UNEMPLOYMENT INSURANCE - LANGUAGE IN THE WORK PLACE

I have two interesting cases coming up this week with the Unemployment Insurance Appeals Board involving the use of language in the workplace and thought I would mention an interesting article I found on the Internet from Rea & Associates, Inc.
January 18, 2009 entitled "Take Steps to Clean Up Workplace Profanity":

"Vulgar or inappropriate language in the workplace is rising and along with it an increasing number of court filings and complaints to human resources departments and the Equal Employment Opportunity Commission (EEOC).

If your company doesn’t have a specific language code, take steps to include one in your employee handbook, along with policies against sexual harassment and discrimination. The use of inappropriate language can cost your company in lawsuits — not to mention the bad image your firm can get if employees use profanity around customers and suppliers.

Many people believe that a general coarsening of society — demonstrated by the rising use of formerly prohibited language on television, films and music — is partly to blame for the increase in vulgar language at work. Regardless of the cause, taking steps to avoid the pitfalls is clearly warranted.

When writing your policy, you need to ban two major categories of words:

Slurs including all racial, ethnic, religious, and gender-based insults.

Slang including jargon used to describe sexual acts, body parts and bodily functions.

Simply prohibiting sexual harassment and discrimination in your employee handbook is not sufficient. Although those policies may address vulgar or obscene language, many companies find that the guidelines aren’t broad enough to cover the potential problems linked to inappropriate language.

For example, when bad language is pervasive, it can create an uncomfortable, hostile or intimidating work environment, leaving your company open to accusations of harassment and discrimination, as well as expensive, time-consuming and needless litigation.

Take the proactive step of setting up a formal code that outlines both prohibited language and the disciplinary measures that will be taken. This can preempt potential lawsuits and strengthen your company’s position if legal action is taken.

But you must enforce the policy. Make it clear that offensive language won’t be tolerated. Failing to do so can make a company seem indifferent to employee concerns and less sympathetic to a jury if a complaint gets that far. Beyond the legal threat, claims of harassment or discrimination tend to require time and energy to investigate and often lead to negative publicity.

Free Speech?

A strong policy against the use of vulgar language has little down side in the private sector.

The First Amendment does limit actions taken by the government to restrict free speech, but it doesn’t come into play with private employers.

Although it's common to talk about First Amendment rights in the workplace, the Constitution doesn't address such situations."

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

Let's explore a recent 3rd Department case on the issue of Voluntary Separation which would be MATTER OF KELLY v. COMMISSIONER OF LABOR, 2009 NY Slip Op 06477 (Appellate Division of the Supreme Court of New York, Third Department. Decided and Entered: September 17, 2009). This was an appeal from a decision of the Unemployment Insurance Appeal Board which ruled that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause. The claimant appeared pro se. The findings of fact were as follows:

"Claimant worked as a client relationship manager for a software development company from May 2006 until September 2007. He initially entered into a contract with the company under which he was to be paid on a commission basis with a $4,000 monthly draw. That arrangement was changed in November 2006 at which time the monthly draw was eliminated after claimant was absent from work and nonresponsive to clients. Claimant continued to work for the company until receiving his last commission check on September 17, 2007. Dissatisfied with the amount of that check, he left his job. The Unemployment Insurance Appeal Board disqualified him from receiving unemployment insurance benefits on the basis that he voluntarily left his employment without good cause."

The court affirmed the Appeals Board holding:

"It is well settled that dissatisfaction with wages does not constitute good cause for leaving employment for purposes of receiving unemployment insurance benefits (see Matter of Strader [Commissioner of Labor][2008]; Matter of Feliciano [Commissioner of Labor][2007]). Likewise, the failure to take steps to protect one's employment by giving the employer an opportunity to remedy any problems will also result in disqualification (see Matter of Crawford [Commissioner of Labor][2008]; Matter of Warmsley [Commissioner of Labor][2006]). In the case at hand, claimant was clearly unhappy with his compensation as he filed a complaint with the Department of Labor asserting that he was being paid less than minimum wage. Although claimant maintained that he communicated his concerns to the employer prior to the time that he quit, the employer's representative stated that he did not recall such a conversation. Such conflicting testimony presented a credibility issue for the Board to resolve (see Matter of Soto-Harold [Commissioner of Labor][2008]). In view of this, and considering that claimant admitted to voluntarily leaving his job, substantial evidence supports the Board's decision."

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

Returning to case law on voluntary separation, sometimes, a re-arrangement of working hours can establish "good cause" for quiting:

Refusal to accept a transfer to day shift employment when due to reasons of personal convenience, is not good cause for voluntary leaving employment notwithstanding a change in the contract of hire since claimant would not have been justified in refusing such employment in the first instance. (A.B. 47,364-54; )

A change in starting time from 6:30 a.m. to 8:00 a.m. does not provide good cause for voluntary leaving of employment (Matter of Sybell, 14 A.D. 2d 981)

Genuine and reasonable fear for personal safety constitutes good cause for refusing or leaving employment requiring, walking through dark and deserted streets late at night. (A.B. 148,046; )

In the absence of an employee objection, a 30-minute lunch period in a factory or mercantile establishment is permissible without application to the Industrial Commissioner pursuant to Section 162 of the Labor Law and therefore cannot avert disqualification because of a separation for unrelated reasons. (A.B. 155,946; )

Desire not to continue working Saturday nights in accordance with custom as a salesperson in a retail store, was not good cause for voluntary leaving of employment. (A.B. 12,595-45; )

Voluntary leaving is with good cause despite the fact that child care is available, when claimant, a single parent, is permanently assigned to a shift that precludes her from spending any time with her children. (A.B. 390,586;

UNEMPLOYMENT INSURANCE - HEARINGS

I notice this is on the Appeal Board website on their FAQ section regarding hearings:

"PROPER BEHAVIOR IS EXPECTED FROM EVERYONE WHO ATTENDS A HEARING. Violence, threats or insults will not be tolerated."

Even after consulting with Claimants as to the proper behavior at a hearing, at times, all is forgotten and some Claimants begin to act as "Claimants Gone Wild": they do not listen to the judge, they interrupt the judge, they shout at the other side, they make noises of disgust, etc.

Of course, this is wrong. As an attorney, we can lead the horse to water but not force it to drink. We will advise you as to how to behave at a hearing and prepare you but you will bear the ultimate responsibility for your own behavior and testimony. Although these are administrative hearings, the Administrative Law Judge should be treated with the same respect and courtesy as any other judge. I urge all Claimants, whether represented by counsel or not, to disregard what you see on TV and movies: that is fiction. A UI hearing should not be confused with an episode of Judge Judy.

UNEMPLOYMENT INSURANCE - NCBA MORTGAGE FORECLOSURE CLINIC

Yesterday, maybe because of the rain, maybe because of some other reason, although over 30 people signed up for the NCBA Mortgage Foreclosure Clinic, only about half showed. Remember, and this is from the NCBA website: " 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 between 9:30 a.m. - 4:30 p.m. Scheduled 2010 Clinics: March 18, April 12, May 10, June 15. All clinics 4-6 p.m.

UNEMPLOYMENT INSURANCE - ATTORNEY FEES

A recent consultation revealed the following: Claimant was receiving benefits and the employer's objections were found not credible by the DOL. Employer requests a hearing. Claimant wants representation and is explained how attorneys fees work as per the Appeals Board rules. But then Claimant comes up with an interesting statement: "Why should I have to pay anything? My employer makes this worthless claim just to harass me and I have to pay a legal fee to defend myself? Why doesn't he pay my fees?" The answer can generally be found in Wikipedia which notes that "most countries operate under a "loser pays" system, sometimes called the English rule. Under the English rule, the losing party pays the successful party’s attorney fees (please note that the award is referred to as "attorney fee" as the fees do not belong to the attorney, but to the prevailing party), as well as other court costs. The United States is a notable exception, operating under the American rule, whereby each party bears its own legal expenses....A number of federal laws provide for an award of attorney fees for a prevailing plaintiff....Most states have statutes under which attorneys' fees may be awarded to a prevailing plaintiff, such as an action on a contract where the contract contains a provision allowing recovery, or an action brought under consumer protection laws. Both plaintiffs and defendants are sometimes awarded attorneys fees in divorce and child custody actions....A majority of states allow generally for an award to any party in a lawsuit, if another party has forced him to expend money on attorneys fees to defend against a claim utterly or substantially lacking any possible merit (frequently called "abusive litigation")". Unfortunately, in New York, the Unemployment Insurance Law does not have such a provision and I have not found a case where the "abusive litigation" rule has been applied to administrative hearings. I would be interested to hear if anyone else has.

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

Health issues may establish "good cause" for a voluntary separation but as these cases demonstrate from the Appeals Board web site, proof must be supplied and you must have exhausted all means to continue employment:

Working conditions which adversely affected health constituted good cause for voluntary leaving of employment. (A.B. 6275-41; )

Physical inability to continue former work does not constitute good cause for voluntarily leaving employment when claimant fails to exercise the right, provided under the union agreement. of demanding work not detrimental to her health, being performed by others with less seniority. (A.B. 33,924-52; )

Claimant, whose health was adversely affected by her work but who refused transfers
to locations which would overcome the objections and at similar work, was held to have voluntarily quit without good cause. (A.B. 11,524; )

Failure to substantiate claimed adverse effect of working conditions on health resulted in finding that good cause for voluntary leaving did not exist. Medical certificate, because obtained after interview at Insurance Section, had little weight. (A.B. 6143-41; ; similarly, A.B. 12,910-46)

Doctor's certificate that claimant "feels that riding in trains and subways causes frequent colds ... avoidance of commutation advisable" at the most shows agreement by the doctor that claimant might feel better if commuting to the employer's new place of business were not required but is insufficient proof that claimant was compelled to leave the job for health reasons. (A.B. 39,825- 53; )

Failure to apply for a "trip-off" by a seaman who left his employment at the end of the voyage because of illness, held to constitute a voluntary leaving without good cause. (A.B. 21,112- 49; ; similarly, A.B. 27,947-51)

A seaman who did not request a "trip-off" upon leaving his employment because of illness, left with good cause when his vessel was operating on trips from two to seven months duration and by registering for new work after becoming well, he had prospects of obtaining a job within a month. (A.B. 26,205-51; )

Lack of heat for a short time prior to the heating season, which allegedly caused a cold which lasted one or two days, is not good cause for voluntary leaving of employment since to be detrimental to health a causative condition must be a continuing condition. (A.B. 18,923-49; )

Discharge for failure to report for work on a date set by her employer, based on a single examination by its doctor, is a loss of employment under non-disqualifying conditions if the claimant's own physician has determined, based on a continuing course of treatment, that she was unable to work at that time. (A.B. 401,183; )

(a) Claimant was discharged when he notified his employer of his admittance to a hospital for drug rehabilitation sometime after being admitted. Claimant's absenteeism is not excused because it was caused by his admittance to a drug abuse rehabilitation program inasmuch as his drug abuse problem was a foreseeable result of his use of an illegal substance.

(b) After reemployment, it was not good cause for claimant to voluntarily leave his job in order to avoid the location near the worksite where alleged drugs were available for purchase. (A.B. 409,188; )

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

If an employee is an employee receives a penalty or reprimand that the employee feels is unjust, will that establish "good cause" for a voluntary separation. Check out what these cases demonstrate, from the Appeals Board web site:

Claimant was given permission to be absent for the morning as the result of a nervous condition from his being the cause of an accidental injury to a co-worker. After an absence of two days he was told to return at once or be discharged, whereupon he gave vent to an outburst of temper. Upon reporting for work two days thereafter and then being informed that he could return to employment but with the loss of all seniority rights and two weeks vacation then due, he voluntarily left. Held, his leaving, considering his highly nervous state at the time of his single outburst of temper, after an unblemished record of ten years, was with good cause. (A.B.14,659-47; )

Justifiable criticism of work was not good cause for voluntary leaving of employment. (A.B. 7464-42; )

Resentment because of deserved reprimand for repeated absences from work was not good cause for voluntary leaving of employment. (A.B 10,713-44;)

Being told by her floor manager that if her work did not improve by the end of the following week she would be discharged did not constitute good cause for leaving employment. (A.B. 20,115-49. )

Being told to re-do some work to employer's satisfaction or leave the job does not constitute good cause for leaving employment where it appears that claimant's wages would not have been affected. (A.B. 48,005-54; )

Claimant's refusal to accept reinstatement following a disciplinary suspension because such reinstatement is contingent upon a probation period wherein claimant could be summarily discharged for a violation of company rules; was tantamount to voluntary leaving of employment without good cause. (A.B. 374,677;

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

Discrimination is "good cause" for a voluntary separation but as these cases demonstrate, from the Appeals Board web site, discrimination must be established:

Discriminatory enforcement of company rule constitutes good cause for voluntary leaving of employment. (A.B. 6849-42, )

Promotion in disregard of seniority rights established by prevailing custom indicated discrimination and was good cause for voluntary leaving. (A.B. 1965-42; )

Claimant's leaving was with good cause where his monthly salary was reduced to correspond to a shorter work week, such reduction not being uniformly applied to all personnel in claimant's category, as the employer in effect materially altered the terms and conditions of the contract of hire. (A.B. 13,619-46; )

Where claimant voluntarily left her employment because her employer refused a salary increase to the same wage level as that paid to male co-workers for similar work, and it appeared that the differential in pay was based on experience and ability and not on sex discrimination, held that the leaving was without good cause. (A.B. 12,544-45; )

Employer's failure to fulfill promise to increase salary constitutes good cause for voluntary leaving of employment where co-workers in the same establishment received considerably more for the same work. (A.B. 6442-41; )

Failure to receive increase in pay, as did other employees doing same grade of work, such increase being based on seniority, was not good cause for voluntary leaving of employment, when claimant did not have necessary seniority. (A.B. 12,762-46; )

Where claimant voluntarily left her employment because she felt disappointed and aggrieved in not being promoted to a higher position for which she felt better qualified than the incumbent who was younger and had less formal education and seniority, such leaving was held to be without good cause since it was within the employer's province to fix qualifications and to make promotions in the organizations. (A.B. 22,402-50; )

Article 15 of the N.Y. State Executive Law, known as "The Human Rights Law", provides that it shall be an unlawful discriminatory practice for an employer (Section 296.1(a)) "because of the age, race, creed, color, national origin, sex, or disability or marital status of any individual *** to discriminate against such individual in compensation or in terms, conditions or privileges of employment and additionally (Section 296.3 (a)), because an individual is between the ages of eighteen and sixty-five *** to discriminate against such individual in promotion, compensation, or in terms, conditions, or privileges of employment."

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

Continuing on this issue, what happens when you quit because you can't get along with your boss or co-workers? Here are some cases from the Appeals Board website:

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. (; A.B. 39,427-53)

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)

Constant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee's voluntary leaving of employment. (Ref. Dec. 51-325-52R; ; similarly, A.B. 258,475A)

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)

Mere displeasure with a co-worker's attitude in the absence of evidence that health was being impaired is not sufficient of itself to constitute good cause for voluntary leaving. (A.B. 16,683-48)

Inability to get along with a fellow employee is not in itself good cause for leaving employment. (A.B. 7053-42)

Being harassed and annoyed by co-workers to such an extent that health is adversely affected may be good cause for voluntary leaving. (A.B. 8108-42)

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;

Disagreement with an employer's new and reasonable "no smoking" policy, which makes provision to accommodate "smokers" does not constitute good cause for leaving employment. (A.B. 388,255;

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

Sometimes the issue in voluntary separation cases is blurred and the question is "Did the Claimant quit or did the Claimant refuse employment?" For example, these cases cited on the Appeals Board website:

When a claimant quits employment which he had accepted in good faith, voluntary leaving and not refusal is at issue, even though the claimant worked in the employment for less than one-half day. (Matter of Centonze. 54 A.D. 2d 523; )

Where claimant refused to return to former employment after an absolute lay-off with no definite date set to return, the proper issue is refusal of employment; however, if a definite date is set to return, the issue is one of voluntary leaving. (A.B 21,654-49; )

Severance of employment at the termination of a voyage and upon the receipt of Certificate of Discharge issued by the United States Coast Guard, but after continuing work was offered, was voluntary leaving of employment and as the principal reason for so doing was that the voyage was ended, the leaving was without good cause. (Ref. 510-282-48R; )

Where night work affected claimant's health, unwillingness to accept transfer to same work on day shift at prevailing wages resulted in disqualification for voluntary leaving of employment without good cause and not for refusal of employment. (A.B. 10,324-44; ; similarly A.B. 28,738-52)

Rejection of an offer for continuing employment with a new owner of the business constitutes a voluntary leaving of employment. (A.B. 149,204; )

A claimant who was hired for a specified period is subject to disqualification for voluntary leaving of employment if he rejects an offer of continuing work upon expiration of that period. (A.B. 264,829;

A layoff due to lack of work with no definite date of recall severs the employer/employee relationship, notwithstanding claimant's retention of union seniority and recall rights. (A.B. 329,932;)

Failure to return to work following a temporary layoff of definite duration is a voluntary separation from employment. The disqualification, if warranted, is effective the pre-established recall date. (A.B. 329,642;

When a claimant voluntarily resigns without good cause, prior to a scheduled temporary lay-off, the effective date of disqualification is the day following the last day of claimant's employment even though this date coincides with the date of the scheduled temporary lay-off. (A.B. 411,606; )

Claimant's refusal to accept reinstatement following a disciplinary suspension, because such reinstatement is contingent upon a probation period wherein claimant could be summarily discharged for a violation of company rules; was tantamount to voluntary leaving of employment without good cause. (A.B. 374.677;

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

A lawyer at a Continuing Legal Education course that I took on UI cases once said "Do not rely on UI benefits as an income. If you are unhappy with your job, don't quit unless you have a new one." I have had several cases where claimants quit and these have been difficult cases. let us first examine the introductory statement on the issue from the Appeals Board website:

"The Unemployment Insurance Law requires that a claimant voluntarily separated from employment be disqualified if the separation is "without good cause" (sub. sec. 593.1(a)), or due to the claimant's "marriage" (sub. sec. 593.1 (b)). This applies to any voluntary separation after which claimant has not worked in subsequent employment and earned remuneration at least equal to five times the benefit rate. (See Field Memo 3-99 for detailed discussion of "controlling" employment.)

The term "voluntary separation" as used in the statute means leaving employment of one’s own free will. It includes resignations other than those submitted at the employers insistence, and failure to return to work following a temporary layoff or leave of absence. A claimant discharged because of volitional acts which leave the employer no choice but to terminate the employee, pursuant to law, governmental regulations or contract is also voluntarily separated from employment. (, 309 N.Y. 413; , 71 AD 2d 746)

Once it is established that a claimant's separation is voluntary, the local office must determine whether the circumstances of the separation were "without good cause." Section 593.1 (a) provides that "In addition to other circumstances that may be found to constitute good cause, voluntary separation from employment shall not be in itself disqualify a claimant if circumstances have developed in the course of such employment that would have justified the claimant in refusing such employment in the first instance ..." under the terms of sub. sec. 593.2...; or "if a claimant, pursuant to an option provided under a collective bargaining agreement or written employer plan which permits waiver of his right to retain the employment when there is a temporary layoff because of lack of work, has elected to be separated for temporary period and the employer has consented thereto. "

Statutory good cause is also provided by sub. sec. 599.2 for claimants leaving employment which is not "suitable employment" to enter training approved under the Federal Trade Act of 1974. "Suitable employment" is defined as "work of a substantially equal or higher skill level than the claimant's past adversely affected employment and for which the remuneration is not less than eighty percent of the claimant’s average weekly wage." This exception does not apply to any other training program. In addition to the statutory reasons above, numerous other conditions may provide good cause for leaving employment. In general, to qualify for benefits a claimant who voluntarily leaves employment must have had a compelling reason for leaving and must have made a reasonably prudent attempt to resolve the problem and protect the employment.

When interviewing claimants regarding the issue of voluntary separation, claims personnel should consult the appropriate Fact Finding Guide cards for a checklist of questions to be explored. Determinations should be made in accordance with the principles reported in this section of the Interpretation Service Index, and the policies set forth in relevant Special Bulletins (A-710 series).

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Finally, on the issue of what happens at a later union hearing on reinstatement or other hearing if the DOL first finds you innocent of misconduct we go to IN RE WHARTON v. N.Y.C. D.O.C., 0103493/2008 (8-12-2008), 2008 NY Slip Op 32289 (Sup. Ct. N.Y. August 12, 2008):

"Initially, this court finds that the DOC is not barred from arguing that it terminated petitioner in good faith, by virtue of the award petitioner obtained from the Department of Labor. New York Labor Law § 623 (2) declares that "[n]o finding of fact or law contained in a decision rendered pursuant to this article by a referee, the appeal board or a court shall preclude the litigation of any issue of fact or
law in any subsequent action or proceeding[.]"[fn1] Consequently, New York courts have uniformly held that determinations of the Department of Labor concerning unemployment insurance are "without preclusive effect in [an] action" (Wooten v. New
York City Dep't of Gen. Servs., 207 AD2d 754, 754 [1st Dept 1994]; see also Matter of Watson v Bratton, 243 AD2d 295, 295 [1st Dept 1997]; Matter of Rivoli v Stern, 160 AD2d 601, 601 [1st Dept 1990]). Therefore, the Department of Labor's determination is without preclusive effect herein."

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Another interesting case is SILBERZWEIG v. DOHERTY, 23 Misc.3d 618, 873 N.Y.S.2d 461 ( Sup. Ct. N.Y. Co. 2009), which I quote in part:

"Initially, the Department of Labor had disqualified Silberzweig from receiving benefits on the ground that his employment had been lost through misconduct because he had been absent without leave during his incarceration. The Appeals Board reversed, stating that

"There is no dispute that the claimant was absent
without leave since August 2, 2007 because of his
arrest. However, the claimant's father notified the
employer of the claimant's arrest and incarceration
within two days of the arrest, and the employer knew
of the claimant's whereabouts. . . . The claimant was
absent due to his arrest on August 1, 2007, and since
he was acquitted oh February 13, 2008, I find that the
arrest and resulting absence
was due to circumstances beyond his control. He
reasonably notified the employer of his whereabouts
and his inability to work. The claimant did not
voluntarily leave this job by these absences caused by
the arrest, and he did not commit any act of
misconduct with respect to his arrest or absences."

That rationale applies with equal force here. Since Silberzweig was acquitted of all charges, his arrest and resulting absence from work cannot be attributed to any misconduct on his part."

Notice that in this case, as opposed to the others reported in this discussion, the Claimant was aquitted of all charges: there was no plea bargain to a lesser charge.

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Here is another recent case I found from the Appellate Division, 3rd Department on the issue of criminal acts disqualifying a Claimant from benefits:

"IN THE MATTER OF THE CLAIM OF ERIC J. CUMMINGS, Appellant. v. COMMISSIONER OF LABOR, Respondent., Appellatte Supreme Court of New York, Third Department, Decided and Entered: January 14, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed on September 12, 2008, which, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a customer field representative for a utility company. His duties included entering customers' homes to disconnect their meters, as well as accepting payments in the form of cash or check. In July 2006, claimant was arrested and charged with various crimes involving the alleged commission of insurance fraud. Claimant was suspended from his employment without pay pending the resolution of the criminal charges. In September 2006, claimant applied for unemployment insurance benefits and thereafter began receiving payments. Claimant subsequently pleaded guilty in November 2007 to the crime of attempted offering to file a false instrument, a misdemeanor, in full satisfaction of the charges. In January 2008, the employer terminated claimant's employment.

Following the termination, the Department of Labor issued a determination disqualifying claimant from receiving unemployment insurance benefits and charging him with a recoverable overpayment. After claimant failed to appear for a hearing he had requested on the matter, the determination was upheld on default. The matter was
subsequently reopened and, following a hearing, an Administrative Law Judge sustained the initial determination. The Unemployment Insurance Appeal Board affirmed, prompting this appeal.

Claimant contends that the Board's determination is not supported by substantial evidence insofar as his criminal conviction pertained to activities unrelated to his employment. We disagree. "Misconduct committed during nonworking hours, which raises serious questions as to a workers' integrity, bears a relationship to his work within the meaning of . . . section 593 of the Labor Law" (Matter of Bruggeman [Roberts], 101 AD2d 973, 973 [1984], lv denied 63 NY2d 608 [1984] [citations omitted]; accord Matter of Mora [Hartnett], 175 AD2d 442, 443 [1991]; see Matter of Kessler [Commissioner of Labor], 286 AD2d 844, 845 [2001]). Accordingly, given the nature of claimant's employment duties, including entering customers' homes and accepting cash payments, we find no reason to disturb the Board's determination that his misconduct was sufficiently connected to his employment (see Matter of Kessler
[Commissioner of Labor], 286 AD2d at 845). Regarding the Board's determination that the benefits claimant received were recoverable, we find there is substantial evidence in the record supporting the Board's factual finding that claimant made a willful misrepresentation to obtain benefits (see Matter of Bal [Commissioner of Labor], 52 AD3d 1122, 1123 [2008]; Matter of Barbera [Commissioner of Labor],
28 AD3d 973, 975 [2006])."

The lesson learned from this case is that even a crime committed off work hours may be justification for job termination and misconduct. So again, if you are innocent of charges, do not plea bargain to a reduced charge so that you can get a quick resolve of the criminal action. If you want to receive unemployment benefits when you have been arrested for an alleged crime committed during work and work related or off work, it may be deemed misconduct, so try to get an acquittal! That won't guarantee benefits as the standard of proof in a criminal case is different than the standard of proof in an administrative hearing, but a conviction or plea bargain may guarantee a denial of benefits. In this case, one should also note the determination of overpayment and the fact that the claimant was termination almost 18 months after his arrest and 2 months after his plea of guilty.

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Here is the most recent case I found from the Appellate Division, 3rd Department on the issue of criminal acts disqualifying a Claimant from benefits. This is the court that hears all appeals from decisions of the Appeals Board. The process is as follows: first a DOL determination, then a hearing before an administrative law judge, then an appeal to the Appeals Board, then an appeal to the Appellate Division, 3rd Department.

"IN MATTER OF VELEZ v. COMMISSIONER OF LABOR, 507620 [3d Dept 2-4-2010], 2010 NY Slip Op 00765, Decided and Entered: February 4, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,filed March 26, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Annette G. Hasapidis, South Salem, for appellant.

Before: Mercure, J.P., Rose, Lahtinen, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Claimant worked as a respiratory therapist at a hospital for over 14 years. While claimant was administering treatment, a female patient accused him of inappropriate physical contact. A criminal charge was filed against claimant as a result. He pleaded guilty to a reduced charge of harassment in the second degree (see Penal Law § 240.26 [1]), received a conditional discharge and his file was sealed. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant appeals.

We affirm. "It is well settled that offensive behavior in the workplace which is detrimental to the employer's best interest constitutes disqualifying misconduct" (Matter of Williams [Commissioner of Labor], 32 AD3d 1089, 1090 [2006][citations omitted]). Here, claimant's plea of guilty to a reduced criminal charge of harassment formed the basis for his discharge and entailed offensive physical contact that was strictly prohibited by the employer's rules and clearly adverse to the employer's interests. This provides substantial evidence supporting the Board's
finding of misconduct (Matter of Singleton [Commissioner of Labor], 60 AD3d 1230 [2009]; Matter of Bucolo [Commissioner of Labor], 6 AD3d 917 [2004]; Matter of
Daoust [Overnight Transp. Co. — Commissioner of Labor], 5 AD3d 828 [2004]). Claimant's challenge to the validity of the guilty plea and its ramifications is more properly brought in the context of the criminal proceeding. Although claimant denied engaging in any inappropriate conduct, this presented a credibility
issue for the Board to resolve (see Matter of Singleton [Commissioner of Labor], 60 AD3d at 1231; Matter of Williams [Commissioner of Labor], 32 AD3d at 1090) Consequently, we find no reason to disturb the Board's decision."

The lesson learned from this case is that if you are innocent of charges, do not plea bargain to a reduced charge so that you can get a quick resolve of the criminal action. If you want to receive unemployment benefits when you have been arrested for an alleged crime committed during work and work related, try to get an acquittal! That won't guarantee benefits as the standard of proof in a criminal case is different than the standard of proof in an administrative hearing, but a conviction or plea bargain will probably guarantee a denial of benefits.

UNEMPLOYMENT INSURANCE - MISCONDUCT

I am going to take a break from this discussion on criminal acts to report on a favorable decision I received yesterday from the Appeals Board. The employer had appealed the Administrative Law Judge's decision that the Claimant was not guilty of misconduct. This case is note worthy for several reasons:

1) The initial determination disqualifying the claimant from receiving benefits was effective August 2008. The administrative law judge hearing lasted several months and a favorable decision was not received until April of 2009. That was an 8 month wait for a decision.

2) The employer appealed, and after several hearings on whether the employer filed a timely appeal, the Appeals Board issued their decision in February of 2010. That is almost 10 months from the initial decision.

3) The Appeals Board stated, in upholding the Claimant's right to benefits, that "poor job performance and poor attitude do not constitute misconduct".

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Next in this discussion is a list of Appeals Board cases from the Appeals Board website:

"1195. Criminal acts (Section 593.4)

Claimant was properly disqualified for loss of employment because of a criminal act when he had signed a statement admitting the commission of an act which constitutes a felony even though he subsequently pleaded guilty to a reduced charge of a misdemeanor. (A.B. 108,554A; A-750-1607; similarly. A.B. 298,970)

A statement signed by claimant that he wrongfully took, monies from the employer is not a statement admitting a felony within the meaning of Section 593.4 if it does not show the amount involved and therefore, does not show that the monies taken reached that sum which renders the act to be a felony. (A.B. 85,225A; A-750-1577)

A document prepared by a claims examiner and signed by a claimant in connection with his claim for benefits does not represent a signed "statement admitting that he (claimant) has committed" a felony within the requirement of Subdivision four of Section 593 of the law, and a disqualification as provided in that subdivision can, therefore, not be imposed on the basis of such document. (A.B. 76,294-60; A-750-1539)

Obsolete

A postal employee commits a criminal act in connection with his employment (Section 593.4) when convicted for a felony (grand larceny) committed off the job because it is a condition of hire that postal workers subscribe to a code of ethics requiring that no employee shall engage in criminal conduce. (A.B. 281,278F)

A claimant's off duty act, in disregard of standards of behavior which an employer has a right to expect of its employees, is "in connection with" employment within the meaning of Section 593.3 (misconduct) and Section 593.4 (criminal acts) of the Labor Law. (Claimant, a fiscal analyst for a municipality, was convicted of engaging in felonious corruption of a public official, reflecting unfavorably on the integrity of the employer.) (Matter of Markowitz, 94 A.D. 2d 155; A-750-1946)

A claimant is subject to the twelve month disqualification for criminal misconduct when subsequently convicted of related acts constituting a felony if such actions occurred while engaged in the employment in question and there is a sufficient link between these acts and the reasons for the loss of employment, even if the original reason for discharge was only based on suspicion. (Matter of Powers 177 AD 2d 833; A-750-2043)"

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

I am going to begin a discussion on the issue of eligibility/disqualification of unemployment insurance for criminal acts. Let me begin by quoting from the Appeals Board website:

"In addition to the above disqualification, Section 593.4 of the (Labor) Law provides:

Criminal acts. No days of total unemployment shall be deemed to occur during a period of twelve months after a claimant loses employment as a result of an act constituting a felony in connection with such employment, provided the claimant is duly convicted thereof or has signed a statement admitting that he or she has committed such an act. Determinations regarding a benefit claim may be reviewed at any time. Any benefits paid to a claimant prior to a determination that the claimant has lost employment as a result of such act shall not be considered to have been accepted by the claimant in good faith. In addition, remuneration paid to the claimant by the affected employer prior to the claimant's loss of employment due to such criminal act may not be utilized for the purpose of establishing entitlement to a subsequent, valid original claim. The provisions of this subdivision shall apply even if the employment lost as a result of such act is not the claimant`s last employment prior to the filing of his or her claim."

MORTGAGE FORECLOSURE CLINICS

A message from the Nassau County Bar Association and Martha Krisel, Chief Deputy County Attorney for Special Projects:

"Thank you as always for your generosity in volunteering to assist the residents of Nassau County who are facing foreclosure.

As volunteers, you are providing pro bono representation. Please refrain from soliciting clients.

Pamphlets are available at clinics and conferences with the contact information for Lawyer Referral Information Services (LRIS) of the Nassau County Bar Association. Should a clinic or conference attendee ask you about obtaining counsel, please provide an LRIS pamphlet. If you would like to join the LRIS, please contact Pat Carbonaro at 516-747-4070 x 219."

UNEMPLOYMENT INSURANCE - TAXES

A common question: do I report it? A common answer: yes and file. Here is some information the the Department of Labor website:

"Q: Is there tax relief available for UI claimants?

A:  Yes. Under current legislation, the first $2400 of UI benefits paid in the year 2009 will be exempt from federal and state taxes.

Q: Will any benefits be withheld for taxes?

A:  The withholding of benefits for Federal income tax or State income tax is voluntary. If you elect to have Federal tax withheld, an amount equal to 10% of your gross benefit payment will be withheld after mandatory deductions, such as child support payments, are made. If you elect to have State tax withheld, an amount equal to 2.5% of your gross benefit payment will be withheld. You can change this option any time by calling the Telephone Claims Center toll-free number, selecting the option to ask a question about a claim you already filed, entering your SSN and PIN, and then selecting the option to begin or cancel the withholding of federal or state income tax.

Q: Can I change my tax withholding option?

A:  You may start or stop the federal or state tax withholding at any time by contacting the Telephone Claims Center and:
• Selecting option to "Ask a question about a claim you already filed," and
• Entering your Social Security number and PIN, and
• Selecting the option to begin or cancel the withholding of federal or state income tax.

If you elect the tax withholding option, you must have 10% withheld; you cannot have any less or any more than 10% withheld. If you elect the state tax withholding option, you must have 2.5% withheld; you cannot have any less or any more than 2.5% withheld.

Q: Can I have my tax withholding returned to me?

A:   Any benefits withheld cannot be returned to you by the Department of Labor; benefits withheld can only be returned to you by the Federal or State government as part of your income tax refund.

Q: Will I receive a year-end statement?

A:   Yes. During January, the Department of Labor sends out a Form 1099-G (Statement for Recipients of Certain Government Payments) to claimants who received unemployment insurance benefits during the previous calendar year. Because of this, it is important that you notify the Telephone Claims Center of your current address.

Please keep the Form 1099-G for your records. The information on your benefit statement is also sent to the Internal Revenue Service and the New York State Department of Taxation and Finance. Unemployment compensation includes: unemployment insurance payments; extended benefits and Federal Supplemental Compensation payments; Trade Adjustment Act (TAA) basic, retroactive, and additional for training payments; and Disaster Unemployment Assistance (DUA) payments. If you did not receive any unemployment compensation during the previous calendar year, but repaid an overpayment of benefits, the Form 1099-G is sent to you as the information may be helpful to you in filing your return.

If you received unemployment insurance benefits during the prior calendar year, and do not receive your Form 1099-G by February of this year, please contact the Department of Labor – Payment Unit at 518-485-7071, or you can request the 1099-G by mail. For a complete record of your UI payments, login on the Benefits Online Page and click on 'View Payment History'.

In addition to federal and state income tax, you are also responsible for New York City and Yonkers City income tax, if you are subject to them.

It may be necessary for you to make estimated tax payments to avoid a penalty for underpayment when you file your return next year. For more information on when you should make estimated federal tax payments, see IRS Publication 505, Tax Withholding and Estimated Tax, or the instructions for Form 1040-ES. For estimated state tax, use Form IT - 2105, Estimated Tax Payment Voucher. If you have any questions about estimated state tax payments, contact the NYS Department of Taxation and Finance at 1-800-225-5829. The withholding of 2.5% of your benefit amount for State income tax is voluntary.

The Internal Revenue Service is responsible for interpreting and applying the provisions of income tax laws. Any questions on federal taxes should be directed to the nearest Internal Revenue Service office. The New York State Department of Tax and Finance is responsible for interpreting and applying the provision of state income tax laws. Questions on state taxes should be referred to the NYS Department of Taxation and Finance.

Q: If I repaid an overpayment will it appear on my form 1099-G?

A: Yes, provided the repayment was received by the Department of Labor during that tax year. If you did not receive any unemployment compensation during the previous calendar year, but repaid an overpayment of benefits, the Form 1099-G is sent to you as the information may be helpful to you in filing your return. Please note that only cash repayments are reported on Form 1099-G. Benefits taken from your claim to repay an overpayment are not cash repayments and are not included in the form. "

UNEMPLOYMENT INSURANCE - APPEALS

It is important to note that making a proper record for an appeal of an adverse determination is of the utmost importance. Normally, the process is this: Claimant is denied benefits from the Department of Labor, Claimant requests a hearing before an administrative law judge and is still denied, Claimant then appeals to the Appeals Board and is still denied and then finally appeals to the Appellate Division, 3rd. Department. Most recently the standard of review was highlighted in MATTER CLAIM OF HEPPEHAMER v. COMMI. OF LABOR, [3d Dept 11-25-2009], 2009 NY Slip Op 08733, where the court noted that "(w)hether a claimant has lost employment through disqualifying misconduct is a factual determination to be made by the Unemployment Insurance Appeal Board and its decision will not be disturbed if supported by substantial evidence (see Matter of Rey-Calderon [Commissioner of Labor],60 AD3d 1124, 1124 [2009]; Matter of Piervencenti [Crest/Good Mfg. Co., Inc. — Commissioner of Labor],39 AD3d 1108, 1108-1109 [2007])" and that "issue(s) of credibility are for the Board to resolve (see Matter of Auguste [Commissioner of Labor], 61 AD3d at 1243; Matter of Musac [Commissioner of Labor], 50 AD3d at 1428).

UNEMPLOYMENT INSURANCE HEARINGS

For Claimants - remember, when you request a hearing, you don't have discovery per se. In other words, until you get to review the file, usually a day before or the day of the hearing, you do not know what the other side has submitted in opposition to your claim. One recent claim, which the Claimant thought had involved a certain incident, wound up to be something else. An Administrative Law Judge has the right to expand the issues in a hearing so whatever is in the file, whatever has been submitted in opposition to your claim, may be heard and considered at the hearing.

UNEMPLOYMENT INSURANCE - TIMELINESS OF REQUEST FOR HEARING

This is from the NYS Department of Labor website and a recent consultation revealed that they are strict with this statutory limitation of 30 days:

"Q: How do I request a hearing?

A: You may request a hearing on any determination affecting your rights to benefits by writing a letter to NYS Department of Labor, P.O. Box 15131, Albany, NY 12212-5131The request must be postmarked or otherwise proven to have been filed within 30 days after the mailing or personal delivery of the determination. Absent proof to the contrary, a determination shall be deemed to have been mailed on the date recited on it and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. Make sure you include your Social Security number on your hearing request and the reasons you disagree with the determination. You will be notified of the date, time and place of the hearing by the Administrative Law Judge section after your request has been processed.

To protect your rights, you must continue to claim weekly benefits for any week in which you are unemployed. Claim your weekly unemployment benefits online using WEB-SERVICE. You may also use a touch-tone telephone or a telephone with a pulse/tone switch by calling TEL-SERVICE at 1-888-581-5812 for New York State residents or 1-888-864-9920 for out of state residents"

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Claimant is discharged because of an accused criminal act. Claimant is denied benefits for misconduct, and as a result, is homeless living in a shelter. Claimant requests hearing and is still denied benefits. A week after hearing, Claimant's criminal action is dismissed. Now what? Here are two Appeals Board decisions on this issue: For the sustainment of a charge of misconduct there must be clear proof that an act detrimental to employer's interests was indisputably committed by claimant. (A.B. 1008-39); Misconduct under the Law was established even though acts did not result in criminal conviction. (Ref. Dec. 532-78-39R. Principle confirmed by Matter of Colello, No.76-443 App. Div., 3rd Dept., Dec. 2, 1976, unreported).

MORTGAGE FORCLOSURE - SETTLEMENT CONFERENCES

Yesterday, I was a volunteer lawyer at Nassau Supreme Court for a few hours where a special program was held by the court in which homeowners in foreclosure could meet with volunteer lawyers and certified housing counselors before their next scheduled mandatory settlement conferences. I discovered that some homeowners are wishing to maintain their homes for emotional reasons that makes no financial sense. Here's an example. Homeowner has a gross income of 50K, a home that has a value of 350K,a mortgage in arrears that totals 500K and 200K in other debt (resulting from credit card spending, medical bills, etc.) This is a terrible economy but this can also happen in a good economy. Why pay a bank 5K a month to keep a home that you could probably rent for 2K a month? Why pay 500K for a home only worth 350K? Even assuming you could keep your home in foreclosure, there is still another 200K in debt. These creditors will eventually sue and get judgments. These judgments can be liens against your home and eventually foreclosed on. I write this to say that there is no shame to file for bankruptcy. This is life, not a game of Monopoly. Bankruptcy allows you to start all over again and in the hypothetical case I present, at least the homeowner has a job. I understand emotional ties to your home, I have one myself, but sometimes, decisions must be made that make financial sense, even though your heart says no. Below is a link to a recent article in the New York Times that deals with this issue:

http://www.nytimes.com/2010/02/03/business/03walk.html?ref=business

UNEMPLOYMENT INSURANCE BENEFITS - VOLUNTARY SEPARATION

Several recent consultations have reminded me of a statement made by an attorney who usually represents employers in employment matters - "do not quit a job unless you have another one because you cannot rely on unemployment insurance benefits as an income". Unfortunately, in this economy, there are also many layoffs and firings and for those of you on Facebook, become a fan of the NYS Department of Labor Facebook page at http://www.facebook.com/home.php?#/nyslabor - it is a window to the world of unemployment in New York.

HAITIAN TPS AND MEDICAL ASSISTANCE ELIGIBILITY

Haitian TPS and Medical Assistance Eligibility (1/28/2010) - Haitian applicants for Temporary Protected Status will be eligible for New York's publicly funded medical assistance program if they meet all other financial and non-financial eligibility requirements. Click on the link below for more information or cut and paste into your browser:

http://www.empirejustice.org/assets/pdf/issue-areas/immigrant-rights/haitian-tps-and-medical.pdf