NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

It would appear that job performance that is affected by a disability should not be considered misconduct. As the DOL states:

"The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion."

NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

Recent news about the airline pilot who had an attack during a flight illustrates a problem that comes up in Unemployment Insurance matters - when an employee is terminated for misconduct and/or voluntary separates, will the employee be eligible for unemployment insurance if the incident leading to job termination was related to the disability.

NEW YORK UNEMPLOYMENT INSURANCE - AT A HEARING TODAY

Claimant terminated. Claimant filed for benefits. Employer objected. DOL determined claimant ineligible and claimant requested hearing.

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT AND FINAL WARNING

From IN THE MATTER OF: Appeal Board No. 554787 (AUGUST 24, 2011):

"The credible evidence establishes that on June 28, 2010, the claimant allowed a registered nurse to sit on his knee with his arm around her waist in the nurses' station while she put his cell phone on "vibrate" and told an LPN she could send her cell phone picture of this to his home e-mail. We recognize that the claimant was on a general final warning facing the consequence of discharge for any further violation of the employer's policies. However, the final warning of May 18 had to do with a HIPAA violation that the claimant incurred by accessing a former patient's medical records without authorization. This was unrelated to the final incident on June 28. Specifically there was no image in the LPN's cell phone photo of any patients on the unit which would have been in violation of patient privacy rules under HIPAA. The conduct that the claimant "allowed" from his subordinates reflected yet another instance of his general exercise of poor professional judgment under the circumstances, rather than a repeat of what he had already been warned for. Therefore, we conclude that the claimant could not have known from the May 18 warning that his job would be in jeopardy for the incident of June 28. We also note that the employer's witness admitted that the claimant had never been trained in requisite skills necessary to be an efficient supervisor. Thus, we are not persuaded by the employer's citations to Court cases in which claimants were found to have committed misconduct for a repeated violation of a specific employer policy after final warning. We conclude that the claimant, a long term employee, failed to meet the employer's standards for good professional judgment in a variety of situations. However,we have long held that poor performance is not misconduct. While an employer may discharge an unsatisfactory employee for any legal reason, not all discharges for cause rise to the level of misconduct for unemployment insurance purposes. Accordingly, we conclude that the claimant lost his job under non disqualifying conditions and is eligible for benefits."

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT AND FINAL WARNING

From IN THE MATTER OF: Appeal Board No. 557575 (DECEMBER 14, 2011):

"In misconduct cases, we look to the final incident that precipitated the claimant's actual separation from his work, which in this case was the encounter with his co-worker. In this case the claimant was fired rather than disciplined like his co-worker because he had already been on an unrelated final warning for attendance. However, in misconduct cases, for a warning to support a conclusion of misconduct, it must be directly related to the facts of the final incident. Therefore, we do not agree with the Commissioner of Labor's contention that the September 30, 2010
attendance warning placed the claimant on notice that a violation of safety rules could end in his discharge."

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT AND FINAL WARNING

As a general rule, in misconduct cases, for a warning to support a conclusion of misconduct, it must be directly related to the facts of the final incident. Thus, if employer issues a final warning regarding "Behavior A" but the final incident is "Behavior B", the final warning regarding "Behavior A" did not place the claimant on notice that engaging in "Behavior B" could end in discharge

NEW YORK UNEMPLOYMENT INSURANCE - AT A HEARING TODAY

Claimant terminated. Claimant filed for benefits. Employer objected. DOL determined claimant eligible and employer requested hearing.

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Here is a recent interesting case - illustrating the issues confronting claimants and the credibility of evidence:

"IN THE MATTER OF THE CLAIM OF BRIMAGE v. COMMISSIONER OF LABOR, 512718 (3d Dept 3-15-2012)
2012 NY Slip Op 01851
In the Matter of the Claim of NICOLE BRIMAGE, Appellant. v. COMMISSIONER OF
LABOR, Respondent.
512718
Appellate Division of the Supreme Court of New York, Third Department

Calendar Date: January 23, 2012 Decided on March 15, 2012

Appeal from a Decision of the Unemployment Insurance Appeal Board, Filed
October 25, 2010, which, Upon Reconsideration, Ruled, Among Other Things,
that Claimant was Disqualified from Receiving Unemployment Insurance
Benefits because she lost her Employment due to Misconduct.

Karen Cacace, The Legal Aid Society, New York City, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of
counsel), for respondent.

Before: PETERS, J.P., LAHTINEN, MALONE Jr., STEIN and GARRY, JJ.
Page 1

MEMORANDUM AND ORDER

Claimant was discharged from her employment at a nursing home for
allegedly falsely representing on her employment application that she had
never been convicted of a crime. Specifically, a fingerprint background
check by the employer with the Department of Health indicated that claimant
had previously been convicted of a misdemeanor in California in 1992. At the
ensuing hearing, claimant denied ever being charged or arrested while she
lived in California and asserted that she was not the person named in the
background check. Thereafter, the Unemployment Insurance Appeal Board
disqualified claimant from receiving unemployment insurance benefits on the
ground that she lost her employment due to misconduct; however, the Board
later remitted the matter so that further proof could be taken regarding
claimant's allegation of mistaken identity, as well as the issue of whether
the alleged charge against her was considered a crime or infraction in
California. Following the remittal, the Board, among other things, rescinded
its prior decision but nonetheless concluded that claimant lost her
employment due to disqualifying misconduct. This appeal ensued.

Substantial evidence supports the Board's determination that claimant is
disqualified from receiving unemployment insurance benefits because she lost
her job for entering false information on her employment application (see
Matter of Miller [Albany Hous. Auth. — Commissioner of Labor], 50 AD3d 1432,
1433 [2008]). Claimant's assertion that she was never charged or convicted of anything in California created a credibility issue that the Board had the authority to resolve against her (see Matter of Zaydman [Roman Roytberg, Inc., P.C. —
Commissioner of Labor], 87 AD3d 1192, 1193 [2011]). As for the issue
concerning the nature of the 1992 conviction, evidence exists to support the
Board's ruling that the conviction was for a crime. The fact that there may
also be proof that could support a contrary result is not dispositive (see
Matter of Johnson [Commissioner of Labor], 83 AD3d 1314, 1314 [2011]).

Peters, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

According to the Appellate Division, Third Department, issues of credibility are left to the Appeal Board as set forth in this recent case:

"2012 NY Slip Op 00694

IN THE MATTER OF THE CLAIM OF ALEASHA S. BARTON, Appellant. v. COMMISSIONER
OF LABOR, Respondent.

Appellate Division of the Supreme Court of New York, Third Department

Calendar Date December 12, 2011 Decided and Entered February 2, 2012

Aleasha S. Barton, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of
counsel), for respondent.
Page 1

MEMORANDUM AND ORDER

Claimant worked for the employer as a correction officer for approximately
three years when she came under investigation in June 2010 for alleged
improprieties. Although claimant was told by the warden of the facility not
to discuss the investigation, she did so with fellow correction officers
and, when questioned about it, stated that she did not discuss the matter.
Claimant was thereafter discharged and her application for unemployment
insurance benefits was denied. The Unemployment Insurance Appeal Board
ultimately affirmed the denial of benefits and claimant now appeals.

We affirm. The dishonesty of an employee has been held to constitute
misconduct disqualifying him or her from receiving unemployment insurance
benefits, particularly where the employment at issue requires a high
standard of honesty and integrity (see Matter of Zaydman [Roman Roytberg,
Inc., P.C. — Commissioner of Labor], 87 AD3d 1192, 1193 [2011]; Matter of
Singleton [Commissioner of Labor], 60 AD3d 1230, 1231 [2009]). Here,
substantial evidence supports the Board's determination that, after being
instructed not to discuss the investigation with anyone, claimant indeed
discussed it with her fellow employees and then was dishonest with
investigators when questioned about whether she had done so. Claimant's
assertions that she did not understand that she was not to speak with other
officers and that she eventually admitted that she had spoken with them raised credibility questions for the Board to resolve (see Matter of Zaydman [Roman Roytberg, Inc., P.C. — Commissioner of Labor], 87 AD3d at 1193; Matter of Morar [JSB Props., LLC — Commissioner of Labor], 86 AD3d 887, 888 [2011]).

Peters, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

512555

Appeal from a decision of the Unemployment Insurance Appeal Board, filed
January 27, 2011, which ruled that claimant was disqualified from receiving
unemployment insurance benefits because her employment was terminated due to
misconduct.

Before: PETERS, J.P., LAHTINEN, KAVANAGH, McCARTHY and EGAN Jr., JJ.

Copyright © 2012 CCH Incorporated or its affiliates"

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

In the matter I was handling, the conflict in testimony was not between the claimant's signed statement and later testimony but between the summary of an interview by claimant with the DOL on one hand and the claimant's testimony, the testimony of a witness and a document. Thus, on appeal to the Appeal Board, I argued that Matter of Jensen did not apply and the Appeal Board remanded the matter for a new hearing (which was held but no decision yet).

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

This is the decision referred to by the ALJ in the prior post:

"49 A.D.2d 794 (1975)
In the Matter of the Claim of Clara B. Jensen, Appellant. Louis L. Levine, as Industrial Commissioner, Respondent
Appellate Division of the Supreme Court of the State of New York, Third Department.

September 25, 1975
Greenblott, J. P., Kane, Main, Larkin and Reynolds, JJ., concur.

Claimant left her employment on March 1, 1974 and shortly thereafter moved to Florida with her husband who had retired. In her initial claim for benefits she stated that she had voluntarily left her job to move to Florida with her husband and that there was "no compelling reason other than a desire for change of climate and locale". At the referee's hearing claimant contended for the first time that she had been compelled to leave her job for reasons of health, and in support of this contention she submitted a note from a doctor which stated that he had advised claimant to quit her job because she was under great tension, but which did not advise her to relocate to Florida. The board was thus presented with conflicting evidence from which either of two conclusions as to the reasons for claimant's removal from employment could have been reached. In such a situation the "resolution of the conflict as to the cause of appellant's separation from employment" is solely for the board, where, as here, its determination is supported by substantial evidence (Matter of Weber [Catherwood], 32 AD2d 697). The board was properly within its province in finding that claimant's signed statement made upon her application for benefits more accurately reflected the true reasons for her leaving her employment.

Decision affirmed, without costs."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

In one UI matter in which I represented the claimant, the claimant was denied benefits for misconduct, viz., violation of a company policy. The claimant was an employee and was terminated. The claimant filed a claim for benefits and the employer filed an objection. The DOL investigated the claim and the objection and, as part of the investigation, interviewed the claimant by telephone. The DOL summary of interview stated that the claimant made a certain statement to the DOL investigator during the telephone investigation. Based upon that statement, the DOL denied the claimant UI benefits. The claimant at the hearing testified that the summary of interview was not an accurate description of the statement given and clarified the testimony as the hearing. The ALJ upheld the DOL determination of a violation of company policy stating that: “the Court has held that a claimant’s earlier statement is given greater weight then his testimony at the hearing. See, Matter of Jensen, 49 AD2d 794.”

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another Appeal Board case discussing credibility is set forth here - note the section in bold (emphasis supplied):

"Mailed and Filed: MARCH 02, 2012

IN THE MATTER OF: Appeal Board No. 555993

PRESENT: GEORGE FRIEDMAN, GERALDINE A. REILLY MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective April 29, 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 MURRAY HILL MEDICAL GROUP prior to April 29, 2010, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held telephone conference hearings 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 December 7, 2010 (A.L.J. Case No. ), the Administrative Law Judge sustained the initial determination.The claimant 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.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a receptionist at a medical practice from August 17, 2009 through April 28, 2010. The employer occupied five floors of an office building, with the claimant working on the fourth floor. During the period of the claimant's employment, the employer found that the claimant's customer service skills were poor.Finally, the claimant's supervisor, the Chief Operating Officer, and the Director of Human Resources met and decided as a group that the claimant would be discharged. The claimant's supervisor then prepared a memorandum outlining the various concerns that supported this outcome, including unacceptable body language with patients, eating at her work station, use of her cell phone at work, and leaving the work station without permission from her supervisor. In terms of the sequence of these events, the last event was the claimant's leaving her work station.
The issue of leaving the work station involved the claimant being observed by the supervisor on the seventh floor of the employer's offices on two separate occasions on or about April 26, 2010 without the supervisor's knowledge or permission. The employer estimates that the claimant would have been away from her work station for ten to fifteen minutes each time. The employer had a rule requiring receptionists to get permission from the supervisor before leaving their work stations for more than a minimal amount of time. The supervisor had sent e-mails to the receptionists on March 16, 2010 and April 9,2010 to remind them of this rule. These e-mails were written with the claimant and another receptionist in mind.After the claimant's supervisor wrote the discharge memo, the Director of Human Resources edited it. The employer fired the claimant on April 28, 2010. During this conversation, the Director Human Resources suggested to the claimant that perhaps she shouldn't work in the customer service industry.

OPINION: The credible evidence establishes that the employer had multiple concerns regarding the claimant's job performance by the time the employer discharged her on April 28, 2010. At the hearings, the claimant's supervisor provided contradictory testimony with respect to the specific factors that she, the Chief Operating Officer, and the Director of Human Resources discussed before agreeing to discharge the claimant.At the hearing held on August 2, 2010, she testified that she did not remember whether the incident with the claimant leaving her work station was discussed at the meeting where the decision to discharge was made. She also did not remember discussing this issue with the Director of Human Resources without the Chief Operating Officer present.Rather, she remembered that, when she met with both the HR Director and the COO,they discussed the claimant's poor customer service and eating at her desk. The supervisor further testified that she believed the claimant would have been discharged even if the incident of leaving her work station had not occurred.At the hearing held August 27, 2010, the claimant's supervisor testified that the incident with the claimant leaving her work station was the event that precipitated the meeting to discuss whether to fire the claimant. She testified that she and the COO and HR Director discussed everything that subsequently went into the memo, including the claimant's leaving her work station. She further testified that the claimant would not have been fired for poor customer service alone, as the employer was coaching the claimant regarding her customer service skills.These conflicting stories from the same witness leave us unable to credit her testimony that the claimant's two unauthorized departures from her workstation comprised the final incident triggering her discharge. We note that the claimant testified that, at the time when she was fired, she was told that she was being fired for poor customer service and an unprofessional posture. Thus, the claimant's testimony is consistent with the supervisor's testimony from the first hearing. Although we recognize that there may be reason to question the credibility of each of the witnesses in this case-whether because of self-interest, limited knowledge or fading memory- the weight of the evidence supports the conclusion that the claimant was fired for poor customer service and not for leaving her work station. Accordingly, we conclude that the claimant was fired for poor job performance which does not constitute disqualifying misconduct for purposes of the Unemployment Insurance Law, and the claimant is allowed benefits.

DECISION: The decision of the Administrative Law Judge is reversed. The initial determination, disqualifying the claimant from receiving benefits effective April29, 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 April 29, 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 GERALDINE A. REILLY, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another Appeal Board case discussing credibility is set forth here - note the section in bold (emphasis supplied):

"IN THE MATTER OF: Appeal Board No. 551306

PRESENT: LEONARD D. POLLETTA, MICHAEL T. GREASON MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective August 10, 2006, 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 GATEWAY CARGO SVC CENT INC prior to August 10,2006, 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 Commissioner of Labor. By decision filed March 26,2010 (), the Administrative Law Judge overruled the initial determination.The Commissioner of Labor appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed for a cargo service as a warehouse agent at an airport for one and a half years until August 16, 2006. He was discharged for theft of a co worker's motorcycle and other items from the employer. The claimant was arrested on a charge of criminal possession of stolen property in the third-degree (a D felony), on August 12, 2006. He pled guilty to the charge on January 29, 2009.

OPINION: The credible evidence establishes that the claimant was discharged, on August 16, 2006, for stealing from a coworker and from the employer. While the Administrative Law Judge accepted the claimant's testimony that he had been separated from employment on September 5, 2006 because the Port Authority would not return his ID, the appeal Board is not bound thereby and is entitled to pass on issues of credibility. Matter of Di Donato, 176 AD2d 11 (1991). Credibility is judged by the internal consistency of the story and the believability of the story itself. (See AB 543360.) The claimant's story was not internally consistent. The claimant changed his testimony regarding how he lost his employment and when he was arrested and for what several times. The claimant initially testified that he was arrested and incarcerated August 16, 2006, and held for three days, and so couldn't go to work because the Port Authority took his identification badge from him and he couldn't work at the airport without his identification. He also testified he was held through September 5, 2006 on that arrest. Next, he testified that his mother and lawyer told him not to go near the employer between August 19 and September 5, 2006 because they might arrest him for stealing the co-worker's motorcycle and some office supplies because they were accusing him of doing so, even though he also asserted that he didn't know about that accusation until he received the initial determination from the Department of Labor. Lastly, the claimant testified that the Port Authority took his identification badge after he was arrested in October for having an illegal handgun that he hadn't known know was in the car. As the claimant's testimony is not internally consistent and is not believable, we may reject it.The documentary evidence establishes that the employer discharged the claimant because he stole a co worker's motorcycle and other items from the employer. The certificate of disposition for his plea of guilty to criminal possession of stolen property Ianthe third-degree indicates he was arrested pursuant to this charge on August 12, 2006.The claimant's application for benefits, made on August 21, 2006, indicates that he had been fired by the employer and his last day of work was August 16, 2006. Therefore, we may conclude that the claimant was discharged on August 16, 2006 for stealing from acoworker and from the employer. We consider this to be in connection with his employment because the claimant worked at an airport and, given national security concerns, it is inappropriate to have persons who commit felonies working at an airport and his behavior was, therefore, detrimental to the employer's best interests.Accordingly, we conclude that the claimant's actions of stealing from his coworker and from the employer rose to the level of misconduct under the Unemployment Insurance Law, and he was properly disqualified from receiving benefits, effective August 16, 2006.

DECISION: The decision of the Administrative Law Judge is reversed.The initial determination, disqualifying the claimant from receiving benefits effective August 10, 2006, 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 August 10, 2006, cannot be used toward the establishment of a claim for benefits,is modified to be effective August 16, 2006, and, as so modified, is sustained. The claimant is denied benefits with respect to the issues decided herein.

LEONARD D. POLLETTA, MEMBER MICHAEL T. GREASON, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

An Appeal Board case discussing credibility is set forth here:

"Mailed and Filed: JULY 17, 2009

IN THE MATTER OF: Appeal Board No. 545733

PRESENT: TANYA R. DANIEL, EILEEN M. LONG CHELALES MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective October 5, 2008, 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 CARRIER CLEARING SERVICES prior to October 5,2008, 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 on behalf of the claimant and the employer. By decision filed March 30, 2009 (), the Administrative Law Judge sustained the initial determination.The claimant 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 as a driver's helper for about two years through October 4, 2008. He is not an alcoholic. The employer's rule prohibits the consumption of alcohol during working hours. A driver to whom the claimant was assigned complained that on October 2, 2008, the claimant had been drinking on the job.The claimant was not drinking while at work that day. The employer discharged the claimant because the employer believed that the claimant had been drinking on the job.

OPINION: The credible evidence establishes that the claimant was not drinking while in the performance of his duties on October 2, 2008. The claimant and his witness and the employer's witnesses have agreed on very little in their testimony. As the Administrative Law Judge decision stated, "Hearsay evidence cannot prevail against sworn testimony when there is nothing in the record tending to impeach the sworn testimony." (See Matter of Perry, 37 AD2d 367). However, "While credibility determinations by an ALJ are entitled to considerable weight, the Board is not bound thereby and is entitled to pass on issues of credibility." (See Matter of Donato, 176 AD2d 1102). We do not assess credibility between the claimant and the employer's witness over whether the claimant was warned in 2007 for a similar incident because such a warning would only be relevant if the claimant committed the final incident. Further, we do not assess credibility between the claimant and his witness and the employer's witness over whether the bottles found in the 2007 incident belonged to the claimant and whether the claimant made an admission to this effect because even if we were to conclude that the claimant had owned them and had admitted this to the employer's witness, such a history does not inexorably lead us to the conclusion that the claimant was drinking on the job during the final incident. Although the employer was represented by counsel at both hearings, and produced numerous witnesses, the employer did not produce one with firsthand knowledge of the final incident. The claimant is, thus, the only individual to give firsthand testimony concerning the final incident. His denial is credible, on this record, and, as a result, we have found that the claimant was not drinking while at work on October 2, 2008. Accordingly, we conclude that the claimant's actions do not rise to the level of misconduct.

DECISION: The decision of the Administrative Law Judge is reversed.The initial determination, disqualifying the claimant from receiving benefits effective October 5, 2008, 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 October 5, 2008, 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.

TANYA R. DANIEL, MEMBER EILEEN M. LONG CHELALES, MEMBER"

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NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

The leading decision from the Appeallate Division, Third Department on the issue of credibility is MATTER OF DI DONATO, 176 A.D.2d 1102 (3rd Dept 1991):

"Claimant was receiving benefits following her layoff by Manufacturer's Hanover Trust on January 27, 1988. During the time she was receiving benefits, she performed work at home for Publisher's Clearing House and submitted vouchers for payment of her compensation. She cashed the pay checks and included the amounts received as income on her tax reports. However, she failed to disclose these facts to the Commissioner of Labor. Claimant appealed the Commissioner's determination of ineligibility and overpayment based on the work done for Publisher's Clearing House. She and her daughter testified at the hearing that the daughter actually did the work and that claimant's name was used because the daughter was not eligible for home piece-work employment. An Administrative Law Judge (hereinafter ALJ) overruled the initial determination of disqualification made by the Commissioner of Labor, finding that claimant's testimony was credible. Upon the Commissioner's appeal, the Unemployment Insurance Appeal Board rejected claimant's contention that her daughter actually did the work, finding instead that claimant was not totally unemployed, that the overpayment was recoverable and that claimant had made willful misrepresentations to obtain benefits. Claimant has appealed.

Claimant contends that the questions of credibility are to be determined by the trier of facts, here the ALJ. While credibility determinations by an ALJ are entitled to considerable weight, the Board is not bound thereby and is entitled to pass on issues of credibility (Matter of Horton [Hartnett], 176 A.D.2d 1103 [decided herewith]). Judicial review is limited to ascertaining whether the Board's determination is supported by substantial evidence in the record, and if a determination is found to be so supported it must be affirmed since a reviewing court may not weigh or resolve conflicting evidence (Matter of Palomino v Bruno, 157 A.D.2d 730). Here, the documentary evidence in the record is sufficient to support the Board's determination regarding claimant's ineligibility.

Ordered that the decision is affirmed, without costs."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

The rules and regulations which guide the ALJ in hearings is found in 12 NYCRR 460:

"Section 461.4. Conduct of hearing.

(a) The administrative law judge shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. The administrative law judge shall conduct the hearing in such order and manner and with such methods of proof and interrogation as the judge deems best suited to ascertain the substantial rights of the parties. The administrative law judge may examine the parties and their witnesses. All parties shall be accorded full opportunity to present such testimony and to introduce documentary or other evidence as may be pertinent. At the commencement of the hearing, the administrative law judge shall identify all persons present and shall outline briefly the issues involved. No administrative law judge shall participate in any hearing in which the judge has an interest. Challenges as to the interest of an administrative law judge shall be decided by a chief administrative law judge or senior administrative law judge.

(b) All testimony shall be under oath or by affirmation and a verbatim record of the proceedings shall be made. In lieu of an appearance, the commissioner may submit written statements, records or other documents prior to or at the hearing subject to the provisions of subdivision (h) of this section. Such statements, records or documents shall not be the basis for the decision of the administrative law judge unless they have been received into the record pursuant to the provisions of subdivision (j) of this section. Upon consent of all parties, evidence supplemental to that introduced at the administrative law judge hearing may be made part of the record.

(c) Any party may appear in person or be represented by an attorney or agent. The administrative law judge may require such appearances as deemed to be necessary. All parties and their attorney or agent shall have the right to call, examine and cross-examine parties and witnesses. The have the right to offer relevant documents, records and other evidence which the administrative law judge may only accept into the record pursuant to the provisions of subdivision (j) of this section. Parties, or their attorney or agent shall have the right to request that subpoenas be issued to compel the appearance of relevant witnesses or the production of relevant documents, records or other evidence. They have the right to request an adjournment of the hearing for good cause shown. Translation services shall be provided to parties in accordance with established legal requirements. During the conduct of the hearing, in accordance with established legal requirements, there shall be a translation of the entire proceeding and of all relevant parts of documents introduced into evidence. At the end of the hearing, each party has the right to make a relevant statement to explain or clarify relevant points which may not have been adequately developed during the hearing.

(d) In the interest of the speedy administration of justice and without prejudice to the substantial rights of any party and for good cause shown and in the discretion of the administrative law judge, any issue in a case or any other issue related thereto may be heard and decided, though not specifically indicated in the notice of hearing. The administrative law judge must set forth on the record the reason for such action and must inform the parties of the intention to consider a new basis for denying or granting benefits, or to consider an issue not specifically indicated in the notice of hearing. The judge must inform the parties of their rights in this regard and must accord them an opportunity to request an adjournment to adequately prepare for such new basis or issue.

(e) Whenever a case is assigned to an administrative law judge the hearing or any adjourned hearing thereon shall continue before the same administrative law judge until a final disposition thereof, unless the case is transferred pursuant to section 461.7 of this Part.

(f) The chief administrative law judge, a senior administrative law judge or the administrative law judge may sever a case or may consolidate two or more cases where the interests of justice will be served and where there will be no prejudice to the substantial rights of any party.

(g) The parties, or their duly authorized representatives, may stipulate that a specified case involving an issue affecting in common certain claimants be designated as a test case and that the parties be bound by the administrative law judge's decision in such case, subject to the right of appeal. The stipulation shall be filed with the administrative law judge.

(h) Information from the department records and the case file shall be made available by the commissioner and by the administrative law judge to parties to the hearing or their representatives for the necessary preparation and presentation of the case. All parties shall have the right to call, examine and cross-examine other parties and witnesses with regard to such information.

(i) During the conduct of a hearing, any party may request that the hearing or parts thereof be closed to the public or request that documents or parts thereof be marked as confidential. When a request for closure or confidentiality is made, all present at the hearing shall be heard on the application. Upon a showing of good cause, the administrative law judge may grant such closure or confidentiality. If granted, the record and case file shall be marked to show that there is an order of closure or confidentiality, and that order shall continue in effect unless otherwise determined as a result of judicial review.

(j) In reaching a decision the administrative law judge shall consider and rely on only the evidence introduced at the hearing and those facts and law of which official notice has been taken. Official notice may be taken only in situations in which judicial notice might be taken in a court proceeding and in the same manner. The administrative law judge shall not consider, rely on, or refer to any document which has not been: (1) identified, with stated opportunity for any party to examine the document and comment, on the record; and (2) accepted for the record."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

The ALJ and Appeal Board is first guided by Labor Law Section 622:

"Sec. 622. Rules governing hearings and appeals.

1. Rules and regulations. The manner in which disputes and appeals shall be presented before referees and the appeal board, respectively, and the conduct of hearings before referees and the board shall be governed by suitable rules and regulations established by the board. .

2. Evidence and procedure. At any hearing held as herein provided, evidence may be offered to support a determination, rule, or order or to prove that it is incorrect. The appeal board and the referees, in hearings and appeals under any provision of this article, shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the hearings and appeals in such manner as to ascertain the substantial rights of the parties. Hearings governed by this article may be closed and hearing transcripts may be redacted in accordance with applicable federal or state statutory and regulatory requirements governing information confidentiality and personal privacy, including, but not limited to, article six and article six-a of the public officers law."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another discussion of credibility can be found in "REVIEW LETTER No. 4 - 6 Revised March 2009 - MEDICAL EVIDENCE":

"MEDICAL EVIDENCE


Introduction

One of the more frequent reasons given for quitting or refusing a job is the harmful effects of a worker’s health. Medical questions also may be involved when there is a loss of employment due to poor attendance.

Should decisions in these cases rest solely upon whether or not a medical certificate can be produced? What significance should be attached to the presence or absence of such a document? And if medical information is secured, how should it be evaluated? This Review Letter is concerned with these questions.

Lack of medical evidence

Even with today’s medical care programs, there may be cases of voluntary leaving of employment for reasons of health where no doctor has been consulted. Although this may ordinarily be a fact unfavorable to a claimant, it is not conclusive, and may be overcome in some cases by the weight of the evidence. Here are two Appeal Board cases which illustrate the importance of considering surrounding circumstances:

Claimant, age 33, quit her job as a meat packer in Buffalo in December, 1964 after years, explaining to her employer that she was moving with her parents and sister to Niagara Falls, making it difficult to commute, although public transportation was available to meet her needs. Upon filing for benefits, she stated that although she had always worked in the meat cooler area, in a temperature of 40 degrees, she began experiencing in the summer of 1964 stomach cramps which she attributed to the low temperature, although she never complained of this to anyone and never sought medical treatment for them. She further stated that the cramps ceased after she quit. Her attendance record was excellent. In sustaining a disqualification for voluntary leaving the Board reasoned:

“. . . we reject as incredible the claimant’s contention of physical
discomfort caused by the temperature in which she worked. For
most of her period of employment she was unaffected thereby.
Suddenly, at the time when the family is contemplating a removal
to a more distant residence, claimant commences to experience
stomach pains and suffers them, without complain to the employer
or a physician, until in December, the move is imminent and she
leaves her job, whereupon they disappear with equal suddenness.”
(A.B. 122,390; not reported)

Claimant, age 53, accepted employment with a meat product manufacturer as the operator of its smoke house. He has experience in this line, although for the last 19 years he had worked as a maltster ( a skilled occupation) in a brewery. The duties of his new job included lifting over his head containers of bologna weighing up to 70 pounds. During the day he had to make many visits to the smoke house, where the temperature rose to as high as 220 degrees, causing him to perspire excessively and to break out in a rash. In addition he was required to enter the cooler at the end of the day which gave him chills. He quit after a week and a half, his weight having dropped from 180 to 165 pounds, but without consulting a doctor. Despite the lack of medical evidence, the Appeal Board found credible claimant’s contention that the employment was detrimental to his health, and overruled a disqualification for voluntary quit (A.B. TEC-254; not reported).

Comparing the above decisions, it may be noted that because of the existence of other relevant evidence, the absence of a medical certificate was significant in the first case but not in the second. Such factors as age, training and experience, length of employment, claimant’s recitation of the symptoms, and other possible reasons or motives, may tip the scales either way.

Chronic ailments

A claimant who alleges he quit because if was aggravating a chronic ailment may sometimes submit medical evidence which confirms the existence of the condition but indicates that he was not specifically advised to stop performing the work in question. The resolution of this type of case may require, in addition to good judgment on the part of the claims examiner, accurate information on the duties and conditions of the job. Thus, although they were not advised to quit their jobs, the following claimants were held by the Appeal Board to have left with good cause (Not reported in the Service):

A postal clerk with chronic asthma who was required to work under conditions of excessive
heat, dust and high rate of speed. (UCFE-720)

A runner for a brokerage firm with osteoarthritis of the right knee (88,357)

A tugboat deckhand with a duodenal ulcer who was required to work irregular hours and
for continuous periods of up to 16 hours. (90,288)

A sewing machine operator suffering from high blood pressure and obesity who took a job trimming onions and left after a month because she could not get accustomed to the odor of onions which caused nausea and vomiting. (130,192)

In a recent misconduct case, AB 542498, the Board found that because the claimant’s illness was due to a recurrent chronic condition (asthma & bronchitis) which the claimant knew how to treat with her previously prescribed medications, it was not significant that she did see a doctor on the day of her last absence.

Similarly, the Board has held refusal of employment to be with good cause in the following cases, where the claimant’s affliction was chronic, although there was no recent medical treatment or specific advice to avoid such work:

A sales clerk who refused referral to such work in the basement of a department store on the ground, based on a previous experience, that the dampness would aggravate her arthritic back ailment. (Index 1245 #5)

A laborer in a carborundum plant who because the dust aggravated his asthmatic
condition, secured temporary work outdoors, and later refused re-employment in
the plant for the same reason he quit. The Board stated:

“It may well be that the safeguards against dust in the employer’s plant satisfy necessary standards but we are dealing with a subjective situation which makes work for this claimant, in an atmosphere which has some dust, unsuitable for him . . .” (A.B. 120,306; not reported)

That judgmental evaluations can also lead to conclusions which are adverse to the claimant is illustrated in the recent case of waitress who quit her job after one month alleging that the work aggravated a back condition which she incurred in 1962. She submitted a medical statement indicating that she suffered from a long-lasting lumbar sacral strain but that she did not receive any medical treatment for this condition from 1962 until late January 1966, about four months after she left her job. In deciding that the claimant left her employment without good cause, the Board noted these widely separated dates and concluded that “the medical evidence is insufficient to establish a casual relationship between claimant’s alleged back condition and her leaving of her employment.” (A.B. 128,902; not reported)

The effects of commuting

Just as the absence of medical advice to quit is not conclusive, so the existence of such advice must be considered in the light of other evidence. This is demonstrated in cases where there is a voluntary quit supported by the advice of a physician to stop traveling to work. Here are two examples:

Claimant, a secretary, was employed by a public relations firm in New York City for seven years, during the last two of which she commuted from her home on Long Island, with a travel time of almost two hours each way. In the fall of 1961, claimant was treated for influenza, and informed her supervisor that she intended to resign because her doctor advised her to discontinue commuting. However, since it was the busy season, she continued on the job until the end of January, 1962. She presented to the local office as statement from the doctor confirming this advice. In sustaining a disqualification for voluntary quit, the Board said:

“The medical certificate submitted by claimant fails to indicate
the basis for any advice rendered by the physician with respect
to the avoidance of travel. It is significant that claimant
continued in the employment for several months after she recovered
from the illness for which she was treated by the physician.” (A.B. 93,498;
not reported)

In another case, a clerk-typist residing in Yonkers quit her job in Manhattan after six years because she felt the traveling was affecting her health. In the last three months of her employment, her travel had increased because the firm moved from mid to lower Manhattan, although the travel time still did not exceed one and one-half hours. Her doctor certified “patient feels that riding in trains and subways causes her to have frequent colds due to drafts and temperature changes” and he further stated “avoidance of commutation advisable.” The Appeal Board nevertheless found that claimant left her job without good cause, noting that claimant’s attendance record was satisfactory and the travel time was not excessive, and concluding:

“There is insufficient proof that claimant was compelled to leave her
job for reasons of health. The most that can be said is that claimant’s
doctor agreed with claimant that she might feel better if she were not
required to commute . . . . The same might be said of practically every
employed person who commutes any distance (A-750-1233; Index 1655 #5)

Pressures of the job

A person may state that he was compelled to leave his job because he could no longer cope with its physical requirements or the pressures and tensions stemming from the attendant responsibilities, workloads or deadlines. Ordinarily, there is no reason to question the evidence which he presents concerning the care, opinion and advice received from his physician. However, there may be times when such questioning is warranted, as shown in the following recently decided cases:

Claimant, age 66, told the local office he sold his 50% stock interest in a restaurant corporation to his nephew, and resigned as secretary-treasurer and manager in March 1966, because he could not get along with the president, the other 50% owner. He further stated he was not sick or under doctor’s care and was not advised to leave. However, at the referee (now called administrative law judge) hearing he stated the repeated arguments made him so nervous that he consulted a doctor in October 1965 who advised him to do other work. He presented a note to this effect, dated October 1965, which he admittedly obtained two weeks before the hearing of September 1966.

In sustaining a disqualification for voluntary quit the Board said in part:

“We reject claimant’s testimony that he was directed to quit his job by his
physician. When interviewed at the local office claimant denied being
ill and likewise denied that he had been advised to sell out his shares of
stock in the corporation . . . . We conclude that claimant’s statement at
the local office interview was true and that his later version was not.”
(134,916; not reported)

In May 1966, claimant, a bank clerk, asked for permission to extend her two week paid vacation in July by an additional two weeks without pay in order to accompany her daughter and son-in-law on an extended trip. Despite denial of her request, she went on the trip, and during the third week sent a telegram stating that she was taking the extra time on the advice of her doctor. She was thereupon terminated. She presented to the local office a medical certificate (form ES 340) indicating a single visit to the doctor, on July 19, 1966, four days before the start of her vacation, and stating that a month’s rest was recommended because of “asthenia” (weakness, debility, exhaustion). Nevertheless, a disqualification for voluntary quit (provoked discharge) was imposed which was sustained by the Referee and not appealed further. In his decision,the Referee indicated that not only did claimant fail to inform her employer of her her alleged medical need before she started her vacation, but also that:

“The medical proof falls short of establishing more than personal
reasons for an extended vacation; it is difficult to accept claimant’s
contention that what she wanted was rest and that she got it by
traveling about in the western part of the country with her daughter,
her son-in-law and three small children . . .” (Referee #60-467-66;
not reported).

Contradictory information

Sometimes the medical certificate contains a diagnosis, a recitation of treatment dates, or a statement of the advice given to the patient which conflicts with statements made by the claimant to the local office. The certificate may even conflict with other certificates from the same or other physicians. Such a situation often can be used to advantage when attempting to arrive at the “ultimate” facts, as shown in the following cases:

A sewing machine operator contended that she left her job on October 5, 1964 because the conditions of employment, particularly arguments with co-workers, caused her to suffer nervous spasms, for which she was under medical treatment. There was also evidence that prior to quitting she had protested to her union representatives because she believed she was not receiving the correct incentive bonus payments, but was advised by them to remain on the job. She produced a certificate from her physician stating:

“In October 1964 I advised her to leave her position of work. She was working under conditions of great tension, which gave her severe intestinal spasms.” In sustaining a disqualification of voluntary quit the Board said:
“The medical certificate which claimant produced does not establish
that claimant’s health suffered any detrimental effect because of the
conditions of employment. It is significant that claimant’s physician
stated that he had advised claimant to leave her job in October,
whereas claimant did not see the physician during that month until
she had already become unemployed at least two weeks prior to the
time of such visit . . . The entire record tends to indicate that
claimant left the job because she was dissatisfied wit the fact that the
employer had instituted the incentive-bonus plan . . .” (A.B. 119,288;
not reported)

A stock brokerage clerk who resigned after six years on February 17, 1965 for “medical reasons” submitted medical statements indicating that she had been treated for an upper respiratory virus infection from December 14, 1964 to January 20, 1965 (discharged cured) and that she suffered from general weakness and anemia and has been advised to resign in order to get more rest and improve her general health. She filed for benefits on March 1, 1965. However, the employer’s records indicated that she was absent from December 1 to 4, 1964 for cystitis and on February 16, 1965 for a virus, and was not absent from work for any reason from December 14, 1964 to January 20, 1965. The Appeal Board held the quit to be without good cause, stating:

“The credible evidence indicates that whatever may have been
claimant’s reason for leaving her employment, it was not in
the interest of protecting her health. The medical statements
are of little probative value because, as recognized by the referee,
they are inconsistent, both with each other and with the
employer’s attendance records . . .” (A.B. ???,189, not reported)

Claimant, a wirer and solderer for a manufacturer of electronic devices, was discharged on April 13, 1962 because of absence that day despite prior warning about her poor attendance. Her excuse for that last absence was that she had to take her daughter to the doctor. However, the doctor submitted a medical certificate indicatingthat neither claimant nor her daughter visited his office during the entire month of April. The Board, therefore, rejecting claimant’s excuse, concluded that the absence was for non-compelling reasons and sustained a disqualification. (A.B. 93,119; not reported).
Possibility of reassignment

In 1962, the Appeal Board considered the case of a floor man for a wire and cable manufacturing company who quit his job after three weeks telling his employer that he had another job. When he filed for benefits he stated that the true reason was that he suffered from claustrophobia and could not work in a factory. When he applied for the job he filled out a detailed medical questionnaire in which he stated that he had no prior history of mental illness, which was not tue, since he had been under medical care for psychoneurosis for several month just prior to this job. Since the employer reported that had the claimant presented his problem, he would have been transferred to outside employment, the quit was held to be without good cause (A.B. 93,411, not reported in the Service)

This case points up the necessity for finding out whether a claimant, who was no longer able to perform his assigned tasks or whose health was being adversely affected by his work, sought other avenues of solution instead of quitting. It would also be important to determine whether such efforts might have been successful, rather than futile gestures.

Possibility of a leave of absence

The principle that a claimant does not have good cause for voluntary leaving unless he had explored all other alternatives includes asking for a leave of absence where the ailment or disability is of a temporary nature. Such a circumstance was at issue in AB 493468 concerning a cashier for a retail chain of stores who left employment due to pain caused by a herniated lumbar disc. The period of claimant’s disability was about two months, and the employer indicated that they would have offered her physically suitable work as a greeter, or a leave of absence. However, the claimant never asked. Instead she stayed out of work for a while and then resigned. The Board, finding that her actions lacked prudence, held her subject to disqualification for voluntary leaving without good cause.

Denial of a Reasonable Accommodation or Leave Request

The concept of “reasonable accommodation” developed in the period since the first release of this publication in 1967. It is defined as: “…any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.” USDOJ (Department of Justice) If a claimant alleges that his or her employment loss related to physical restrictions with respect to duties or working conditions, and that the restrictions were caused by a permanent or temporary disability, it is necessary to establish whether convincing evidence of these restrictions exist and whether such evidence was presented to the employer. Loss of employment in such circumstances is not at all uncommon as in the following cases:

A fire safety director for a hotel, able to work only part-time while recovering from kidney surgery, was held to have had a compelling reason for failing to return to work as the employer insisted he work full time and failed to explain why his request could not be granted (AB 540711).

A front desk clerk for a hotel requested permission to sit while on duty in order to relieve occasional dizziness brought on by her pregnancy. Although the employer knew the claimant was pregnant, her request was denied. The Appeal Board found it significant that the employer presented no evidence to support their assertion that claimant was informed that she must submit a doctor’s note in order to obtain the requested accommodation. The employer’s refusal to provide an accommodation for claimant’s temporary disability gave the claimant good cause to leave (AB 542082)

Conclusions

When a claimant states he quit or refused a job for reasons of health, he should be questioned to find out whether he is or has been under medical care. However, this does not rule out the possibility of denial of benefits despite such care, or payment of benefits in the absence of such care, when other evidence is considered.
The probative value of a medical certificate should be weighed in the light of the circumstances of the case. For example, it may contain, instead of a diagnosis, a description of claimant’s complaint, or it may be merely a repetition of claimant’s feelings regarding the cause of his ailment rather than a confirmation of them. Also, it may contain advice which is not obvious from the diagnosis, yet with no basis given for such advice.

A medical certificate may fail to support, and may even refute, a claimant’s contentions. For example, the diagnosis (estimate of the future course of the ailment), treatment dates and advice given may be at variance with the information supplied by the claimant. There may be a lack of correlation with the claimant’s job attendance record. Or the medical visit and treatment dates may be so remote from the separation or refusal date that a causal relationship is questionable.
The fact that a medical certificate confirms claimant’s statements regarding his ailment and his doctor’s advice to quit should not automatically result in a determination in the claimant’s favor, since there may by other controlling factors. For example, the claimant may have exaggerated or incorrectly described to his physician the conditions under which he worked or the duties he performed. Also, the claimant may have failed to request or accept an exemption from some duties, a reassignment or transfer, or, if the health condition is temporary, a leave of absence which was available to him. Thus verification with employer or physician may be in order."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another discussion of credibility can be found in "REVIEW LETTER 2-2000 - MAY, 2000 -SUBSTANCE ABUSE TESTING":

"CREDIBILITY & EXPERT EVIDENCE

In general, if a person fails an alcohol breath test pursuant to an employer's policy or to Federal Regulations, and attributes such failure to something other than a prohibited consumption of alcohol, his statements should be scrutinized and closely questioned. For instance, a claimant might contend that he consumed a prescription or over the counter cough medicine containing alcohol. Such a claimant must be asked to identify the precise medicine, to state its alcohol content (indicated on the bottle), and to specify how much of it was consumed in the six to eight hour period prior to the breath test. Although it is tempting to dismiss such a claimant statement as incredible, strictly speaking its rebuttal requires expertise. The employer would ultimately need to provide expert evidence that the test result would not have been caused by the amount of cough medicine consumed.

Although the expert opinion of a qualified chemist is often necessary to rebut the specific denials heard from those accused of inappropriate alcohol or drug use, some general knowledge about the rate at which alcohol is metabolized may make it easier to distinguish credible explanations from unlikely and preposterous ones. According to the American Medical Association, an average sized person who consumes three or four units of alcohol within an hour or two, and then stops, will have a blood alcohol level which peaks three to four hours after he or she began drinking, at a level at or above the legal limit for driving in most states. The alcohol would not be completely eliminated from the body until six to eight hours after the drinking began. One "unit" of alcohol is defined as a small glass of wine, a glass of beer, or a shot of hard liquor.

In a recently argued case currently pending before the Appeal Board, the claimant, a commercial driver, failed a breathalyzer test administered at the end of his eight hour shift. Although the test indicated a low amount of blood alcohol, employer had a zero tolerance policy. Furthermore, the employer believed that any alcohol reading signified that the claimant had been drinking during his shift. Claimant was discharged. The claimant argued that he did not drink during his shift and that the test result could only have been caused by the drinking he did the night before. He stated he stopped drinking at 11:00 p.m. The employer produced an expert witness who testified that claimant's story was not possible. A positive reading at the end of his shift had to have come from alcohol he consumed during the previous six to eight hours.

SUMMARY

* Employers can legitimately demand that employees submit to drug and alcohol tests.

* Failing a test or refusing to submit to a test is misconduct.

* Common test methods:

alcohol - breathalyzer or blood test;

drugs - urinalysis or hair test

* Failing a pre-employment test can also be disqualifying.

* Common evidentiary problems:

claimant's denial of drug or alcohol use requires employer to demonstrate chain of custody

claimant's statement, although lacking credibility, must be rebutted by an expert."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Here is the additional discussion of the topic of credibility found in "REVIEW LETTER 2-84, Attendance Related Separation Issues, Section VII, CREDIBILITY.":

"CREDIBILITY

As Oscar Wilde once observed, "Truth is rarely pure and never simple." Therefore, it is not surprising that one of the more difficult problems facing a claims examiner in resolving separation issues is testing the credibility of the parties. In the area of attendance related discharges, evaluating credibility is more difficult because often only the claimant knows the reason for the absence or lateness. This section explores means of evaluating credibility.

Verification

Proper interviewing technique requires that the credibility of any individual with exclusive knowledge of necessary facts be tested. The best means of certifying a statement is through independent sources outside the control of either the claimant or the employer. For example, the Weather Bureau would be able to provide information tending to confirm a claimant’s statement that an absence was caused by heavy snow. Other forms of independent verification frequently available and which the claims examiner should utilize include traffic and transit reports, police reports, medical documentation, and repair bills. The following case illustrates the importance of independent verification in evaluating the credibility of claimant’s explanation for the last absence/lateness.

Claimant W.J. had been absent 27 times between January 1, 1981 and September 18, 1981 when he was discharged. He had been on written warning for excessive absenteeism. He insisted that his last absence was compelled by his girlfriend’s hospitalization. He was discharged at 10:56 a.m. on September 18.

The Appellate Division sustained the disqualification for misconduct, noting, "The record is clear that claimant did not take his girlfriend to the hospital on September 17, 1981 but at 3:50 p.m. on September 18, 1981, some five hours after he had been notified at 10:56 a.m. that his employment had been terminated." (Matter of Johnson, 89 A.D. 2d 1050)

On occasion, the employer may have evidence tending to support or refute the claimant’s statement. A typical example is the employer’s possession of a signed acknowledgement of warning, refuting the claimant’s contention that (s)he was never warned. Note also the following example:

Claimant C.B. was absent 13 times in four months and had been warned. He was discharged. Claimant contended he was totally dependent upon a particular co-worker to get to work, and that his absences were caused by the co-worker’s absences.

Unpersuaded, the Appeal Board sustained a disqualification for misconduct. "We reject such contention in light of the employer’s attendance records showing the claimant reported to work on many occasions that the co-worker did not report to work." (A.B. 337,675)

Inconsistent Statements

Occasionally a statement will be self-contradictory or otherwise incredible. The Appeal Board recently rejected a claimant’s contention "that she failed to contact the employer on each day of her absence because she was too emotionally distressed, in view of her testimony that she would have complied with the rule if she had known she would be discharged for its violation." (A.B. 334,024)

At times, it is the employer’s statement that proves to be incredible. For example, the Appeal Board rejected an employer’s allegation of misconduct and found a claimant eligible for benefits, in part because despite the employer’s contention of discharge for latenesses, the claimant had been told he would not be dismissed if he agreed to drop an earlier union grievance against the employer. (A.B. 341,468)

There is a rule of evidence that statements made by a party at a time (s)he has no reason to believe they will be used adversely may be given more weight than subsequent inconsistent statements or testimony, even if given under oath.

This principle applies to unemployment insurance cases. For example, a claimant’s statement to the local office that his last lateness was caused by a family medical emergency might be viewed with skepticism if he had told the employer at the time of his dismissal that he had been late because he overslept. Similarly, at the hearing or appeal level, statements made by the claimant or employer which conflict with those given to the local office before their effect was known may be found less credible (Cf. Matter of Jensen, 49 A.D. 2d 794). For this reason, it is of the utmost importance for the claims examiner to obtain precise, detailed and complete statements from all parties.

Patterns of Absence

When a claimant alleges an absence was due to illness or other compelling reason but cannot provide documentation, the claims examiner should look to the claimant’s attendance history to see if there is a pattern of absence: for example, absence on Fridays or Mondays, the day following pay day, or as leave time accumulates. If a precipitating absence falls within a pattern, it should be scrutinized carefully. While the claims examiner should not automatically exclude the possibility that the claimant did have a compelling reason for the last absence, a precipitating absence falling within a pattern of absences is strongly suggestive of non-compelling, and thus disqualifying, reason for absence. The following cases are illustrative:

Claimant, a security guard, worked for a hospital. She had been discharged for absenteeism, but rehired with a warning that her attendance would be closely monitored. Thereafter, claimant was absent three times, all on Sundays. She requested Monday, February 14, 1983 as a day off, then failed to report to work on Sunday, February 13.

The Appeal Board rejected the administrative law judge’s conclusion that claimant’s last absence was an "honest mistake", finding "…she was fully aware that she was required to work on Sunday, February 13, 1983. Her failure to report to work on Sunday, February 13, 1983 was contrary to the employer’s interests… Therefore, we find that claimant’s employment came to an end due to misconduct in connection therewith." (A.B. 346,644)

Claimant H.D., on warning for poor attendance, was absent three consecutive Mondays prior to his discharge. On the last Monday, the absence precipitating his discharge, he was required to be in Family Court to contest a support action. He called his employer in the morning to notify it that he would be late and again, later on, that he would not be in at all. He was in court all day.

The Appeal Board found that, "Though his attendance record may have been poor, his last absence was for a compelling reason. Accordingly, claimant did not lose his employment through misconduct…". (A.B. 331,708)"

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

More from the "REVIEW LETTER 1-2009, March 2009, UNEMPLOYMENT INSURANCE – PRINCIPLES & PRACTICES" - which sets forth the guiding rule the DOL bases its determinations - this discussion is on Voluntary Separation For Health Reasons and I have emphasised certain passages (also another review letter is referred to and will be posted here later):

"QUIT DUE TO HEALTH REASONS

It is well established that a claimant can have good cause to leave employment harmful to his health, provided no other remedy is feasible. However, the question of whether a doctor advised a claimant to leave, while important, is not always controlling. Such advice is simply one piece of evidence. A claimant may establish good cause for leaving a job due to health reasons, even though his/her doctor did not advise quitting. Whether a health condition or a danger to the claimant’s health actually existed, and whether such health condition was caused by or would be exacerbated by continued employment must be determined by examining all of the facts and circumstances, not solely relying on whether a claimant was specifically advised by a doctor to leave his job. Applications of these principles are discussed in several case summaries below. However, a more complete discussion of the topic of medical evidence can be found in Review Letter No. 4-67, MEDICAL EVIDENCE, re-released March 2009.

In some circumstances the conditions of the job are easily shown to be harmful. Several employees of a thermometer factory developed headaches, dizziness, and other symptoms that were eventually shown to be typical of mercury poisoning. Their complaints to the NYC Department of Health resulted in a temporary closure of the factory by order of the Department due to impermissible levels of mercury vapor in the air in several areas in the factory. Workers who quit after learning of these facts were held to have quit with good cause regardless of whether they had any symptoms or had consulted a doctor. Their fears that continuing in that employment would be harmful to their health were genuine and reasonable.

A recent case concerned a claimant who developed a condition known as deep vein thrombosis. His treatment for the condition was well documented. The doctor advised the claimant to avoid standing for long periods of time. However, since the claimant’s job required long periods of standing, it did not matter that the doctor did not specifically advise the claimant to quit. Good cause was established when the facts made it clear that continuing in that job was harmful to this claimant’s health due to his specific condition. In a case such as this, after determining a claimant to be eligible for benefits, the task of the Unemployment Insurance Division is to assist the claimant in finding a different occupation by referring him for evaluation and counseling. (See Special Bulletin A 710-23 Search for Work, Section 3, para. 4, November 17, 1981)

Appeal Board 542700 concerned a claimant whose chronic asthmatic bronchitis was worsened by various allergens and irritants in the employer’s workplace and who, as a result, had arranged to work for the employer from her home. She ultimately quit when the employer’s requirement that she attend training at the employer’s premises caused her to become ill. Although a doctor did not advise the claimant to quit, the Appeal Board decided that “…the claimant had satisfactorily established her long term medical disability without the need for current corroborative medical documentation. Accordingly, we conclude that the claimant quit her job for a compelling medical reason…”

A claimant was held by the Appeal Board to have left with good cause when her doctor advised leaving the job due to heart palpitations caused by an increased work load and the harassment of her supervisor, who the Board found “…regularly berated, yelled at and criticized the claimant.” (AB542712) Significantly, the employer failed to reduce any of the claimant’s oral complaints to writing as their Human Resources policy required, nor did the employer make any effort to address her complaints about the supervisor’s behavior.

After an absence of several days due to an episode of gout, a security guard informed his employer that he was ready to return to work. At the employer’s request he forwarded to the employer medical documentation obtained at the onset of his illness explaining the reason for his absence. When the employer demanded more recent documentation releasing him to return to work he was unable to comply promptly due to the fact that he had neither medical insurance nor a primary care physician. When it was clear to him that he would be unable to submit the required documentation by the deadline, he left his job rather than face certain dismissal. He was held to have left with good cause (AB541982).

When a doctor explicitly leaves the decision to quit up to the claimant, there can still be a finding of good cause. The Appeal Board recently ruled in AB 543291that medical evidence indicated that claimant experienced a high risk pregnancy due to a history of hypertension. Because she was pregnant, she was unable to take her usual medications for migraines, or medication for lumbar pain. In the month prior to her separation, she spoke to her physician about the stress she was under at her job. The physician advised her to consider stopping work earlier than she had intended if the stress became too great. During the next month she felt increasing stress due to her employer’s assigning additional duties to her and left her job. A claimant’s subjective judgment regarding the effect of stress is not generally sufficient to establish good cause for quitting. But in this case there was substantial medical evidence supporting the claimant’s decision, as well as evidence establishing the stressful nature of her work which, taken together, established good cause for leaving.

In another recent decision, AB 543446, the Appeal Board addressed the case of an asthmatic claimant whose complaints to her employer with respect to her co-workers’ smoking in the office went unheeded for some time. Ultimately, the claimant was forced to quit. The Board, relying on an Appellate Division decision, (Matter of Halpern, 265 AD2d 702), stated that “…fear for one’s health caused by cigarette smoke in the workplace constitutes good cause to quit, even without proof of allergy to cigarette smoke, or medical advice to quit.”

By contrast, there have been cases in which the doctor statement was deemed to be unacceptable as evidence supporting good cause to quit. In AB 513240, the Board sustained a disqualification, finding that the doctor’s note produced by claimant was dated three months after she had quit. The Appeal Board concluded that her resignation was not based upon a doctor’s diagnosis, but instead upon her own opinion that her job was causing her stress.

Thus, medical evidence must be evaluated for credibility and connection to the action of quitting just as any other evidence must be. Good cause for quitting due to health reasons can be established by evidence of a claimant’s medical history and chronic conditions. It need not be based on recent advice from a doctor."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

More from the "REVIEW LETTER 1-2009, March 2009, UNEMPLOYMENT INSURANCE – PRINCIPLES & PRACTICES" - which sets forth the guiding rule the DOL bases its determinations - and I have emphasised certain passages:



"CREDIBILTIY IN SEPARATION ISSUES

The Java decision brought about revisions in federally mandated procedures for obtaining information and issuing determinations in disputed claims: “The Court’s stress on speeding benefit payments to unemployed workers suggests this factor appropriately is the key criterion to be used in choosing among alternative procedures for implementing the requirements stated in the decision. This objective of prompt payment seems clearly, in the Court’s view, to suffuse the entire unemployment insurance program.” (U.I.P.L. No. 1145, Section I, Promptness of Payment, para. 5 November 12, 1971)

Everything should be done to avoid delays in the issuance of benefit payments due to uncertainties about claimant or employer credibility. Although the Department’s fact-finding processes are consistent with federal standards and are designed to ease the resolution of factual disputes, the information may still be incomplete. Although there is no such thing as a perfect case, nevertheless decisions must be made expeditiously: “Determinations on issues arising in connection with new claims may be considered on time within the meaning of the Court’s requirement for promptness if accomplished no later than the second week after the week in which the claim is effective” (UIPL No. 1145, Section IV, Promptness of the Determination Process, para. 1 November 12, 1971). The Federal timeliness standards mandate that non-monetary determinations be made in twenty-one days upon the detection of an issue.

When an employer’s statement consists entirely of repeated general accusations that the claimant violated a “known policy” and despite requests for details or clarification, none is forthcoming, there is no information to overcome the statement provided by the claimant. If the claimant denies the accusations, the determination is made in the claimant’s favor since there is an insufficient basis for denying benefits. As previously discussed in Field Memo 5-85, which dealt specifically with “Fact Finding and Employer Service Companies,” when an allegation is made against a claimant by an employer representative or agent, and that allegation is directly denied by the claimant, the rules of evidence permit us to give greater weight to the claimant’s statement. Undocumented contentions conveyed to the department by someone who does not possess first hand knowledge of the pertinent facts should not be given greater weight than a claimant’s first-hand denial. However, employers should first be told that their failure to provide the requested details or clarification and/or access to individuals with first-hand knowledge of the relevant circumstances may result in greater weight being given to the claimant’s first-hand statement.

The Appellate Division of the NY State Supreme Court, describing the philosophical basis of the Unemployment Law, has written: “This is a remedial statute, a humanitarian statute, and should be construed accordingly. It is the general rule that a liberal construction is accorded statutes which are regarded by courts as humanitarian and which are grounded on a humane public policy” (Matter of Machcinski, 277 AD 634). If it appears, despite reasonable attempts to obtain information from both parties, that each party’s position is equally believable or equally supported by evidence, the matter should simply be resolved in the claimant’s favor. There may be extraordinary situations that might justify further investigation. But when the claimant and the employer are equally believable, our determination should result in claimant eligibility. As applied to matters of credibility, a “liberal construction” means: when both parties are equally believable, pay the claimant.

Resolving such situations in the claimant’s favor is consistent with the overall purpose of the unemployment insurance program. After reasonable fact-finding, the claimant should be given the benefit of a doubt whenever credibility or the weight of evidence seems evenly balanced. In this way, benefits can be paid promptly, and the state as a whole benefits from the additional funds put in circulation. Such determinations are completely proper, provided they are supported by substantial evidence. It is important to remember that parties have hearing rights and that the initial determination is not the final word on the question of a claimant’s eligibility. Additional discussion of the topic of credibility may be found in REVIEW LETTER 2-84, Attendance Related Separation Issues, Section VII, CREDIBILITY."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

In determining credibility issues, the DOL is guided by certain principles and practices as set forth in Review Letters. Here is the continuation of the introductory paragraph of "REVIEW LETTER 1-2009, March 2009, UNEMPLOYMENT INSURANCE – PRINCIPLES & PRACTICES" - which sets forth the guiding rule the DOL bases its determinations:

"BENEFITS “WHEN DUE”

The nationwide Unemployment Insurance system was established by the enactment of the Social Security Act in 1935. Section 303(a)(1) of the Social Security Act requires a state unemployment law to provide for “…such methods of administration …as are found by the Secretary of Labor to be reasonably calculated to insure full payment of unemployment insurance compensation when due.” A discussion of the mandate to pay benefits “when due” is a useful context from which we gain perspective on the time tables and guidelines for making determinations.

In a 1971 case before the United States Supreme Court, California Department of Human Resources v. Java, 402 U.S. 121(1971), the phrase “when due” was interpreted by the Court to mean “at the earliest stage of unemployment that such payments [are] administratively feasible after giving both the worker and the employer an opportunity to be heard.” In its decision, the Court found that a provision of California’s Unemployment Law requiring benefits to be withheld during the pendency of an employer’s objection to the claimant’s eligibility, (after due process fact finding and the issuance of a determination of eligibility), violated the “when due” provision of the Social Security Act. The statutory phrase “when due” and the Court’s interpretation of it, form the basis for the US Department of Labor’s guidelines for the issuance of timely unemployment insurance determinations and payments that New York and all other states are required to follow.

The Federal timeliness guidelines for payments and determinations recognize that in some cases fact-finding may be lengthy and complex, but require nevertheless that the largest proportion of claims be examined and resolved as quickly as feasible."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

In determining credibility issues, the DOL is guided by certain principles and practices as set forth in Review Letters. I will begin with the following from the DOL website "REVIEW LETTER 1-2009, March 2009, UNEMPLOYMENT INSURANCE – PRINCIPLES & PRACTICES" - the following is the introductory paragraph:

"In difficult economic conditions the unemployment insurance system becomes increasingly important. As has happened often before, a rise in the unemployment rate and the resulting extension of benefits requires that the department provide services to larger numbers of people for longer periods. These are the precise circumstances for which unemployment insurance was created. This Review Letter is intended to re-affirm the Department’s mission to pay Unemployment Insurance benefits when due to those who lose their jobs through no fault of their own. In the absence of credible, sufficient evidence that a denial of benefits is appropriate, prompt payment of benefits claimed is our highest priority.

As part of the Department of Labor, the UI Division also shares a duty to extend the protection of Labor Laws to all entitled workers. This Review Letter will also discuss that perspective in the context of some selected issues that have been the subject of recent decisions by the Appeal Board and Department initiatives. In other instances, an analysis rooted in the purpose of the system has given rise to a new view of an old problem.

The unemployment insurance system, enacted during the Great Depression, serves several purposes. It fulfills a humanitarian objective clearly defined in Section 501 of New York’s Unemployment Insurance Law that declares the public policy of the state as follows:

“Economic insecurity due to unemployment is a serious menace to the health, welfare, and morale of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden, which now so often falls with crushing force upon the unemployed worker and his family.”

The system’s second, broader aim is to minimize the effect of a national economic downturn or recession, by putting money into circulation during periods of high unemployment. These funds have been referred to as “high velocity dollars”, by which is meant that the money will be immediately spent. This rapid spending slows down the vicious cycle of a recession whereby layoffs cause loss in income, followed by reductions in consumer spending, which in turn leads to further business failures and layoffs caused by reduced sales revenue and lowered demand for products that people can’t afford to buy. Unemployment insurance also helps to prevent the dispersal of the employer’s trained labor force, the sacrifice of skills, and the breakdown of labor standards during temporary unemployment. Since its inception seventy seven years ago, the system has been a complete success. It is credited with having shortened recessions and it has provided a crucial safety net in hard times for millions of unemployed workers and their families."