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

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

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

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

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

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

TODAY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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."