UNEMPLOYMENT INSURANCE - MISCONDUCT

Repeated lateness - usually disqualifying conduct. But I have a hearing coming up tomorrow where the following case may be of help:

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

March 24, 1989

Tardiness caused by a transportation delay on claimant’s last day of work is not misconduct when claimant had followed the employer’s prior advice to leave home at an earlier hour to overcome these delays, but was nevertheless unavoidably late.

A.B. 390,570

FINDINGS OF FACT: The claimant was employed as a trimmer in a handbag factory for approximately two and a half years until April 18, 1988. She was scheduled to start work at 8:00 A.M. During the last months of her employment, claimant was warned about her tardiness. All of the latenesses were due to transit delays. After being advised by her employer to leave earlier in the morning in order to arrive on time, the claimant did so. She allowed an hour and a half to one and ¾ hours for travel time. On her last day of work, the claimant came in approximately nine minutes late. This was caused (by) a fifteen-minute verified delay of the train claimant took to work. The train also skipped the station at which claimant needed to alight in order to go to her job site. If there were not a transit delay, she would have arrived at her place of employment at the time scheduled for her to start work. Her employer discharged the claimant because of her pattern of lateness.

OPINION: The credible evidence now before the Board establishes that the claimant was approximately nine minutes late to work on April 18, 1988, because of a subway delay. After being warned by her employer about her tardiness and after receiving the employer’s advice to leave home at an earlier hour in order to overcome transit delays, claimant allowed more time for travel. Claimant’s lateness on her last day of work because of a transit delay, together with the train skipping her station, in spite of her efforts to get to work on time, was beyond her control, nor foreseeable by her. The fact that the employer chose to discharge this employee after a certain number of latenesses, does not require the conclusion that she committed an act of misconduct in relation to her employment (A.B. 360,930; A.B. 357,414; A.B. 346,580; A.B. 331,918). Accordingly, we conclude that claimant lost her employment under non-disqualifying conditions.

DECISION: The initial determination of the local office is sustained. The employer’s objection is overruled. The decision of the administrative law judge is reversed."