UNEMPLOYMENT INSURANCE - MISCONDUCT - TIME RECORDS

Recently, I had a consultation with a Claimant where there was a disqualification due to false time records. Generally, the Appeals Board and the 3rd Department have been strict on this issue as demonstrated by IN RE DOWNING, 51 A.D.3d 1093, 858 N.Y.S.2d 403 [3d Dept 2008]

"Substantial evidence supports the Unemployment Insurance Appeal Board's decision that claimant, a speech therapist, lost her employment as a result of disqualifying misconduct. The failure to comply with an employer's established record-keeping policies and procedures can constitute disqualifying misconduct (see Matter of Fulcher [Commissioner of Labor], 32 AD3d 1064, 1064 [2006]; Matter of Adams [Commissioner of Labor], 6 AD3d 856, 856 [2004]). Here, although claimant was aware that the falsification of time records was prohibited by the employer and constituted grounds for termination, she submitted two time records that inaccurately represented the number of sessions that she had provided to clients. Significantly, claimant previously had been warned about inaccurate record keeping and was aware that any further violations of the employer's policies could result in her termination. Although claimant did not deny that the time records in question were inaccurate, she maintained that the inaccuracy was inadvertent and caused by stress in her personal life. This exculpatory explanation presented a credibility issue for the Board to resolve (see Matter of Adams [Commissioner of Labor], 6 AD3d at 856). Finally, because claimant indicated when applying for benefits that her employment had been terminated due to a lack of work when, in reality, she was fired, substantial evidence supports the Board's finding of a willful false statement (see Matter of Oberferst [Commissioner of Labor], 17 AD3d 902, 903 [2005])."

All the cases I have discovered have held that false time records were misconduct, even if it inly happened in one instance. Now I wonder how a decision would be reached if the evidence established that not only did the employee falsify time records, but that the employer did too in order to avoid paying overtime, reduce benefits, etc.