UNEMPLOYMENT INSURANCE BENEFITS - MISCONDUCT

This came up the other day with a client so I am posting this again. Naturally, you can be fired by your employer for misconduct. But the level of "misconduct" that the employer claims you were engaged in may be different than the level of "misconduct" that would deny you unemployment insurance benefits. You must look at the two issues as being two different issues. When you have been discharged, and seek unemployment benefits, only to be denied because your employer alleged misconduct: remember to request a hearing. The hearing is not whether or not you should get your job back but whether you are entitled to job benefits. The allegations of your employer may be disputed by you but again, the standard of misconduct that you are held to for benefits can be different than the standards utilized by your former employer. Under Section 593.3, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. (See Field Memo 2-99 for further detail. The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion.

On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness.