health. Claimant’s primary reason for her voluntary separation can be gleaned from her testimony as follows:

"Q. So you say that summing the whole thing up, you left because Mr. M. spoke to you and complained about your frequent absences and told you if you didn’t improve you would be forced to resign, and you felt the absences were not you fault, and you had no control over it and felt that was an invitation to quit. Is that what you say?

A. That’s right. The different times I had been out, I thought I should resign. I was thinking it over. Then I was determined when Mr. M. spoke to me and told me I would more or less be forced to resign.

Q. All these other things were just incidental, but they weren’t compelling reasons?

A. Absolutely not." (S.M. 27)

On January 31, 1944 claimant was referred by the United States Employment Service to a job as switchboard operator and clerk. Claimant reported to the prospective employer but she was not hired because she did not have enough experience. On February 2, 1944 claimant was referred to a job as a typist paying from $20 to $25 a week depending on the skill of the applicant in an accountant’s office in New Rochelle. Claimant refused the referral because she lacked a sufficient amount of experience as a typist. On February 16, 1944 claimant was referred to a job as a switchboard operator paying from $22 to $24 a week at a country club in New Rochelle. Claimant refused to accept this referral because she is too nervous to work at a switchboard. On February 23, 1944 claimant was referred to a job as general clerk paying $100 a month in an establishment at Tuckahoe. Claimant refused to accept this referral because she was unwilling to work outside of New Rochelle and because the climate in Mt. Vernon is damp. She admitted she was seeking employment in Pelham and was awaiting word momentarily relative to an application for a job there. On February 18, 1944 the local office issued an initial determination holding that claimant voluntarily left her employment without good cause and under circumstances indicating a withdrawal from the labor market. On the same date it issued another determination holding that claimant, without good cause, refused to accept a referral to employment on February 16, 1944. On March 6, 1944 the local office issued another determination holding that claimant, without good cause, refused to accept two referrals to employment on February 23, 1944.

Appeal Board Opinion: The referee held that claimant’s voluntary leaving was with good cause because claimant’s testimony that her health was adversely affected by the unfavorable working conditions in the plant is entitled to credence. The referee’s conclusion that this was the primary cause of claimant’s leaving lacks support in the record. Claimant’s testimony is that she resented the statements made by the personnel manager relative to her frequent absences from the plant and that she resigned because she felt that the treatment received from him was unwarranted. Upon her own admission this was the primary cause of her voluntary leaving and the other reasons enumerated by her were merely incidental thereto. Even if we accepted claimant’s primary reason for leaving that the personnel manager’s reprimand was unwarranted, it will not avail this claimant. We dealt with a somewhat similar situation in Appeal Board, 7464-42 in which we said:

"The general principles applicable to the instant facts are very aptly summarized in a paper entitled ‘Issues Involved in Decisions of Disputed Claims for Unemployment Benefits,’ reprinted from the Social Security Year Book, 1940, prepared by the Social Security Board of the Federal Security Agency:

‘ * * * A claimant who leaves because of a reprimand is usually considered not to have good cause for so doing, especially if the reprimand is deserved and reasonable; however, when the reprimand is extreme or unwarranted, good cause is often found. Thus, a New Jersey case (Benefit Series, 3042-N.J.A.) held that a claimant who left because he became discouraged by adverse comments of the employer had good cause for leaving when the criticism was not constructive. On the other hand, in a Rhode Island case (Benefit Series, 1812-R.I.A.) a claimant was found not to have good cause for leaving when, although the employer was hard to get along with and did not use the best language in delivering his frequent reprimands, the claimant’s trouble was due to her own conduct and failure to meet the requirements of the job.’"

The personnel manager’s admonition to claimant to improve her attendance record cannot be regarded either as a reprimand or as an invitation to resign. The personnel manager merely carried out the established policy of the company in dealing with employees who absented themselves frequently from work. The direct cause of claimant’s voluntary leaving was her own arbitrary act and did not constitute good cause within the meaning of the Law.

Decision: Initial determination disqualifying claimant for voluntary leaving of employment without good cause is sustained. The decision of the referee is reversed. (7/31/44)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-12-06T08:36:00.001-05:00

Of course, not every "reprimand" constitutes harassment:

"A-750-400
Index No. 1650D-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 13, 1943

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances – other
Appeal Board Case No. 7927-42

VOLUNTARY LEAVING OF EMPLOYMENT – DISSATISFACTION WITH EMPLOYER’S METHOD OF OPERATION
(SECTION 506.2 OF THE LABOR)

Dissatisfaction with employer’s reasonable method of operation of business was not good cause for voluntary leaving of employment.

Referee’s Decision: Initial determination disqualifying claimant for voluntary leaving of employment without good cause is sustained. (9/18/42)

Appeal By: Claimant

Findings of Fact: Claimant worked for an employer engaged in defense work for six months prior to January 16, 1942. Claimant was dissatisfied with the manner in which the employer’s establishment was operated. He contended that the piece-work rates were low, that he lost time being transferred from one machine to another, that he had to be satisfied with $35 a week while other employees earned $75 a week, and that he was not given credit for spoiled work. On January 9, 1942 claimant requested his superior to assign him to a sixteen-hour daily work schedule. This request was denied. On January 16, 1942 claimant was reprimanded for mixing good work with twelve pieces of scrap in order to obtain credit for the spoiled work. After this incident claimant voluntarily left this employment, although he had no prospects for other employment. It was a rule in the establishment that employees would not receive in excess of their basic rate for work which was spoiled through their own carelessness.

Appeal Board Opinion: Claimant voluntarily left his employment because he was dissatisfied generally with the manner in which the employer operated the establishment. The rules in the plant were not unreasonable and applied to all of the employees alike. Furthermore, it does not appear that claimant’s piece-work rate was substantially less favorable than the wages prevailing for similar work in the locality. Claimant’s reasons for leaving his employment do not constitute good cause within the meaning of law.

Decision: The initial determination disqualifying claimant for voluntarily leaving his employment without good cause is sustained. The decision of the referee is affirmed. (12/14/42)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-12-05T08:07:00.002-05:00

The Appeal Board Electronic Interpretation Service also lists the following cases regarding "constant nagging" and/or harassment under the heading "1650. Grievances and objections - Action of employer or fellow employee (annoyances)":

"False accusations or constant insinuations made by the employer that claimant is dishonest may constitute good cause for voluntary leaving. (A.B. 13,297-46)

When working conditions become intolerable because of continuous friction with supervisor, good cause may exist for voluntary leaving. (A.B. 12,979-46)

Mere inability to get along with supervisor (clash of personalities) is not good cause for voluntary leaving. (A.B. 13.010-46)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-12-04T13:43:00.000-05:00

Another early case from 1953 on the issue of "constant nagging" and/or harassment:

"A-750-1243
Index No. 1650A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 25, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances and Objections
Action of Employer
Appeal Board Case Number 39,427-53

VOLUNTARY LEAVING – IMPUGNMENT OF HONESTY AND INTEGRITY BY EMPLOYER

Incompatibility with an employer ordinarily does not constitute good cause for a voluntary quit unless accompanied by factors such as resulting impairment of the claimant’s health or impugnment by the employer of claimant’s honesty and integrity.

Referee’s Decision: The initial determination disqualifying claimant for 42 consecutive days on the ground that she voluntarily left her employment without good cause and the alternative initial determination holding claimant unavailable for employment, effective June 19, 1953 are sustained. (July 28, 1953)

Appealed By: Claimant

Findings of Fact: Claimant, a knitting instructress, was thus employed with a retail yarn store in the Bronx for 22 years to May 22, 1953. Her terminal salary was $76 per week. Due to unfavorable business conditions, disagreements arose from time to time between the claimant and the employer’s wife. Such differences were precipitated by remarks of the latter pertaining to the expense incurred by the firm in operating the instruction department of which claimant was supervisor. During the final portion of claimant’s employment, the employer’s wife on several occasions accused claimant of giving instructions in knitting to persons who were not patrons of the store, which claimant considered accusations of dishonesty. Following the last of such accusations she resigned from her position. Claimant filed for benefits effective May 25, 1953 and registered for employment. On June 19, she refused employment in her occupation at $60 to $65 for a six-day week because of the rate and the hours. Claimant was on vacation from June 24 through July 18, 1953. Thereafter, her efforts in search of employment consisted of one or two personal contacts, resulting in one week of employment commencing September 14, 1953. Claimant left that employment voluntarily and became engaged in self-employment. Based on interviews with the claimant and a report received from her previous employer, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 consecutive days effective May 24, 1953 on the ground that she voluntarily left her employment without good cause. A second initial determination was issued by the local office disqualifying claimant from receiving benefits, effective June 19, 1953, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. An initial determination was issued, in the alternative, holding claimant ineligible to receive benefits, effective June 19, 1953, on the ground that she was unavailable for employment. Claimant protested and requested a hearing before a referee. The referee overruled the initial determination disqualifying her from receiving benefits, effective June 19, 1953, for refusal of employment. No appeal was taken from that portion of the referee’s decision. The referee sustained the remaining initial determinations. Claimant appealed from the portion of the referee’s decision adverse to her.

Appeal Board Opinion: The referee, in sustaining the initial determination pertaining to claimant’s voluntary leaving of her employment, concluded that the objections which prompted her resignation were personal and not compelling. We do not subscribe to this view. Ordinarily, incompatibility existing between an employee and an employer would not be justification for voluntarily leaving employment, unless it were shown that such differences impaired the employee’s health. In the instant case, although the latter element is lacking, we are persuaded that claimant nevertheless was justified in voluntarily leaving her employment since her honesty and integrity were impugned. Concededly, claimant was on vacation from June 24 through July 18, 1953 and ineligible to receive benefits for that period. After July 18, 1953 her efforts in search of employment were of a mere token nature. Claimant made only limited personal contacts in an effort to gain employment during that period. Her resignation from employment after working only one week, in order to engage in self-employment, is further evidence of her tenuous attachment to the labor market at that time. Upon all the facts and circumstances herein, we are convinced that claimant voluntarily left her employment with good cause but that she was unavailable for employment commencing June 24, 1953, when she went on vacation.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for 42 consecutive days, effective May 25, 1953, on the ground that she voluntarily left her employment without good cause, is overruled. The alternative initial determination of the local office, holding claimant ineligible to receive benefits, effective June 19, 1953, on the ground that she was unavailable for employment, is modified by fixing the effective date thereof as June 24, 1953 and, as so modified, is sustained. The decision of the referee is modified accordingly. (December 24, 1953)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-12-03T10:56:00.001-05:00

This case is from 1983 on the issue of "constant nagging" and/or harassment:

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 30, 1983

Interpretation Service - Benefit Claims
VOLUNTARY LEAVING
Grievances and Objections
SUPERVISOR'S USE OF PROFANITY

A supervisor's continuing use of abusive profanity when reprimanding the claimant, despite complaints to the employer, provides good cause for voluntary leaving of employment.

A.B. 337,447

FINDINGS OF FACT: Claimant, a general laborer, was employed by a frozen foods company for approximately eight months until April 24, 1982. During the course of his employment, claimant's supervisor developed a pattern of reprimanding the claimant and using profanities and foul language. The final incident occurred when the claimant did maintenance work on some of the employer's equipment, a job which the supervisor believed to be his own responsibility. In reprimanding the claimant, his supervisor engaged in the same pattern of profanity which he had previously used toward claimant during his employment. On at least two occasions, claimant complained to the employer and requested to be moved to another job. No action was taken by the employer. Claimant subsequently resigned his employment because he was unable to tolerate the supervisor's abusive language.

OPINION: The credible evidence now before the Board establishes that the claimant resigned his employment because he could not tolerate the abusive language directed towards him by his supervisor. The fact that claimant remained in this employment situation despite a developing pattern of abusive profanity, and requested a transfer to another job indicates a valid effort to retain his employment. However, the claimant was not obliged to continue to subject himself to his supervisor's profanity and abuse in order to safeguard his employment. Even if the employer's contentions were true, that claimant's supervisor addresses all of his subordinates in a like manner, this does not operate to deprive claimant of a valid basis for resigning his employment. Accordingly, we conclude that claimant's separation from his employment occurred under non-disqualifying conditions because he did have good cause to resign his employment.

DECISION: The initial determination of the local office is overruled. The decision of the administrative law judge is reversed.

COMMENTS

It is an employer's prerogative to criticize or reprimand an employee, and resentment of a reprimand usually is not good cause to voluntarily leave employment.
However, good cause may exist when the reprimand:bears no relation to the claimant's work or to reasonable work rules, but is directed instead at the claimant's personal characteristics or private life; or exceeds the bounds of propriety by casting aspersions upon the claimant's integrity, making insulting personal references, including name calling, or employing profanity when such language is not customarily used by most workers in the industry or workplace; or adversely affects the claimant's health, even if the criticism is otherwise proper, if there is medical substantiation that the claimant's physical or mental well being is threatened; provided the claimant in each of these situations has informed the employer but obtained no relief."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-12-02T08:06:00.001-05:00

This is the case cited by the ALJ in its decision. The case is from 1952:

"NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 2, 1952
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances and Annoyances
Referee’s Case Number 51-325-52R

VOLUNTARY LEAVING OF EMPLOYMENT – CONSTANT NAGGING AND CRITICISM
Constant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee’s voluntary leaving of employment.

Referee’s Findings of Fact: A hearing was had at which claimant and representatives of the employer and the Industrial Commissioner appeared. Testimony was taken. Claimant, a porter, filed a claim effective April 28, 1952. By initial determination effective the same date, he was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was employed at a club operated by a fraternal organization from August 7, 1951 to April 25, 1952, at 90 cents per hour, as a porter. He voluntarily left his employment on the latter date because the building superintendent was constantly criticizing his work and used vile and obscene language in addressing him. He indicated that he was unable to perform the work to the satisfaction of the superintendent who constantly nagged him regarding his work. The employer notified the insurance office that claimant had quit: "Work not satisfactory and we are just as pleased that he did quit of his own accord."

Referee’s Opinion and Decision: It is clear that the superintendent was dissatisfied with claimant’s services and, apparently, was desirous of terminating his services. Claimant quit his job because he felt that he could no longer endure the criticism and nagging of the superintendent. In Consiglio v. Administrator, Unemployment Compensation Act, 137 Conn. 693, 696 (Conn. Sup. Ct., VL-500.752-7, BSSUI.) The Court in part said:

"Is an employee justified in quitting his job because of nagging? That, it seems, would depend upon the extent and nature of the nagging. Goldberg testified, ‘I just couldn’t stand it anymore. I was afraid I was going to get very sick and I just couldn’t stand it.’ It is found by the Commissioner that ‘For a period of four or five months prior to February 20, 1951, the senior partner was finding fault with the claimant’s work but the claimant knew that most of the fault finding was meaningless.’ This latter statement is based, apparently, on what the son testified. Nagging may be meaningless to the fellow doing it but not necessarily to the fellow on the receiving end. It is evident that Goldberg was much concerned about the constant fault finding for the last four or five months of his employment. Did he act as a reasonable person would have acted in the light of all the circumstances in quitting his job?

"There is a difference between legitimate criticism and nagging. Criticism may be justified; it can finally, if kept up long enough, degenerate into a constant nagging. There is a limit to what a man is obliged to take in order to hold his job. It is evident that there was nagging. The claim is that he was supposed to take it, everybody did; that it was meaningless. We must use common sense in deciding this matter of extent to which the employees must take it. He can be flighty or he can be patient till finally the situation becomes unbearable. No employee should have to take constant nagging. In this case it was clearly not a quick temper or impulsive decision which made the employee quit. No sensible man is giving up a $135 a week job merely because he is sore or angry. An employer can be so mean as to drive an employee off the job. The claim that you are supposed to take it is not a sufficient answer."

The same reasoning applies in this case and I conclude that claimant was justified in voluntarily leaving his employment. The initial determination is overruled. (August 8, 1952)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-12-01T08:13:00.001-05:00

It is interesting as to the different theories that upheld the claimant's eligibility for benefits. Recall that in my application to reopen the default, my position was as follows:

"It appears that the Claimant did not quit but was terminated due to inadequate performance as the result of inability, viz., after several verbal warnings, she was instructed to sign a letter that if she did not make quota that week, it will result in termination. She did not make her sales quota that week. Even assuming all of the allegations of the employer: a worker who voluntarily leaves his or her employment in the face of disciplinary charges may qualify for benefits if his or her actions did not constitute misconduct (See Matter of Riley, __ AD3d __ [Decided May 22,2008], Matter of Straw, 32 AD3d 1098, Matter of Jiminez, 20 AD3d 843) and if an employer offers a choice of dates for terminating the employment: a claimant does not become subject to a disqualification for voluntary leaving by a selection of the earlier of two dates since exercising such option does not make the separation voluntary. (A.B. 141,874; A-750-1687; similarly, App. Div., Matter or Ziembiec, 62 A.D. 2d 1105)"

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-30T07:47:00.002-05:00

Page 3 of the decision.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-29T09:18:00.001-05:00

Page 2 of the decision.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-28T07:51:00.002-05:00

Page 1 of the decision.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-27T08:56:00.003-05:00

The hearing then continued with my examination of the claimant and the claimant's testimony has to how the claimant was terminated (described in detail in the decision) and that the claimant did not quit. The ALJ also examined the claimant. The employer did not attend. The hearing lasted less than one hour and, after my closing argument, the ALJ advised that a decision would be issued.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-26T10:15:00.002-05:00

After submitting the Notice of Protest on March 21 that the claimant quit, the claimant completed a questionnaire online (Exhibit 3) stating that the claimant was fired but when the DOL attempted to interview the claimant on April 4, the DOL received no response (Exhibit 4). The DOL then interviewed the Employer by telephone (Exhibit 2) on May 17 and ostensibly based the adverse determination on that.

If there is a lesson to claimants in this, it is to always respond to DOL investigations and phone calls.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-25T09:32:00.002-05:00

In determining how this issue arose, it is important to note that when the claimant filed a claim for unemployment, an investigation by the DOL began with the employer submitting a Notice of Protest that the claimant quit.

HAPPY THANKSGIVING

2011-11-24T10:20:00.002-05:00

President Lincoln (a lawyer) declared Thanksgiving a national holiday in 1863.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-23T08:41:00.003-05:00

The TCC 413 Summary of Interview with claimant was Exhibit 4 and it explains why the claimant was initially denied benefits by the DOL.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-22T07:41:00.002-05:00

Page 2 of Exhibit 3.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-21T08:17:00.001-05:00

Page 1 of Exhibit 3.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-20T14:48:00.001-05:00

Exhibit 3 was Form T433.9, the questionnaire given by the DOL to a claimant whose claim is under investigation. In this case, the form was completed by the claimant on line.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-19T13:02:00.002-05:00

Note that in Exhibit 2, among other things, the employer contended that:

1. The claimant resigned and that the employer implied that it had a copy of the recording on email.

2. The claimant wanted to get fired but resigned instead.

3. Continuing work was avilable to the claimant.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-18T07:37:00.001-05:00

The TCC 413 Summary of Interview with Employer was Exhibit 2.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-17T06:25:00.002-05:00

Exhibit 1 was the Application To Reopen Default decision, previously posted, and testimony was given by the claimant with respect to that issue. Then, testimony began on the issue of voluntary separation with the ALJ asking the claimant some preliminary questions.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-16T07:36:00.002-05:00

My interpretation of Appeal Board decisions is that the claimant must establish by credible evidence that the claimant is entitled to benefits. Thus, even though the employer did not appear at the hearing, it was the claimant's duty to establish by credible evidence that the claimant did not voluntarily separate without good cause. The hearing began with the standard introductions as to how the hearing would proceed, the ALJ asked myself and the claimant if we were ready to proceed, we said yes, and the hearing began.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-15T06:07:00.001-05:00

The claimant and I met before the hearing, re-prepared for testimony, evidence, etc. and then were called in. The employer did not appear.

MORTGAGE FORECLOSURE CLINIC FOR HOMEOWNERS

2011-11-14T07:45:00.002-05:00

Today I will be a volunteer attorney at the Nassau County Bar Association Free Mortgage Foreclosure Clinic, described as follows from their website:

"FREE Mortgage Foreclosure Legal Consultation Clinics

Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County.

Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources.

In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance.

→ Reservations are required by calling the Bar Association at 516-747-4070. Attorneys fluent in other languages are available upon request when reserving.

All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-13T19:39:00.003-05:00

The notice of hearing - note that in addition to the issue of voluntary separation is the issue of the application to reopen:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-12T08:23:00.001-05:00

The notice of hearing was sent to both myself and the claimant abput a week before the hearing date: September 27 at 10:15.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-11T10:23:00.002-05:00

I also wrote the claimant as follows:

"We will meet at the hearing office an hour before the hearing. I have all the information I need for the hearing date - again, I feel this may take more than one hearing as I need to have the court subpoena certain documents."

If the employer was contesting this claim, I would need the ALJ to subpoena the following documents:

1. The alleged voicemail from claimant.

2. The alleged "final warning" the claimant stated was given to the claimant a week before the employment was terminated.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-10T07:24:00.002-05:00

When an application to reopen is made, there is an inherent time delay in scheduling because the claimant's files have to transfer from one ALJ office to another before a new hearing can be scheduled. The application to reopen was made on June 15. In August, I was able to schedule a new hearing for September 27, which was a date the claimant was available.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-09T07:38:00.002-05:00

Here is the application to reopen (the default decision was the 2 page attachment):

"June 15, 2011

VIA FAX– 3 PAGES

UNEMPLOYMENT INSURANCE APPEAL BOARD
400 Oak Street
Garden City, NY 11530

Re: ALJ XXXXXXXXX: IN RE: XXXX

Gentleman:

I am representing the claimant. On behalf of the claimant, the claimant hereby applies to reopen the attached decision.

The claimant defaulted due to the fact XXXX desired an attorney. After contacting me, I began to investigate XXXX claim and discovered that the Claimant has a meritorious claim. It appears that the Claimant did not quit but was terminated due to inadequate performance as the result of inability, viz., after several verbal warnings, XXXX was instructed to sign a letter that if XXXX did not make quota that week, it will result in termination. XXXXX did not make XXXX sales quota that week. Even assuming all of the allegations of the employer: a worker who voluntarily leaves his or her employment in the face of disciplinary charges may qualify for benefits if his or her actions did not constitute misconduct (See Matter of Riley, __ AD3d __ [Decided May 22,2008], Matter of Straw, 32 AD3d 1098, Matter of Jiminez, 20 AD3d 843) and if an employer offers a choice of dates for terminating the employment: a claimant does not become subject to a disqualification for voluntary leaving by a selection of the earlier of two dates since exercising such option does not make the separation voluntary. (A.B. 141,874; A-750-1687; similarly, App. Div., Matter or Ziembiec, 62 A.D. 2d 1105)

Accordingly, I request a hearing at the Garden City office at a date and time mutually convenient.

Sincerely,

Jon M. Probstein

Cc: XXXX"

VOTE!

2011-11-08T07:50:00.002-05:00

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-07T07:36:00.001-05:00

Page 2 of the default decision.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-06T13:16:00.002-05:00

The claimant sent me a copy of the default decision. It appeared that the ALJ recorded me as the attorney of record. Page 1 of the default decision.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-05T08:02:00.002-04:00

The remaining pages of my form retainer deal with the Appeal Bioard rules on fees and copies of the papers required by the Appeal Board for fees. The claimant signed the retainer agreement and the next step was to make an application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-04T08:41:00.001-04:00

The third page of the attachment to my form retainer:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-03T06:48:00.002-04:00

The second page of the attachment to my form retainer:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-02T07:32:00.000-04:00

The first page of the attachment to my form retainer:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-11-01T07:14:00.001-04:00

Here is page 2 of my form retainer:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-10-31T07:23:00.002-04:00

I agreed to take on the case. A retainer agreement was sent out. It is a 2 page document but with 9 pages of attachments. Here is page 1 of my form retainer:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-10-30T09:34:00.001-04:00

The next day I received the following email from the claimant:

"I attended the hearing today. I believe I am just waiting now to see if you will take my case. I did mention your name to Judge XXXX that I would be using you as my counsel if you do. Thank you again."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-10-29T10:55:00.002-04:00

As per my instructions, the claimant emailed back a detailed description in diary form, with names, dates, etc., of three instances over a six month period in which claimant was given warnings of termination for failure to meet sales quotas, including a recollection of signing a document acknowledging that if claimant did not meet sales quota for that week, claimant would be terminated. The claimant was not given a copy of that document nor was it in the DOL file.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-10-28T06:09:00.002-04:00

Since I still needed time to investigate, resarch, etc. and the hearing was the next day, I instructed the claimant as follows:

"Hi:

Just to confirm our conversation:

1. Attend the hearing tomorrow and tell the judge that you are consulting with an attorney and do not wish to proceed and that you will make an application to reopen after you consult with counsel. You may give the judge my name if he asks who you are consulting with.

2. You will give me a time line diary of the incidents regarding your discussions, etc. regarding failure to meet quotas and job jeopardy.

3. Also, you will give me, to the best of your recollection, a detailed statement of what you recall the letter stated that you signed."

NASSAU COUNTY PRO BONO FAIR

2011-10-27T06:59:00.002-04:00

Today from 3-7 p.m. at Nassau County Bar Association (I will be there from 5-7pm).

Nassau residents can meet with an attorney one-on-one for legal guidance. Registration required: 516-747-4070.

LINK TO PRO BONO FAIR FLYER

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-10-26T06:49:00.001-04:00

Of course, when the DOL investigator contacted the employer, there was a response. Here is the summary of interview:

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

2011-10-25T07:51:00.003-04:00

As noted in the Summary of Interview posted yesterday, the DOL investigator represents that the message to the claimant "included the information that failure to respond in a timely manner will result in a determination based upon available information"