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"