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 The claimant requested a hearing.By decision filed December 6, 2007 (Appeal Board No. 539054), the Board rescinded the decision of the Administrative Law Judge filed September 11, 2007, and remanded the case to the Hearing Section for a hearing and a decision on the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."