Thursday, May 31, 2012
Wednesday, May 30, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
In Mailed and Filed: MARCH 16, 2012 IN THE MATTER OF: Appeal Board No. 560534, these were the allegations of sexual harassment:
"In the last week of November 2010, the employer commenced an investigation into asexual harassment complaint against the claimant. On December 7, 2010, the claimant sent numerous text messages to one of the clinicians, a subordinate on his team, from 9:46 P.M. until 11:00 P.M. about rumors related to a complaint of sexual harassment against the claimant that this same clinician had brought, or was thinking of bringing, to the employer's attention.
On or about December 17, 2010, the claimant placed a picture of himself and another clinician who was a subordinate on his team on his desk top computer as a screen saver. The picture was taken at the employer's Christmas party and shows the clinician with her leg wrapped around the claimant. The computer screen was visible only when seated behind the claimant's desk and the claimant took the picture off the computer the next day."
The Appeal Board held that there was no evidence of misconduct:
"...the substance of the texts was not offensive. The credible evidence further establishes that the claimant placed the picture from the Christmas party on his computer as a screen saver for one day on or about December 17, 2010, and that the claimant's computer screen was visible only when seated behind the claimant's desk."
"In the last week of November 2010, the employer commenced an investigation into asexual harassment complaint against the claimant. On December 7, 2010, the claimant sent numerous text messages to one of the clinicians, a subordinate on his team, from 9:46 P.M. until 11:00 P.M. about rumors related to a complaint of sexual harassment against the claimant that this same clinician had brought, or was thinking of bringing, to the employer's attention.
On or about December 17, 2010, the claimant placed a picture of himself and another clinician who was a subordinate on his team on his desk top computer as a screen saver. The picture was taken at the employer's Christmas party and shows the clinician with her leg wrapped around the claimant. The computer screen was visible only when seated behind the claimant's desk and the claimant took the picture off the computer the next day."
The Appeal Board held that there was no evidence of misconduct:
"...the substance of the texts was not offensive. The credible evidence further establishes that the claimant placed the picture from the Christmas party on his computer as a screen saver for one day on or about December 17, 2010, and that the claimant's computer screen was visible only when seated behind the claimant's desk."
Tuesday, May 29, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
Here is a recent case from the Appeal Board - in this case, the conduct occurred while claimant was on a break off-premises but in uniform:
Mailed and Filed: MARCH 26, 2012
IN THE MATTER OF: Appeal Board No. 562761:
"OPINION: The credible evidence establishes that the claimant lost his job, in part, because the senior vice-president accused him of behaving in a lewd manner as a female passed by him, a charge denied by the claimant. (The claimant was also accused of making inappropriate comments, but at the hearing the senior vice-president conceded she could not hear anything that the claimant said.) However, even if the claimant behaved in the manner of which he was accused, the record does not establish that his behavior rose to the level of misconduct for the purpose of establishing eligibility for unemployment insurance. The employer has no policy prohibiting sexual harassment, but only a policy requiring basic good manners. It is noteworthy that when the employer suspended and then discharged the claimant, it referenced the smoking and cell phone use, not merely the alleged behavior towards the woman. While his behavior, if true, would certainly be inappropriate and would justify the employer's decision to discharge him, the record does not establish that the claimant knew or should have known that he was placing his job in jeopardy. Accordingly, I conclude that the claimant was separated from employment was under non disqualifying circumstances."
Mailed and Filed: MARCH 26, 2012
IN THE MATTER OF: Appeal Board No. 562761:
"OPINION: The credible evidence establishes that the claimant lost his job, in part, because the senior vice-president accused him of behaving in a lewd manner as a female passed by him, a charge denied by the claimant. (The claimant was also accused of making inappropriate comments, but at the hearing the senior vice-president conceded she could not hear anything that the claimant said.) However, even if the claimant behaved in the manner of which he was accused, the record does not establish that his behavior rose to the level of misconduct for the purpose of establishing eligibility for unemployment insurance. The employer has no policy prohibiting sexual harassment, but only a policy requiring basic good manners. It is noteworthy that when the employer suspended and then discharged the claimant, it referenced the smoking and cell phone use, not merely the alleged behavior towards the woman. While his behavior, if true, would certainly be inappropriate and would justify the employer's decision to discharge him, the record does not establish that the claimant knew or should have known that he was placing his job in jeopardy. Accordingly, I conclude that the claimant was separated from employment was under non disqualifying circumstances."
Friday, May 25, 2012
Thursday, May 24, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
But what if the claimant has received adequate training, etc.? What if the claimant has received a prior warning regarding behavior in the workplace?
The question remains - what alleged conduct rises to the level of misconduct? Can behavior, which would not be considered sexual harassment under federal and state law, still be penalized by the DOL?
The question remains - what alleged conduct rises to the level of misconduct? Can behavior, which would not be considered sexual harassment under federal and state law, still be penalized by the DOL?
Wednesday, May 23, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
When a claimant is faced with such an allegation of misconduct, the Appeal Board may address the issue of policy and training given. For example in Mailed and Filed: JANUARY 30, 2012 IN THE MATTER OF: Appeal Board No. 555346:
"Our review of the record reveals that the case should be remanded to hold a hearing. A further hearing should be held to develop the record regarding whether the claimant knew or should have known that his actions were detrimental to the employer's interests. We have determined that there is good cause to consider the employer's sexual harassment policy as well as other relevant policies, procedures, guidelines, or practices, in effect at the time of claimant's employment and known to the claimant. The Administrative Law Judge shall confront the parties with the Summaries of Interview and properly enter those documents into the record.The employer should produce the sexual harassment policy and training in effect at the time of claimant's hire and evidence that claimant received the policy and/or training. Any other relevant policies or guidelines, as described in the preceding paragraph, should also be produced. The claimant, his witness(es), if any, and any firsthand witness(es) for the employer should be prepared to testify about what the claimant knew about such policy and/or training and should produce any documents the claimant received from the employer in this regard."
"Our review of the record reveals that the case should be remanded to hold a hearing. A further hearing should be held to develop the record regarding whether the claimant knew or should have known that his actions were detrimental to the employer's interests. We have determined that there is good cause to consider the employer's sexual harassment policy as well as other relevant policies, procedures, guidelines, or practices, in effect at the time of claimant's employment and known to the claimant. The Administrative Law Judge shall confront the parties with the Summaries of Interview and properly enter those documents into the record.The employer should produce the sexual harassment policy and training in effect at the time of claimant's hire and evidence that claimant received the policy and/or training. Any other relevant policies or guidelines, as described in the preceding paragraph, should also be produced. The claimant, his witness(es), if any, and any firsthand witness(es) for the employer should be prepared to testify about what the claimant knew about such policy and/or training and should produce any documents the claimant received from the employer in this regard."
Tuesday, May 22, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
Yesterday's post of the recent Appellate Division highlights the current view that in order for a court to find a hostile work enviornment, under federal or state law, the conduct cannot be isolated or occurred over the course of many years and must be sufficiently severe or pervasive so as to create an actionable hostile work environment.
Monday, May 21, 2012
NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT
CLAUBERG v. STATE, 512099 (3d Dept 5-3-2012)
2012 NY Slip Op 03487
ALFRED CLAUBERG, Appellant, v. STATE OF NEW YORK, Respondent.
No. 512099
Appellate Division of the Supreme Court of New York, Third Department.
Calendar Date: January 5, 2012 Decided and Entered: May 3, 2012
Appeal from a judgment of the Court of Claims (Collins, J.), entered June 18, 2010, upon a decision of the court in favor of defendant.
Cronin & Byczek, L.L.P., Lake Success (Rocco G. Avallone of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of
counsel), for respondent.
Before: PETERS, P.J., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.
ROSE, J.
MEMORANDUM AND ORDER
Claimant, a correction officer employed by the Department of Corrections and Community Supervision since 1997, commenced this action pursuant to Executive Law § 296 claiming that he was subjected to retaliation and a hostile work environment. After trial, the Court of Claims concluded that claimant failed to establish either claim and dismissed the action. Claimant appeals.
In support of his retaliation claim, claimant contends that the discipline he received after engaging in an on-duty physical confrontation with another correction officer was retaliatory because he had previously filed complaints against his supervisors alleging racism. Claimant argues that the Court of Claims erred by overlooking the fact that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. We are not persuaded.
To establish a claim for retaliation, claimant was required to prove that he engaged in protected activity, that his employer was aware that he engaged in such activity, that he suffered an adverse employment action based upon his activity and that there is a causal connection between theprotected activity and the adverse action (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]; Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d 1464, 1466 [2011]). While the first three elements of a retaliation claim are not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant. In reaching that conclusion, the court credited the version of events reported by the witnesses to the
confrontation and determined that claimant was the aggressor. We afford deference to that credibility determination (see Kinge v State of New York, 79 AD3d 1473, 1480 [2010]; Shirvanion v State of New York, 64 AD3d 1113, 1114 [2009]). Also, the court's finding that claimant's confrontation was more serious than the unrelated incident is supported by the undisputed evidence that there were approximately 65 unconfined inmates in the immediate vicinity observing claimant's confrontation. The facility
superintendent testified that, given this circumstance, claimant's conduct could have had serious consequences. In contrast, the evidence reveals that the unrelated incident occurred away from the inmate population.
To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus (see Noviello v City of Boston, 398 F3d 76, 92-93 [1st Cir 2005]; Sclafani v PC Richard & Son, 668 F Supp 2d 423, 438-439 [ED NY 2009]).[fn1] All of the circumstances must be considered, including "`the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance'" (Forrest v Jewish Guild for the Blind, 3 NY3d at 310-311, quoting Harris v Forklift Sys., Inc., 510 US 17, 23 [1993]). "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so" (Forrest v Jewish Guild for the Blind, 3 NY3d at 311). Generally, "`[i]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment'" (Ferrer v New York State Div. of Human Rights, 82 AD3d 431 [2011], quoting Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied89 NY2d 809 [1997]).
Claimant argues that the initial instance of retaliatory conduct against him was a one hour change in his shift that occurred in 2002 when he worked at Sing Sing Correctional Facility in Westchester County. While claimant acknowledged that he had not filed any written complaints prior to the change in schedule, he claimed that he had made oral complaints about his supervisor and that the shift change was in retaliation for those complaints. The record evidence, however, does not support the claim of prior oral complaints, and the Court of Claims did not believe claimant's
testimony. We will defer to that credibility determination and, in the absence of any prior complaints, we agree that there can be no motive to retaliate (see Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 83 AD3d 1332, 1334 [2011], lv denied17 NY3d 707 [2011]; Singh v State of N.Y. Off. of Real Prop. Servs., 40 AD3d 1354, 1357 [2007]). Although claimant testified that he voluntarily transferred to Sullivan Correctional Facility in Sullivan County shortly after his shift had been changed because his Sing Sing Correctional Facility supervisor called him a "cry baby," the record supports the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level (see Forrest v Jewish Guild for the Blind, 3 NY3d at 311).
Nor do the other actions complained of, when objectively viewed, rise to an actionable level. Although claimant relies on two verbal confrontations that he had with a Sullivan Correctional Facility supervisor in June 2003 and August 2004 that resulted in his counseling by the supervisor, we find ample support for the conclusion that claimant's conduct was inappropriate during each incident, and that the counseling he received was not motivated by retaliatory animus. The evidence also supports the finding that there was no retaliatory motive behind the change in claimant's 2005 performance evaluation or the recision of his temporary promotion to sergeant.
To be sure, claimant was subjected to "inexcusable" incidents of racist enmity while working (id. at 310). While at Sullivan Correctional Facility, his photograph was posted in the correction officers' lineup area with derogatory phrases and slurs written on it. Claimant was also subjected to the jibes from coworkers who disparaged his Irish heritage and referred to him as "Reverend Al," and was further exposed to racist media and jokes. He found this behavior to be abhorrent and reprehensible and, indeed, employers such as defendant are "well advised to adopt zero tolerance policies in the workplace" to combat it (id.). The record nevertheless demonstrates that defendant did not acquiesce in this conduct — which was isolated and occurred over the course of many years — and the record demonstrates that it was not sufficiently severe or pervasive so as to create an actionable hostile work environment (see id. at 311; Barnum v New York City Tr. Auth., 62 AD3d 736, 737-738 [2009]; compare Matter of New York State Dept. of
Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823, 825 [2008]; Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992, 993 [2007]).
We have reviewed claimant's remaining contentions and find them to be without merit.
Peters, P.J., Lahtinen, Kavanagh and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
[fn1] The standards for recovery under the Human Rights Law are the same as those under Title VII of the federal Civil Rights Act of 1964 (see Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d at 1466 n 2).
2012 NY Slip Op 03487
ALFRED CLAUBERG, Appellant, v. STATE OF NEW YORK, Respondent.
No. 512099
Appellate Division of the Supreme Court of New York, Third Department.
Calendar Date: January 5, 2012 Decided and Entered: May 3, 2012
Appeal from a judgment of the Court of Claims (Collins, J.), entered June 18, 2010, upon a decision of the court in favor of defendant.
Cronin & Byczek, L.L.P., Lake Success (Rocco G. Avallone of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of
counsel), for respondent.
Before: PETERS, P.J., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.
ROSE, J.
MEMORANDUM AND ORDER
Claimant, a correction officer employed by the Department of Corrections and Community Supervision since 1997, commenced this action pursuant to Executive Law § 296 claiming that he was subjected to retaliation and a hostile work environment. After trial, the Court of Claims concluded that claimant failed to establish either claim and dismissed the action. Claimant appeals.
In support of his retaliation claim, claimant contends that the discipline he received after engaging in an on-duty physical confrontation with another correction officer was retaliatory because he had previously filed complaints against his supervisors alleging racism. Claimant argues that the Court of Claims erred by overlooking the fact that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. We are not persuaded.
To establish a claim for retaliation, claimant was required to prove that he engaged in protected activity, that his employer was aware that he engaged in such activity, that he suffered an adverse employment action based upon his activity and that there is a causal connection between theprotected activity and the adverse action (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]; Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d 1464, 1466 [2011]). While the first three elements of a retaliation claim are not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant. In reaching that conclusion, the court credited the version of events reported by the witnesses to the
confrontation and determined that claimant was the aggressor. We afford deference to that credibility determination (see Kinge v State of New York, 79 AD3d 1473, 1480 [2010]; Shirvanion v State of New York, 64 AD3d 1113, 1114 [2009]). Also, the court's finding that claimant's confrontation was more serious than the unrelated incident is supported by the undisputed evidence that there were approximately 65 unconfined inmates in the immediate vicinity observing claimant's confrontation. The facility
superintendent testified that, given this circumstance, claimant's conduct could have had serious consequences. In contrast, the evidence reveals that the unrelated incident occurred away from the inmate population.
To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus (see Noviello v City of Boston, 398 F3d 76, 92-93 [1st Cir 2005]; Sclafani v PC Richard & Son, 668 F Supp 2d 423, 438-439 [ED NY 2009]).[fn1] All of the circumstances must be considered, including "`the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance'" (Forrest v Jewish Guild for the Blind, 3 NY3d at 310-311, quoting Harris v Forklift Sys., Inc., 510 US 17, 23 [1993]). "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so" (Forrest v Jewish Guild for the Blind, 3 NY3d at 311). Generally, "`[i]solated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment'" (Ferrer v New York State Div. of Human Rights, 82 AD3d 431 [2011], quoting Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 [1996], lv denied89 NY2d 809 [1997]).
Claimant argues that the initial instance of retaliatory conduct against him was a one hour change in his shift that occurred in 2002 when he worked at Sing Sing Correctional Facility in Westchester County. While claimant acknowledged that he had not filed any written complaints prior to the change in schedule, he claimed that he had made oral complaints about his supervisor and that the shift change was in retaliation for those complaints. The record evidence, however, does not support the claim of prior oral complaints, and the Court of Claims did not believe claimant's
testimony. We will defer to that credibility determination and, in the absence of any prior complaints, we agree that there can be no motive to retaliate (see Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 83 AD3d 1332, 1334 [2011], lv denied17 NY3d 707 [2011]; Singh v State of N.Y. Off. of Real Prop. Servs., 40 AD3d 1354, 1357 [2007]). Although claimant testified that he voluntarily transferred to Sullivan Correctional Facility in Sullivan County shortly after his shift had been changed because his Sing Sing Correctional Facility supervisor called him a "cry baby," the record supports the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level (see Forrest v Jewish Guild for the Blind, 3 NY3d at 311).
Nor do the other actions complained of, when objectively viewed, rise to an actionable level. Although claimant relies on two verbal confrontations that he had with a Sullivan Correctional Facility supervisor in June 2003 and August 2004 that resulted in his counseling by the supervisor, we find ample support for the conclusion that claimant's conduct was inappropriate during each incident, and that the counseling he received was not motivated by retaliatory animus. The evidence also supports the finding that there was no retaliatory motive behind the change in claimant's 2005 performance evaluation or the recision of his temporary promotion to sergeant.
To be sure, claimant was subjected to "inexcusable" incidents of racist enmity while working (id. at 310). While at Sullivan Correctional Facility, his photograph was posted in the correction officers' lineup area with derogatory phrases and slurs written on it. Claimant was also subjected to the jibes from coworkers who disparaged his Irish heritage and referred to him as "Reverend Al," and was further exposed to racist media and jokes. He found this behavior to be abhorrent and reprehensible and, indeed, employers such as defendant are "well advised to adopt zero tolerance policies in the workplace" to combat it (id.). The record nevertheless demonstrates that defendant did not acquiesce in this conduct — which was isolated and occurred over the course of many years — and the record demonstrates that it was not sufficiently severe or pervasive so as to create an actionable hostile work environment (see id. at 311; Barnum v New York City Tr. Auth., 62 AD3d 736, 737-738 [2009]; compare Matter of New York State Dept. of
Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823, 825 [2008]; Matter of Anagnostakos v New York State Div. of Human Rights, 46 AD3d 992, 993 [2007]).
We have reviewed claimant's remaining contentions and find them to be without merit.
Peters, P.J., Lahtinen, Kavanagh and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
[fn1] The standards for recovery under the Human Rights Law are the same as those under Title VII of the federal Civil Rights Act of 1964 (see Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d at 1466 n 2).
Friday, May 18, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
In this 1973 Appeal Board case, the DOL, in its comments, sets forth its opinion as to hwat constitutes "puffing" and what constitutes "misconduct":
"A-750-1759
Index 1150A-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 18, 1973
Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Provoked discharge
Appeal Board Decision 181,391
FALSIFICATION OF EMPLOYMENT APPLICATION
Termination for falsely claiming on an employment application to have experience operating a machine used on the job may be a disqualifying provoked discharge.
Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1972, without any disqualifying conditions, is sustained.
Appealed by: Employer.
Findings of fact: The claimant was employed by a large cleaning contractor as a porter for about three months to October 23, 1972. His terminal salary was $3.72 an hour. The claimant executed and signed a written application of employment dated July 19, 1972, in which he stated that he had two years experience in operating a floor waxing (buffing) machine. He also stated that he had experience in mopping large areas. The employer hired the claimant and put him to work at several locations where machines were not used. On October t 23, 1972, the employer sent the claimant to a location where he was asked by the supervisor whether he could operate a floor buffing machine. When claimant replied that he was able to operate the machine, the supervisor put him to work. Claimant attempted to operate the machine but he was unable to do so, although the supervisor attempted to instruct him in its use. The claimant was discharged by the employer for being unable to operate the waxing Machine and because of the false statement he made in his employment application.
Opinion: The employer in hiring claimant relied on the statements which claimant had made in his employment application. The credible evidence establishes that claimant was unable to operate the floor waxing machine and had misrepresented his work experience in his employment application. Under these circumstances, we conclude that claimant provoked his discharge, which is tantamount to a voluntary leaving of his employment without good cause.
Decision: The initial determination of the local office is overruled.
The employer's objection is sustained. Claimant is disqualified from receiving benefits effective October 24, 1972 because he voluntarily left his employment without good cause by provoking his discharge.
The decision of the referee is reversed. (May 17, 1973).
COMMENTS
Statements or concealments regarding circumstances prejudicial to the employer's interest must be distinguished from mere "puffing" of experience or qualifications. The former may lead to a disqualification, the latter need-not. Thus:
1. In A.B. 67,034, reported at A-750-1496 an electrician, who was unable to get work because of his age, exaggerated from 3 months to 3 years the length of time he worked for a previous employer. The Appeal Board overruled a disqualification.
2. In A.B. 58,928 (not reported) a class B machinist, anxious to be hired as a class A machinist in a steel plant, added 6 months to the period he worked for his penultimate employer in order to conceal his last job from which he had been discharged as not qualified. The Board sustained a disqualification for misconduct.
One important difference between the two cases described above is that the machinist, unlike the electrician, had previously been discharged because he was not qualified to perform the work in question, and attempted to conceal the fact, an act which was prejudicial to the employer's interests and went beyond mere "puffing." Claimant's actions in the instant case also went beyond mere "puffing," in that he falsely claimed to have a skill which was required in the job for which he was hired."
"A-750-1759
Index 1150A-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 18, 1973
Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Provoked discharge
Appeal Board Decision 181,391
FALSIFICATION OF EMPLOYMENT APPLICATION
Termination for falsely claiming on an employment application to have experience operating a machine used on the job may be a disqualifying provoked discharge.
Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1972, without any disqualifying conditions, is sustained.
Appealed by: Employer.
Findings of fact: The claimant was employed by a large cleaning contractor as a porter for about three months to October 23, 1972. His terminal salary was $3.72 an hour. The claimant executed and signed a written application of employment dated July 19, 1972, in which he stated that he had two years experience in operating a floor waxing (buffing) machine. He also stated that he had experience in mopping large areas. The employer hired the claimant and put him to work at several locations where machines were not used. On October t 23, 1972, the employer sent the claimant to a location where he was asked by the supervisor whether he could operate a floor buffing machine. When claimant replied that he was able to operate the machine, the supervisor put him to work. Claimant attempted to operate the machine but he was unable to do so, although the supervisor attempted to instruct him in its use. The claimant was discharged by the employer for being unable to operate the waxing Machine and because of the false statement he made in his employment application.
Opinion: The employer in hiring claimant relied on the statements which claimant had made in his employment application. The credible evidence establishes that claimant was unable to operate the floor waxing machine and had misrepresented his work experience in his employment application. Under these circumstances, we conclude that claimant provoked his discharge, which is tantamount to a voluntary leaving of his employment without good cause.
Decision: The initial determination of the local office is overruled.
The employer's objection is sustained. Claimant is disqualified from receiving benefits effective October 24, 1972 because he voluntarily left his employment without good cause by provoking his discharge.
The decision of the referee is reversed. (May 17, 1973).
COMMENTS
Statements or concealments regarding circumstances prejudicial to the employer's interest must be distinguished from mere "puffing" of experience or qualifications. The former may lead to a disqualification, the latter need-not. Thus:
1. In A.B. 67,034, reported at A-750-1496 an electrician, who was unable to get work because of his age, exaggerated from 3 months to 3 years the length of time he worked for a previous employer. The Appeal Board overruled a disqualification.
2. In A.B. 58,928 (not reported) a class B machinist, anxious to be hired as a class A machinist in a steel plant, added 6 months to the period he worked for his penultimate employer in order to conceal his last job from which he had been discharged as not qualified. The Board sustained a disqualification for misconduct.
One important difference between the two cases described above is that the machinist, unlike the electrician, had previously been discharged because he was not qualified to perform the work in question, and attempted to conceal the fact, an act which was prejudicial to the employer's interests and went beyond mere "puffing." Claimant's actions in the instant case also went beyond mere "puffing," in that he falsely claimed to have a skill which was required in the job for which he was hired."
Thursday, May 17, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
A recent Appeal Board decision on the issue is (Mailed and Filed: APRIL 19, 2012) IN THE MATTER OF: Appeal Board No. 561470:
"OPINION:....The credible evidence further establishes that the claimant was discharged because the employer believed the claimant had falsified his job application by failing to disclose his July 28, 2010 arrest and the charges arising therefrom. However, the evidence fails to establish that the claimant's answers on his job application were false. The first question posed to the claimant was whether he had ever been convicted of a criminal offense or violation. The claimant was not convicted of a crime or violation, given that no conviction or guilty plea was ever adjudicated. Notably, the case was adjourned in October and the charge was ultimately dismissed. The second question at issue was whether there were any pending criminal charges. It is undisputed that the only charge against the claimant when he appeared in criminal court in October was disorderly conduct, a violation not a crime. Therefore, the evidence does not establish that a criminal charge was pending. Accordingly, the claimant's answers on his job application were not false and his actions were not misconduct."
"OPINION:....The credible evidence further establishes that the claimant was discharged because the employer believed the claimant had falsified his job application by failing to disclose his July 28, 2010 arrest and the charges arising therefrom. However, the evidence fails to establish that the claimant's answers on his job application were false. The first question posed to the claimant was whether he had ever been convicted of a criminal offense or violation. The claimant was not convicted of a crime or violation, given that no conviction or guilty plea was ever adjudicated. Notably, the case was adjourned in October and the charge was ultimately dismissed. The second question at issue was whether there were any pending criminal charges. It is undisputed that the only charge against the claimant when he appeared in criminal court in October was disorderly conduct, a violation not a crime. Therefore, the evidence does not establish that a criminal charge was pending. Accordingly, the claimant's answers on his job application were not false and his actions were not misconduct."
Wednesday, May 16, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
This case also appears to differentiate itself from prior strict holdings as it discusses "puffing" ones resume (emphasis supplied):
"Index 1150A-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY 6, 1959
INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
A.B. 67,034-58
MISCONDUCT, QUESTION OF - PERIOD OF EMPLOYMENT EXAGGERATED
"Puffing" the length of previous employment on an application in order to obtain a job does not constitute misconduct.
Referee's Decision: The referee sustained the initial determination of the local office disqualifying claimant from receiving benefits for seven consecutive weeks effective May 20, 1958 on the ground that he lost his employment through misconduct in connection with his employment.
Appealed By: Claimant.
Findings of Fact: Claimant is an electrician by trade. Because of his age his efforts to obtain employment in that field failed. Claimant as an alternative applied for a position as a maintenance man with a resident hotel located in midtown Manhattan. He was required to file an application for such job and indicate therein his previous work history. Claimant wanted the job desperately. He submitted a record of employment going back to 1933. In his over zealousness he exaggerated the period of his employment with a previous employer by indicating that he worked for such employer for a period of three years from 1953 to 1956, whereas in fact, he only worked there for about three months on two occasions in 1954 and 1956.Claimant was hired on May 6, 1958. On May 19, 1958, after the employer discovered that claimant had exaggerated the length of his prior employment, he was discharged. Save for such untruth, claimant admittedly did not withhold any information which would be derogatory to him. Claimant's previous employers reported no unfavorable criticism wit respect to either his integrity or industry.
Claimant filed an application for benefits on May 23, 1958. Based on the facts recited above, the local office issued an initial determination disqualifying him from receiving benefits for seven consecutive weeks on the ground that he lost his employment through misconduct in connection with his employment.
Appeal Board Opinion and Decision: In sustaining the initial determination, the referee held that the furnishing of false information in connection with his application for employment constituted misconduct within the meaning of the Unemployment Insurance Law. In view of the particular facts and circumstances herein, we do not agree with the conclusion reached by the referee.
It is true that claimant exaggerated the extent of his previous employment in order to obtain a job. The representative of the employer who appeared at the hearing before the referee conceded that in discharging claimant his honesty was not impugned.
We do not question the employer's right to discharge claimant because it was displeased with claimant's conduct. However, since claimant's act was not for the purpose of concealing a questionable past, we believe that it did not constitute misconduct within the meaning of the Unemployment Insurance Law and did not warrant so serious a charge with such drastic consequences.The initial determination of the local office disqualifying claimant from receiving benefits on the ground that he lost his employment through misconduct in connection with his employment is overruled. The decision of the referee is reversed. (December 17, 1958)
"Index 1150A-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY 6, 1959
INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
A.B. 67,034-58
MISCONDUCT, QUESTION OF - PERIOD OF EMPLOYMENT EXAGGERATED
"Puffing" the length of previous employment on an application in order to obtain a job does not constitute misconduct.
Referee's Decision: The referee sustained the initial determination of the local office disqualifying claimant from receiving benefits for seven consecutive weeks effective May 20, 1958 on the ground that he lost his employment through misconduct in connection with his employment.
Appealed By: Claimant.
Findings of Fact: Claimant is an electrician by trade. Because of his age his efforts to obtain employment in that field failed. Claimant as an alternative applied for a position as a maintenance man with a resident hotel located in midtown Manhattan. He was required to file an application for such job and indicate therein his previous work history. Claimant wanted the job desperately. He submitted a record of employment going back to 1933. In his over zealousness he exaggerated the period of his employment with a previous employer by indicating that he worked for such employer for a period of three years from 1953 to 1956, whereas in fact, he only worked there for about three months on two occasions in 1954 and 1956.Claimant was hired on May 6, 1958. On May 19, 1958, after the employer discovered that claimant had exaggerated the length of his prior employment, he was discharged. Save for such untruth, claimant admittedly did not withhold any information which would be derogatory to him. Claimant's previous employers reported no unfavorable criticism wit respect to either his integrity or industry.
Claimant filed an application for benefits on May 23, 1958. Based on the facts recited above, the local office issued an initial determination disqualifying him from receiving benefits for seven consecutive weeks on the ground that he lost his employment through misconduct in connection with his employment.
Appeal Board Opinion and Decision: In sustaining the initial determination, the referee held that the furnishing of false information in connection with his application for employment constituted misconduct within the meaning of the Unemployment Insurance Law. In view of the particular facts and circumstances herein, we do not agree with the conclusion reached by the referee.
It is true that claimant exaggerated the extent of his previous employment in order to obtain a job. The representative of the employer who appeared at the hearing before the referee conceded that in discharging claimant his honesty was not impugned.
We do not question the employer's right to discharge claimant because it was displeased with claimant's conduct. However, since claimant's act was not for the purpose of concealing a questionable past, we believe that it did not constitute misconduct within the meaning of the Unemployment Insurance Law and did not warrant so serious a charge with such drastic consequences.The initial determination of the local office disqualifying claimant from receiving benefits on the ground that he lost his employment through misconduct in connection with his employment is overruled. The decision of the referee is reversed. (December 17, 1958)
Tuesday, May 15, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
This case appears to differentiate itself from prior strict holdings (emphasis supplied):
"Index 1150A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 7, 1957
INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Appeal Board Case Number 61,271-57
MISCONDUCT, QUESTION OF – FALSIFICATION OF AGE
Falsifying the date of birth on an application for employment does not constitute misconduct in connection with such employment, when the employer’s pecuniary interests, actual or potential, have not been prejudiced.
Referee's Decision: The referee overruled the initial determination of the local office suspending the accumulation of benefit rights by claimant for a period of seven consecutive weeks effective May 1, 1957, on the ground that she lost her employment through misconduct in connection with her employment.
Appealed By: Industrial Commissioner.
Findings of Fact: We have reviewed the evidence adduced at the hearing before the referee and find that such evidence supports the following findings of fact made by the referee.
Claimant, a file clerk, refiled for benefits effective May 13, 1957. By initial determinations effective May 11, her benefits were suspended for seven weeks for loss of employment because of misconduct in connection therewith.
Claimant worked for an insurance company from April 22 to May 10, submitting her application for employment to the company she gave her date of birth as May 26, 1902. Actually, she was born June 28, 1897. The employer has established a special pension plan under which it hires women, ages 45 to 55, so that the oldest among them may benefit under the plan after having been employed at least ten years. The company will not hire any women over 55 since such employee should not benefit under the pension plan. In establishing this plan the employer desires to invite into the labor market, again, women who have not been employed for some time. The company designates the plan as its "special mature program," and it is designed for the benefit of such female employees. Claimant was not required to submit proof of her age on hiring. Shortly before she became unemployed the employer demanded proof of age. Claimant was unable to produce such proof and her services were terminated.
The Board makes the following additional findings of fact: The referee overruled the initial determination and the Industrial Commissioner appeals to the Board.
Appeal Board Opinion and Decision: We are in accord with the conclusion of the referee that claimant did not lose her employment through misconduct in connection with her employment. While we do not condone the giving of false information, we are of the opinion that something more must be shown in order to sustain an initial determination of misconduct. It was held in UCFE-41-55 that the mere falsification of an application for employment is not misconduct, per se, and that in order to sustain such a determination it must appear that the interests of the employer have been prejudiced. The employer’s pecuniary interest has not been prejudiced or subjected to jeopardy. Neither actual nor potential loss to the employer has been shown. Since that is so, the initial determination of misconduct was improperly issued. Compare Appeal Board 39,840-53 and Appeal Board 43,944-54, in each of which cases the record established that in addition to the false statement on claimant’s application for employment, there was actual or possible damage to the employer’ pecuniary interest.The initial determination of the local office suspending the accumulation of benefit rights by claimant for a period of seven consecutive weeks effective May 11, 1957, on the ground that she lost her employment through misconduct in connection with her employment is overruled.
The decision of the referee is affirmed. (October 18, 1957)"
"Index 1150A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 7, 1957
INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Appeal Board Case Number 61,271-57
MISCONDUCT, QUESTION OF – FALSIFICATION OF AGE
Falsifying the date of birth on an application for employment does not constitute misconduct in connection with such employment, when the employer’s pecuniary interests, actual or potential, have not been prejudiced.
Referee's Decision: The referee overruled the initial determination of the local office suspending the accumulation of benefit rights by claimant for a period of seven consecutive weeks effective May 1, 1957, on the ground that she lost her employment through misconduct in connection with her employment.
Appealed By: Industrial Commissioner.
Findings of Fact: We have reviewed the evidence adduced at the hearing before the referee and find that such evidence supports the following findings of fact made by the referee.
Claimant, a file clerk, refiled for benefits effective May 13, 1957. By initial determinations effective May 11, her benefits were suspended for seven weeks for loss of employment because of misconduct in connection therewith.
Claimant worked for an insurance company from April 22 to May 10, submitting her application for employment to the company she gave her date of birth as May 26, 1902. Actually, she was born June 28, 1897. The employer has established a special pension plan under which it hires women, ages 45 to 55, so that the oldest among them may benefit under the plan after having been employed at least ten years. The company will not hire any women over 55 since such employee should not benefit under the pension plan. In establishing this plan the employer desires to invite into the labor market, again, women who have not been employed for some time. The company designates the plan as its "special mature program," and it is designed for the benefit of such female employees. Claimant was not required to submit proof of her age on hiring. Shortly before she became unemployed the employer demanded proof of age. Claimant was unable to produce such proof and her services were terminated.
The Board makes the following additional findings of fact: The referee overruled the initial determination and the Industrial Commissioner appeals to the Board.
Appeal Board Opinion and Decision: We are in accord with the conclusion of the referee that claimant did not lose her employment through misconduct in connection with her employment. While we do not condone the giving of false information, we are of the opinion that something more must be shown in order to sustain an initial determination of misconduct. It was held in UCFE-41-55 that the mere falsification of an application for employment is not misconduct, per se, and that in order to sustain such a determination it must appear that the interests of the employer have been prejudiced. The employer’s pecuniary interest has not been prejudiced or subjected to jeopardy. Neither actual nor potential loss to the employer has been shown. Since that is so, the initial determination of misconduct was improperly issued. Compare Appeal Board 39,840-53 and Appeal Board 43,944-54, in each of which cases the record established that in addition to the false statement on claimant’s application for employment, there was actual or possible damage to the employer’ pecuniary interest.The initial determination of the local office suspending the accumulation of benefit rights by claimant for a period of seven consecutive weeks effective May 11, 1957, on the ground that she lost her employment through misconduct in connection with her employment is overruled.
The decision of the referee is affirmed. (October 18, 1957)"
Monday, May 14, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
Misconduct was also found in the following false application (note in bold, the reason for the false application):
"Index 1150-A2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 10, 1971
INTERPRETATION SERVICE -BENEFIT CLAIMS
MISCONDUCT
Falsification of employment application
Appeal Board Decision 162,012
CONCEALMENT OF ILLNESS AT TIME OF HIRE
A false statement on an employment application made to conceal an illness or disability (epilepsy) constitutes misconduct.
Referee's decision: The initial determinations of the local office disqualifying claimant from receiving benefits effective August 6, 1970, because he lost his employment due to misconduct in connection with his employment and, in the alter- native, because he voluntarily left his employment without good cause by provoking his discharge, remain in effect because the claimant failed to request a hearing thereon within the statutory period.
Appealed by: Claimant
Findings of fact: Claimant, a tester desk man, worked for a public utility from February 16 through August 5, 1970. Prior to being hired, claimant executed a pre-placement medical questionnaire in which he stated, among other things, that he never had epilepsy. He certified thereon that his answers were true. In sub- mitting the subsequent employment application, claimant agreed that any false statement, misrepresentation or failure to disclose pertinent information made at any time during the employment procedure may be sufficient to result in his dismissal. On July 13, 1970, claimant became ill and was taken to the employer's medical department. On the following day, he admitted that his illness resulted from an epileptic seizure and that he has had epilepsy for many years. Claimant was discharged because of the false answer in his medical questionnaire.
Claimant filed an original claim for benefits effective August l0, 1970. On September 9, 1970, the local office mailed to claimant the initial determinations herein. Al though claimant did not immediately read the instructions regarding the request for a hearing he did so about two weeks later. On September 23, 1970, claimant appeared at the local office and requested a hearing.
Opinion: The credible evidence establishes that claimant made a request for a hearing on September 23, 1970, when he appeared at the local office. Such request was made within the period prescribed by the statute and was timely. Accordingly we must consider the merits of the initial determinations issued herein. The evidence establishes that claimant submitted false medical information in connection with his application for employment. Admittedly he concealed the fact that he had suffered from epilepsy for many years. His reason for doing so, i. e. in the past, whenever he told tile truth he was not hired, does not justify such concealment. Falsification of his application for employment constituted misconduct in connection with his employment.
Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 1910, because he lost his employment due to misconduct in connection with his employment is sustained.
The decision of the referee is reversed. (February 16,1971)."
"Index 1150-A2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 10, 1971
INTERPRETATION SERVICE -BENEFIT CLAIMS
MISCONDUCT
Falsification of employment application
Appeal Board Decision 162,012
CONCEALMENT OF ILLNESS AT TIME OF HIRE
A false statement on an employment application made to conceal an illness or disability (epilepsy) constitutes misconduct.
Referee's decision: The initial determinations of the local office disqualifying claimant from receiving benefits effective August 6, 1970, because he lost his employment due to misconduct in connection with his employment and, in the alter- native, because he voluntarily left his employment without good cause by provoking his discharge, remain in effect because the claimant failed to request a hearing thereon within the statutory period.
Appealed by: Claimant
Findings of fact: Claimant, a tester desk man, worked for a public utility from February 16 through August 5, 1970. Prior to being hired, claimant executed a pre-placement medical questionnaire in which he stated, among other things, that he never had epilepsy. He certified thereon that his answers were true. In sub- mitting the subsequent employment application, claimant agreed that any false statement, misrepresentation or failure to disclose pertinent information made at any time during the employment procedure may be sufficient to result in his dismissal. On July 13, 1970, claimant became ill and was taken to the employer's medical department. On the following day, he admitted that his illness resulted from an epileptic seizure and that he has had epilepsy for many years. Claimant was discharged because of the false answer in his medical questionnaire.
Claimant filed an original claim for benefits effective August l0, 1970. On September 9, 1970, the local office mailed to claimant the initial determinations herein. Al though claimant did not immediately read the instructions regarding the request for a hearing he did so about two weeks later. On September 23, 1970, claimant appeared at the local office and requested a hearing.
Opinion: The credible evidence establishes that claimant made a request for a hearing on September 23, 1970, when he appeared at the local office. Such request was made within the period prescribed by the statute and was timely. Accordingly we must consider the merits of the initial determinations issued herein. The evidence establishes that claimant submitted false medical information in connection with his application for employment. Admittedly he concealed the fact that he had suffered from epilepsy for many years. His reason for doing so, i. e. in the past, whenever he told tile truth he was not hired, does not justify such concealment. Falsification of his application for employment constituted misconduct in connection with his employment.
Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 1910, because he lost his employment due to misconduct in connection with his employment is sustained.
The decision of the referee is reversed. (February 16,1971)."
Friday, May 11, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
Misconduct was found in the following false application (note in bold, the reason for the false application):
"Index 1150A-7
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 18, 1975
Interpretation Service - Benefit Claims
MISCONDUCT
Falsification of employment application
Appeal Board Decision 204,070
CONCEALMENT OF PRIOR EMPLOYMENT
Deliberate omission of a prior employer from an employment application may be misconduct.
Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 1, 1974, because he lost his employment through misconduct in connection therewith, is overruled.
Appealed by: Employer
Findings of Fact: Claimant was employed as a senior buyer in a hospital on August 29, 1973. After he was discharged on May 31, 1974, he filed a grievance as a result of which he was reinstated on September 9, 1974. In attempting to catch up on his paper work, claimant took home hospital purchase record cards. Although this was common practice among hospital employees, claimant was unaware that to do so was against hospital policy. When the employer discovered that its records had been removed and ordered claimant to bring them back to the office, claimant complied. On Friday, September 27, 1974, the employer received information that the claimant had omitted from his employment application in 1973, at the time of original hire, and in 1974, when he was reinstated, any indication that in 1968 he had worked at a Florida hospital. The employment applications which claimant signed included a statement that he knew that giving false information could lead to his dismissal. On Monday, September 30, 1974, the employer discharged claimant because he had falsified his employment applications and also for the removal of hospital records without permission. The claimant admitted that he did not disclose his employment at the Florida hospital because he was afraid of getting a bad recommendation.
Opinion: The credible evidence now before the Board establishes that the claimant deliberately omitted material information regarding his prior employment from his employment applications, despite the fact that he was aware that the giving of false information could lead to his discharge. While he may have considered it wise to omit such vital information, nevertheless, by so doing he is chargeable with misconduct in connection with his employment.
In view thereof, we need not consider the question of whether or not claimant's removal of the hospital records from the office also constituted an act of misconduct in connection with his employment.
Decision: The initial determination of the local office is sustained.
The decision of the referee is reversed. (May 28, 1975)"
"Index 1150A-7
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 18, 1975
Interpretation Service - Benefit Claims
MISCONDUCT
Falsification of employment application
Appeal Board Decision 204,070
CONCEALMENT OF PRIOR EMPLOYMENT
Deliberate omission of a prior employer from an employment application may be misconduct.
Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 1, 1974, because he lost his employment through misconduct in connection therewith, is overruled.
Appealed by: Employer
Findings of Fact: Claimant was employed as a senior buyer in a hospital on August 29, 1973. After he was discharged on May 31, 1974, he filed a grievance as a result of which he was reinstated on September 9, 1974. In attempting to catch up on his paper work, claimant took home hospital purchase record cards. Although this was common practice among hospital employees, claimant was unaware that to do so was against hospital policy. When the employer discovered that its records had been removed and ordered claimant to bring them back to the office, claimant complied. On Friday, September 27, 1974, the employer received information that the claimant had omitted from his employment application in 1973, at the time of original hire, and in 1974, when he was reinstated, any indication that in 1968 he had worked at a Florida hospital. The employment applications which claimant signed included a statement that he knew that giving false information could lead to his dismissal. On Monday, September 30, 1974, the employer discharged claimant because he had falsified his employment applications and also for the removal of hospital records without permission. The claimant admitted that he did not disclose his employment at the Florida hospital because he was afraid of getting a bad recommendation.
Opinion: The credible evidence now before the Board establishes that the claimant deliberately omitted material information regarding his prior employment from his employment applications, despite the fact that he was aware that the giving of false information could lead to his discharge. While he may have considered it wise to omit such vital information, nevertheless, by so doing he is chargeable with misconduct in connection with his employment.
In view thereof, we need not consider the question of whether or not claimant's removal of the hospital records from the office also constituted an act of misconduct in connection with his employment.
Decision: The initial determination of the local office is sustained.
The decision of the referee is reversed. (May 28, 1975)"
Thursday, May 10, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
A misrepresentation regarding a high school education has been held to be misconduct:
"MATTER OF STARICH
52 A.D.2d 965 (3rd Dept. 1976)
Koreman, P. J., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.
On claimant's application for employment, he indicated he was a high school graduate. Subsequent investigation by his employer revealed that he had not completed high school. Claimant's contentions in support of his claim were rejected by the board and there is substantial evidence to support its determination of misconduct (Matter of Collazo [Levine], 51 A.D.2d 603; Matter of Gunther [Levine], 47A.D.2d 811).
Decision affirmed, without costs."
"MATTER OF STARICH
52 A.D.2d 965 (3rd Dept. 1976)
Koreman, P. J., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.
On claimant's application for employment, he indicated he was a high school graduate. Subsequent investigation by his employer revealed that he had not completed high school. Claimant's contentions in support of his claim were rejected by the board and there is substantial evidence to support its determination of misconduct (Matter of Collazo [Levine], 51 A.D.2d 603; Matter of Gunther [Levine], 47A.D.2d 811).
Decision affirmed, without costs."
Wednesday, May 9, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
A.B. 39,840-53, reported in yesterday's post, is cited by the DOL for the position that a "deliberate falsification of an application for employment constitutes misconduct within the meaning of the Unemployment Insurance Law if there is present injury or prejudice to the employer's interest".
Note that the present injury or prejudice found in that matter was, in my view, extremely speculative and did not appear to be a "present" injury or prejudice: "The prejudice resulting to the employer from this concealment was that it would be subjected to an additional burden under the Second Injury provisions of the Workmen's Compensation Law in the event of a future claim by the claimant."
There are many reported decision illustrating when the false job application clearly created a "present injury or prejudice to the employer's interest."
Note that the present injury or prejudice found in that matter was, in my view, extremely speculative and did not appear to be a "present" injury or prejudice: "The prejudice resulting to the employer from this concealment was that it would be subjected to an additional burden under the Second Injury provisions of the Workmen's Compensation Law in the event of a future claim by the claimant."
There are many reported decision illustrating when the false job application clearly created a "present injury or prejudice to the employer's interest."
Tuesday, May 8, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
The following case demonstrates a position which may be considered harsh to claimants - note the emphasis supplied statements:
"A-750-1244
Index 1150A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY 25, 1954
INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Violation of Company Rule
Appeal Board Case Number 39,840-53
MISCONDUCT - FALSIFICATION OF EMPLOYMENT APPLICATION
A deliberate falsification of an application for employment constitutes misconduct within the meaning of the Unemployment Insurance Law if there is present injury or prejudice to the employer's interest.
Referee's Decision: The initial determination of voluntary leaving of employment is modified to rule that claimant's benefits are suspended for 7 weeks effective December 13, 1952, and as modified is sustained. (September 2, 1953)
Appealed By: Industrial Commissioner.
Findings of Fact: We have reviewed the evidence as adduced at the hearing before the referee and we find that such evidence supports the following findings of fact made by the referee:
Claimant, a tinsmith, refiled a claim effective December 15, 1952. On November 28, 1952, claimant was hired by a manufacturer of automotive equipment. In his application, he was questioned concerning any diseases, disability or back injuries. He answered all questions in the negative concerning his physical condition. The employer thereafter ascertained that claimant had a pending workmen's compensation claim against another employer regarding a back injury. Claimant was discharged on December 12, 1952, after the employer's investigation was completed.
The employer pointed out that its interests were substantially affected to its detriment because the claimant gave false information on his application regarding his back injury; that under the Second Injury provisions of the Workmen's Compensation Law, an employer must bear the entire burden in case of an injury or aggravation of a pre-existing condition, and that an employer can obtain relief and protection under the law only if previously existing physical characteristics of the applicants are known and substantiated by detailed and accurate medical facts, compiled and registered on the employer's medical records.
Claimant falsified his employment application because he was in need of employment. He also admitted that prior to being hired he had read information on a poster in the employer's personnel office which reads:
Falsification of personnel, medical or other records will be sufficient grounds for disciplinary action ranging from reprimand to immediate discharge, depending upon the seriousness of the offense in the judgment of management.
The Board makes the following additional findings of fact: Prior to November 1952, claimant suffered an injury to his back which has been diagnosed as the first stage of arthritis in the lower back. After a hearing held on January 28, 1953 before an referee of the Workmen's Compensation Board in connection with claimant's claim for workmen's compensation, the claim was disallowed on the ground that no accident or occupational condition was established and the matter was closed. On March 6, 1953 the local office issued a revised initial determination disqualifying claimant from receiving benefits for 42 days effective December 15, 1952 on the ground that he voluntarily left his employment without good cause based upon the premise that claimant's concealment of information in his application for employment provoked his discharge. The claimant protested and requested a hearing. The employer contested the determination on the ground that claimant lost his employment through misconduct in connection therewith. The referee by decision dated May 15, 1953 sustained the initial determination of voluntary leaving without good cause. The employer appealed from such decision of the referee, pursuant to Section 621.1 of the Unemployment Insurance Law, on the ground that there were sufficient elements in the case to warrant a decision based upon misconduct in connection with employment (Appeal Board, 38,343-52). The Board by order dated July 3, 1953 remanded that case to the referee for the purpose of holding a hearing de novo on all the issues therein and rendering a new decision therein. The referee modified the initial determination of voluntary leaving of employment to hold that claimant's benefits were suspended for seven weeks effective December 13, 1953 on the ground that he lost his employment through misconduct in connection therewith and that claimant was overpaid $116 in benefits. The Industrial Commissioner appealed from such decision to the Appeal Board.
Appeal Board Opinion: This case presents alternative issues to the Board. The local office has issued an initial determination of voluntary leaving of employment on the theory that claimant, by falsifying information in his application blank, provoked his discharge. In view of the Matter of Baida, which was decided by the Appellate Division, Third Department, on November 12, 1953, affirming Appeal Board 27,157-51, claimant is not subject to a disqualification for a provoked discharge. The only question before us, therefore, is whether or not claimant lost his employment through misconduct in connection therewith within the meaning of the Unemployment Insurance Law so as to be subject to the suspension of his benefit rights for seven consecutive weeks as provided in Section 592.2 thereof. It is undisputed that in order to obtain employment, which he urgently needed, claimant falsely stated in his application for employment to his employer that he had never had a back injury or back ache or a case pending in workmen's compensation. The prejudice resulting to the employer from this concealment was that it would be subjected to an additional burden under the Second Injury provisions of the Workmen's Compensation Law in the event of a future claim by the claimant. Claimant was discharged for this reason and the employer contends that such concealment and misrepresentation by the claimant amount to misconduct within the purview of the Law. The referee in upholding the employer's position, relied on Appeal Board, 17,420-48 wherein the Board cited with approval the following definition found in Boynton Cab Co. v. Neubeck, 237 Wis. 249,259:
. . . the intended meaning of the term 'misconduct' as in (the disqualification provision) is limited to conduct evincing such wilful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence as such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer.
The referee ruled that claimant's falsification of his application for employment constituted a deliberate violation of the employer's rules and that by so doing claimant deliberately committed an act detrimental to the employer's interests so as to constitute misconduct on his part within the meaning of the Law. While we have some hesitancy in branding claimant's act as one of misconduct since it was not wantonly done but committed for the sole purpose of obtaining employment and motivated by his desire to provide for his family, we are persuaded by the authorities on this subject in our sister states that the referee's decision must stand. Under substantially similar statutes in other jurisdictions, it has been almost uniformly held that a discharge arising out of the deliberate falsification of an application for employment constitutes misconduct if there is present injury or prejudice to the employer's interest. (General Motors Corp. vs. Appeal Board, Michigan Circuit Court, Ingham County, Benefit Series Service, Vol 2, M.C. 140.2-1; Benefit Series, Volume 12, No. 11, Page 68, 13850-Mass. A; Benefit Series Service, Volume 2, Report 33-13, Ky., No. 52-148; CCH Cal. 1970.75, Appeal Board, 5286; Benefit Series Service 1951, Report 10-75-Wash. A, No. A-19013). In view of the weight of authority, as exemplified by the above decisions, we feel constrained to hold that the same result must follow in this case.Appeal Board Decision: The initial determination of the local office disqualifying claimant for voluntary leaving of employment without good cause is modified to hold that claimant's benefits are suspended for seven weeks effective December 13, 1952 for loss of employment through misconduct in connection therewith. The claimant was overpaid $116 in benefits. The decision of the referee is affirmed. (December 24, 1953)"
"A-750-1244
Index 1150A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JANUARY 25, 1954
INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Violation of Company Rule
Appeal Board Case Number 39,840-53
MISCONDUCT - FALSIFICATION OF EMPLOYMENT APPLICATION
A deliberate falsification of an application for employment constitutes misconduct within the meaning of the Unemployment Insurance Law if there is present injury or prejudice to the employer's interest.
Referee's Decision: The initial determination of voluntary leaving of employment is modified to rule that claimant's benefits are suspended for 7 weeks effective December 13, 1952, and as modified is sustained. (September 2, 1953)
Appealed By: Industrial Commissioner.
Findings of Fact: We have reviewed the evidence as adduced at the hearing before the referee and we find that such evidence supports the following findings of fact made by the referee:
Claimant, a tinsmith, refiled a claim effective December 15, 1952. On November 28, 1952, claimant was hired by a manufacturer of automotive equipment. In his application, he was questioned concerning any diseases, disability or back injuries. He answered all questions in the negative concerning his physical condition. The employer thereafter ascertained that claimant had a pending workmen's compensation claim against another employer regarding a back injury. Claimant was discharged on December 12, 1952, after the employer's investigation was completed.
The employer pointed out that its interests were substantially affected to its detriment because the claimant gave false information on his application regarding his back injury; that under the Second Injury provisions of the Workmen's Compensation Law, an employer must bear the entire burden in case of an injury or aggravation of a pre-existing condition, and that an employer can obtain relief and protection under the law only if previously existing physical characteristics of the applicants are known and substantiated by detailed and accurate medical facts, compiled and registered on the employer's medical records.
Claimant falsified his employment application because he was in need of employment. He also admitted that prior to being hired he had read information on a poster in the employer's personnel office which reads:
Falsification of personnel, medical or other records will be sufficient grounds for disciplinary action ranging from reprimand to immediate discharge, depending upon the seriousness of the offense in the judgment of management.
The Board makes the following additional findings of fact: Prior to November 1952, claimant suffered an injury to his back which has been diagnosed as the first stage of arthritis in the lower back. After a hearing held on January 28, 1953 before an referee of the Workmen's Compensation Board in connection with claimant's claim for workmen's compensation, the claim was disallowed on the ground that no accident or occupational condition was established and the matter was closed. On March 6, 1953 the local office issued a revised initial determination disqualifying claimant from receiving benefits for 42 days effective December 15, 1952 on the ground that he voluntarily left his employment without good cause based upon the premise that claimant's concealment of information in his application for employment provoked his discharge. The claimant protested and requested a hearing. The employer contested the determination on the ground that claimant lost his employment through misconduct in connection therewith. The referee by decision dated May 15, 1953 sustained the initial determination of voluntary leaving without good cause. The employer appealed from such decision of the referee, pursuant to Section 621.1 of the Unemployment Insurance Law, on the ground that there were sufficient elements in the case to warrant a decision based upon misconduct in connection with employment (Appeal Board, 38,343-52). The Board by order dated July 3, 1953 remanded that case to the referee for the purpose of holding a hearing de novo on all the issues therein and rendering a new decision therein. The referee modified the initial determination of voluntary leaving of employment to hold that claimant's benefits were suspended for seven weeks effective December 13, 1953 on the ground that he lost his employment through misconduct in connection therewith and that claimant was overpaid $116 in benefits. The Industrial Commissioner appealed from such decision to the Appeal Board.
Appeal Board Opinion: This case presents alternative issues to the Board. The local office has issued an initial determination of voluntary leaving of employment on the theory that claimant, by falsifying information in his application blank, provoked his discharge. In view of the Matter of Baida, which was decided by the Appellate Division, Third Department, on November 12, 1953, affirming Appeal Board 27,157-51, claimant is not subject to a disqualification for a provoked discharge. The only question before us, therefore, is whether or not claimant lost his employment through misconduct in connection therewith within the meaning of the Unemployment Insurance Law so as to be subject to the suspension of his benefit rights for seven consecutive weeks as provided in Section 592.2 thereof. It is undisputed that in order to obtain employment, which he urgently needed, claimant falsely stated in his application for employment to his employer that he had never had a back injury or back ache or a case pending in workmen's compensation. The prejudice resulting to the employer from this concealment was that it would be subjected to an additional burden under the Second Injury provisions of the Workmen's Compensation Law in the event of a future claim by the claimant. Claimant was discharged for this reason and the employer contends that such concealment and misrepresentation by the claimant amount to misconduct within the purview of the Law. The referee in upholding the employer's position, relied on Appeal Board, 17,420-48 wherein the Board cited with approval the following definition found in Boynton Cab Co. v. Neubeck, 237 Wis. 249,259:
. . . the intended meaning of the term 'misconduct' as in (the disqualification provision) is limited to conduct evincing such wilful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence as such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer.
The referee ruled that claimant's falsification of his application for employment constituted a deliberate violation of the employer's rules and that by so doing claimant deliberately committed an act detrimental to the employer's interests so as to constitute misconduct on his part within the meaning of the Law. While we have some hesitancy in branding claimant's act as one of misconduct since it was not wantonly done but committed for the sole purpose of obtaining employment and motivated by his desire to provide for his family, we are persuaded by the authorities on this subject in our sister states that the referee's decision must stand. Under substantially similar statutes in other jurisdictions, it has been almost uniformly held that a discharge arising out of the deliberate falsification of an application for employment constitutes misconduct if there is present injury or prejudice to the employer's interest. (General Motors Corp. vs. Appeal Board, Michigan Circuit Court, Ingham County, Benefit Series Service, Vol 2, M.C. 140.2-1; Benefit Series, Volume 12, No. 11, Page 68, 13850-Mass. A; Benefit Series Service, Volume 2, Report 33-13, Ky., No. 52-148; CCH Cal. 1970.75, Appeal Board, 5286; Benefit Series Service 1951, Report 10-75-Wash. A, No. A-19013). In view of the weight of authority, as exemplified by the above decisions, we feel constrained to hold that the same result must follow in this case.Appeal Board Decision: The initial determination of the local office disqualifying claimant for voluntary leaving of employment without good cause is modified to hold that claimant's benefits are suspended for seven weeks effective December 13, 1952 for loss of employment through misconduct in connection therewith. The claimant was overpaid $116 in benefits. The decision of the referee is affirmed. (December 24, 1953)"
Monday, May 7, 2012
VOLUNTEER LAWYERS PROJECT & MORTGAGE FORECLOSURE CLINIC
Today:
1. I am a Volunteer Lawyer at Landlord & Tenant Court in Nassau as part of the Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.
2. I will be at the Nassau County Bar Association as a volunteer lawyer for their free "Mortgage Foreclosure Legal Consultation Clinics"
1. I am a Volunteer Lawyer at Landlord & Tenant Court in Nassau as part of the Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.
2. I will be at the Nassau County Bar Association as a volunteer lawyer for their free "Mortgage Foreclosure Legal Consultation Clinics"
Friday, May 4, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
Recently, the Appeal Board held in (Mailed and Filed: DECEMBER 28, 2011) IN THE MATTER OF: Appeal Board No. 554634:
"OPINION: The credible evidence establishes that the claimant was discharged because she failed to disclose her criminal conviction from 2001, on the employer's job application in 2010. We are mindful of the Court's decision in Matter of Ghorab, 219 A.D.2d 793 (3d Dept 1995), holding that the claimant's failure to disclose her criminal conviction on the employer's job application was not protected by law solely because she had received a certificate of disabilities. However, we note that the claimant in the instant matter was mistakenly advised by her attorney in 2004, that she was no longer required to disclose her conviction on employment applications and she had followed his advice for six years without adverse consequences from the employers even after her conviction became known to them. Additionally, the claimant in the instant matter pled guilty to welfare fraud in the fifth degree, a misdemeanor, as opposed to the felony conviction of the claimant in Matter of Ghorab. Under the extenuating circumstances of the instant matter, we conclude that the claimant's actions do not rise to the level of misconduct. Accordingly,the initial determination is overruled."
"OPINION: The credible evidence establishes that the claimant was discharged because she failed to disclose her criminal conviction from 2001, on the employer's job application in 2010. We are mindful of the Court's decision in Matter of Ghorab, 219 A.D.2d 793 (3d Dept 1995), holding that the claimant's failure to disclose her criminal conviction on the employer's job application was not protected by law solely because she had received a certificate of disabilities. However, we note that the claimant in the instant matter was mistakenly advised by her attorney in 2004, that she was no longer required to disclose her conviction on employment applications and she had followed his advice for six years without adverse consequences from the employers even after her conviction became known to them. Additionally, the claimant in the instant matter pled guilty to welfare fraud in the fifth degree, a misdemeanor, as opposed to the felony conviction of the claimant in Matter of Ghorab. Under the extenuating circumstances of the instant matter, we conclude that the claimant's actions do not rise to the level of misconduct. Accordingly,the initial determination is overruled."
Thursday, May 3, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
Disclosure of criminal background may also be required even if an employee obtains a certificate of relief from disabilities as set forth in Article 23 of the New York State Correction Law:
"MATTER OF GHORAB, 219 A.D.2d 793, 631 N.Y.S.2d 786 (3rd Dept. 1995)
On her application for Federal employment, claimant failed to disclose a prior felony conviction. Claimant subsequently resigned from her position when informed that she would otherwise be terminated. The Board found that the falsification of claimant's employment application constituted misconduct and, consequently, ruled that claimant was disqualified from receiving benefits. Claimant asserts that because she was given a certificate of relief from disabilities, she did not believe she had to disclose her prior felony conviction, and contends that the Board's finding that she engaged in misconduct is not supported by substantial evidence. Although a certificate of relief from disabilities serves to remove any bar to an individual's employment automatically imposed by law, it does not relieve an individual from disclosing a prior criminal conviction (see, Correction Law § 701; Matter of Mirra [Catherwood], 31 A.D.2d 703), nor does it preclude the Board from disqualifying an individual from receiving benefits due to misconduct (see, Matter of Belmar [New York City Bd. of Educ. — Roberts], 122 A.D.2d 478, appeal dismissed 69 N.Y.2d 707; Matter of Bruggeman [Roberts], 101 A.D.2d 973, lv denied 63 N.Y.2d 608; see also, Matter of Riforgiato v Board of Educ., 86 A.D.2d 757; Matter of Springer v Whalen, 68 A.D.2d 1011, lv denied 47 N.Y.2d 710). Claimant's failure to disclose her prior felony conviction provided the basis for the Board's finding of misconduct and, therefore, we find that substantial evidence supports the Board's decision.
Ordered that the decision is affirmed, without costs."
"MATTER OF GHORAB, 219 A.D.2d 793, 631 N.Y.S.2d 786 (3rd Dept. 1995)
On her application for Federal employment, claimant failed to disclose a prior felony conviction. Claimant subsequently resigned from her position when informed that she would otherwise be terminated. The Board found that the falsification of claimant's employment application constituted misconduct and, consequently, ruled that claimant was disqualified from receiving benefits. Claimant asserts that because she was given a certificate of relief from disabilities, she did not believe she had to disclose her prior felony conviction, and contends that the Board's finding that she engaged in misconduct is not supported by substantial evidence. Although a certificate of relief from disabilities serves to remove any bar to an individual's employment automatically imposed by law, it does not relieve an individual from disclosing a prior criminal conviction (see, Correction Law § 701; Matter of Mirra [Catherwood], 31 A.D.2d 703), nor does it preclude the Board from disqualifying an individual from receiving benefits due to misconduct (see, Matter of Belmar [New York City Bd. of Educ. — Roberts], 122 A.D.2d 478, appeal dismissed 69 N.Y.2d 707; Matter of Bruggeman [Roberts], 101 A.D.2d 973, lv denied 63 N.Y.2d 608; see also, Matter of Riforgiato v Board of Educ., 86 A.D.2d 757; Matter of Springer v Whalen, 68 A.D.2d 1011, lv denied 47 N.Y.2d 710). Claimant's failure to disclose her prior felony conviction provided the basis for the Board's finding of misconduct and, therefore, we find that substantial evidence supports the Board's decision.
Ordered that the decision is affirmed, without costs."
Wednesday, May 2, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
Disclosure of past criminal issues is the first consideration in the discussion of a false job application and unemployment insurance benefits. The DOL addresses this in a Special Bulletin:
"Special Bulletin A-710-50 (Revised)
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
September 16, 1988
Interpretation Service-Benefit Claims
SPECIAL BULLETIN
Discharge for Arrest or Conviction
Attached is a revised page one for Special Bulletin A-710-50 dated June 28, 1977. This page should be substituted for the current page one, which should be discarded.
This revision states more accurately the exceptions to the provision that makes it an unlawful discriminatory practice to question a prospective employee about or discharge a current employee because of an arrest or criminal accusation.
The only exceptions are situations where such questions are required or permitted by another statute. Employers affected by this exception include stock brokerage firms and those such as law enforcement, guard or detective agencies when required to provide information concerning prospective or current employees pursuant to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons. This exception would not apply to employees such as unarmed personnel employed by these agencies.
DISCHARGE FOR ARREST OR CONVICTION
THE HUMAN RIGHTS LAW
Article 15 of the New York State Executive Law, known as "The Human Rights Law", was recently amended by adding two new subdivisions (Sections 296.14 and 296.15), making it unlawful generally to discriminate against a person because he was arrested or convicted of a crime.
This Special Bulletin discusses the effect of the new provisions in cases where a claimant has been discharged because of an arrest or conviction, or because he concealed either or both from his employer.
Cases which cannot be readily resolved may be submitted through channels to the Interpretation Section of the Adjudication Services Office for an opinion.
The new provisions
Arrest
The new provisions state that, except where required or permitted by other statutes, it is an unlawful discriminatory practice for an employer to:
Inquire on an employment application or otherwise, whether an individual has ever been arrested or accused of a crime, or
Discharge an employee because of an arrest or accusation, when such arrest or accusation terminated in favor of the accused.
(Subject of the revision): Under certain circumstances an employer may ask questions of an employee or prospective employee about prior arrests or criminal accusations. Evidence of prior arrests and/or criminal accusations could result in an employee's discharge. This would apply to such employers as:
A stock brokerage firm
or
A law enforcement agency, guard or detective agency, when required to provide information relevant to the licensing activities of governmental bodies in the regulation of guns, firearms or other deadly weapons.
Conviction
Under the new provisions, it is not unlawful for an employer to inquire whether an individual has-ever been convicted of a crime. However, it is unlawful to discharge an employee for that reason, unless either-of the following can be shown:
There is a direct relationship between the offense and the employment; that is, the nature of the criminal conduct for which the employee was convicted has a direct bearing on his fitness or ability to perform any of the duties or responsibilities of the job, or
Continuing the employment would involve an unreasonable risk to property or to the safety or welfare of any person or the general public.
The law also provides that in making & determination regarding the above, an employer must also consider the public policy of the state to encourage employment of ex-offenders, how long ago the offense occurred, the person's age at the time, the seriousness of the offense, and evidence produced by the person in regard to his rehabilitation and good conduct.
In addition, any person, who has been convicted of a crime and who has been discharged from his employment, must be furnished by the employer, if requested, a written statement setting forth the reasons for discharge.
Criminal charges pending
The new provisions are silent on the question of pending criminal charges, but the State Division of Human Rights has issued an interpretation indicating that it is not unlawful for an employer to inquire if such charges exist or to discharge an employee if they do, and he is not required to justify the discharge as in the case of convictions, outlined in IB above.
Employers covered by the new provisions
The new provision prohibiting discrimination against an individual who has been arrested or accused but cleared, applies to the state and city governments and subdivisions, and private employers.
The new provision prohibiting discrimination against a person who has been convicted of a crime (an "ex-offender") applies to the above public employers, and private employers of 10 or more persons.
Neither of the new provisions, nor the State Human Rights Law of which they are a part, apply to federal employment.
However, for the purpose of adjudicating claims for unemployment insurance, the principles set forth in this Special Bulletin should be applied to separations from all employers, public (including federal) or private, and regardless of the number of their employees.
Application of the new provisions
False statements to employer
Since it is generally unlawful to inquire whether a person has ever been arrested or accused of a crime, a false reply to such question generally is not misconduct under the unemployment insurance law. (Some exceptions where an employer may make such inquiry are given under IA).
Since it is lawful to inquire whether a person has ever been convicted of a crime or has a criminal charge pending against him, a false reply to either question is misconduct under the unemployment insurance law, and a claimant who is discharged solely because of such false answer may be subject to the statutory disqualification.
Arrest which terminated in favor of accused
Since it is generally unlawful to discharge an employee because of an arrest or accusation, when such arrest or accusation terminated in favor of the accused, a discharge under these circumstances is generally not disqualifying.
Conviction
A discharge because of a criminal conviction occurring either before or after commencement of the employment, is unlawful and therefore not disqualifying, unless either of the exceptions listed under 18 above can be shown to exist.
However, even if either exception is shown by the employer to exist, and the discharge is lawful, a disqualification for misconduct cannot be imposed unless the acts for which claimant was discharged were in connection with his employment within the meaning of the unemployment insurance law. Acts which occurred prior to commencement of the employment generally would not meet this test. On the other hand, behavior off the job may in some instances be misconduct in connection with employment: see Interpretation Service Index 1130.
Criminal charges pending
Since it is not unlawful to discharge an employee because of a criminal charge pending against him, a discharge for such reason may, be disqualifying if the acts charged were in connection with employment, within the meaning of the unemployment insurance law. As noted in the preceding paragraph, acts which occurred prior to commencement of the employment generally would not meet this test. On the other hand, behavior off the job may in some instances be misconduct in connection with employment.
Misconduct in connection with employment
The new provisions impose restrictions on the right of an employer to inquire about, or discharge an employee for, an arrest or conviction record. Except for this, they do not interfere with his right to discharge any employee who commits an act, dishonest or otherwise, in the course of his employment, which is prejudicial to the employer's interests. In such case the disqualification for misconduct under Section 593.3 of the unemployment insurance law should be imposed; and if the act also constitutes a felony, or results in criminal proceedings following an indictment, benefits should be withheld in accordance with Section 593.4, the "criminal acts" provision. (See Interpretation Service, Index 113O, 1150, and 1195; and Manual of Procedure III 6226)
The rule at Index 1150A-3 (A-750-1300) should be marked obsolete.
Illustrations
An armed guard was discharged because of a false reply to a question on his employment application as to whether he had ever been arrested. It was discovered that he had once been arrested for felonious assault but the charges were dismissed. Guard agencies are permitted by law to ask such question. Misconduct disqualification applies.
Same facts as in 1 above except that claimant was an assembler in an auto parts factory. The employer is not permitted by law to ask such question. No disqualification.
A tester in an electronics plant falsified his employment application by showing incorrect dates in his work history in order to omit a period of employment which ended in discharge for theft. He had never been arrested or prosecuted. He was discharged because of the omission. Misconduct disqualification applies.
A brokerage clerk was discharged because it was discovered he had once been convicted of possession of marijuana. Although he had denied any prior arrests or convictions on his employment application, he was not discharged for such denial. Employer was unable to show justification for the discharge as described under IB above. No disqualification.
A presser in a sportswear factory was discharged because of a pending criminal charge of rape, not connected with his employment. Although the discharge was not unlawful, no disqualification applies.
A bookkeeper for a wholesale bakery was discharged when it was discovered she had been convicted of an embezzlement charge filed by a former employer. No employment application had been required by the bakery, but it was able to show justification for the discharge as described under IB above. No disqualification applies, since there was no misconduct in connection with claimant's employment at the bakery .
A supermarket cashier was discharged for attempting to leave the premises with a can of coffee for which she had not paid. No charges were pressed by the employer. Disqualification for misconduct applies.
(The text of Sections 296.14 and 296.15 of Article 15 of the New York State Executive Law, and pertinent provisions of Article 23A of the New York State Correction Law, are attached.)
New York State Executive Law, Article 15
Section 296.14
It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons.
Section 296.15
It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his having been convicted of one or more criminal offenses, or by reason of a finding of a Lack of "good moral character" which is based upon his having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-a of the correction law.
New York State Correction Law, Article 23A
Section 752
Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited
No application for any license or employment, to which the provisions of this article are applicable, shall be denied by reason of the applicant's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless:
there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or
the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Section 753
Factors to be considered concerning a previous criminal conviction; presumption
1. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors:
The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
The specific duties and responsibilities necessarily related to the license or employment sought.
The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
The time which has elapsed since the occurrence of the criminal offense or offenses.
The age of the person at the time of occurrence of the criminal offense or offenses.
The seriousness of the offense or offenses.
Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
2. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.
Section 754
Written statement upon denial of license or employment
At the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial.
------------------------------------------------------------------------------"
"Special Bulletin A-710-50 (Revised)
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
September 16, 1988
Interpretation Service-Benefit Claims
SPECIAL BULLETIN
Discharge for Arrest or Conviction
Attached is a revised page one for Special Bulletin A-710-50 dated June 28, 1977. This page should be substituted for the current page one, which should be discarded.
This revision states more accurately the exceptions to the provision that makes it an unlawful discriminatory practice to question a prospective employee about or discharge a current employee because of an arrest or criminal accusation.
The only exceptions are situations where such questions are required or permitted by another statute. Employers affected by this exception include stock brokerage firms and those such as law enforcement, guard or detective agencies when required to provide information concerning prospective or current employees pursuant to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons. This exception would not apply to employees such as unarmed personnel employed by these agencies.
DISCHARGE FOR ARREST OR CONVICTION
THE HUMAN RIGHTS LAW
Article 15 of the New York State Executive Law, known as "The Human Rights Law", was recently amended by adding two new subdivisions (Sections 296.14 and 296.15), making it unlawful generally to discriminate against a person because he was arrested or convicted of a crime.
This Special Bulletin discusses the effect of the new provisions in cases where a claimant has been discharged because of an arrest or conviction, or because he concealed either or both from his employer.
Cases which cannot be readily resolved may be submitted through channels to the Interpretation Section of the Adjudication Services Office for an opinion.
The new provisions
Arrest
The new provisions state that, except where required or permitted by other statutes, it is an unlawful discriminatory practice for an employer to:
Inquire on an employment application or otherwise, whether an individual has ever been arrested or accused of a crime, or
Discharge an employee because of an arrest or accusation, when such arrest or accusation terminated in favor of the accused.
(Subject of the revision): Under certain circumstances an employer may ask questions of an employee or prospective employee about prior arrests or criminal accusations. Evidence of prior arrests and/or criminal accusations could result in an employee's discharge. This would apply to such employers as:
A stock brokerage firm
or
A law enforcement agency, guard or detective agency, when required to provide information relevant to the licensing activities of governmental bodies in the regulation of guns, firearms or other deadly weapons.
Conviction
Under the new provisions, it is not unlawful for an employer to inquire whether an individual has-ever been convicted of a crime. However, it is unlawful to discharge an employee for that reason, unless either-of the following can be shown:
There is a direct relationship between the offense and the employment; that is, the nature of the criminal conduct for which the employee was convicted has a direct bearing on his fitness or ability to perform any of the duties or responsibilities of the job, or
Continuing the employment would involve an unreasonable risk to property or to the safety or welfare of any person or the general public.
The law also provides that in making & determination regarding the above, an employer must also consider the public policy of the state to encourage employment of ex-offenders, how long ago the offense occurred, the person's age at the time, the seriousness of the offense, and evidence produced by the person in regard to his rehabilitation and good conduct.
In addition, any person, who has been convicted of a crime and who has been discharged from his employment, must be furnished by the employer, if requested, a written statement setting forth the reasons for discharge.
Criminal charges pending
The new provisions are silent on the question of pending criminal charges, but the State Division of Human Rights has issued an interpretation indicating that it is not unlawful for an employer to inquire if such charges exist or to discharge an employee if they do, and he is not required to justify the discharge as in the case of convictions, outlined in IB above.
Employers covered by the new provisions
The new provision prohibiting discrimination against an individual who has been arrested or accused but cleared, applies to the state and city governments and subdivisions, and private employers.
The new provision prohibiting discrimination against a person who has been convicted of a crime (an "ex-offender") applies to the above public employers, and private employers of 10 or more persons.
Neither of the new provisions, nor the State Human Rights Law of which they are a part, apply to federal employment.
However, for the purpose of adjudicating claims for unemployment insurance, the principles set forth in this Special Bulletin should be applied to separations from all employers, public (including federal) or private, and regardless of the number of their employees.
Application of the new provisions
False statements to employer
Since it is generally unlawful to inquire whether a person has ever been arrested or accused of a crime, a false reply to such question generally is not misconduct under the unemployment insurance law. (Some exceptions where an employer may make such inquiry are given under IA).
Since it is lawful to inquire whether a person has ever been convicted of a crime or has a criminal charge pending against him, a false reply to either question is misconduct under the unemployment insurance law, and a claimant who is discharged solely because of such false answer may be subject to the statutory disqualification.
Arrest which terminated in favor of accused
Since it is generally unlawful to discharge an employee because of an arrest or accusation, when such arrest or accusation terminated in favor of the accused, a discharge under these circumstances is generally not disqualifying.
Conviction
A discharge because of a criminal conviction occurring either before or after commencement of the employment, is unlawful and therefore not disqualifying, unless either of the exceptions listed under 18 above can be shown to exist.
However, even if either exception is shown by the employer to exist, and the discharge is lawful, a disqualification for misconduct cannot be imposed unless the acts for which claimant was discharged were in connection with his employment within the meaning of the unemployment insurance law. Acts which occurred prior to commencement of the employment generally would not meet this test. On the other hand, behavior off the job may in some instances be misconduct in connection with employment: see Interpretation Service Index 1130.
Criminal charges pending
Since it is not unlawful to discharge an employee because of a criminal charge pending against him, a discharge for such reason may, be disqualifying if the acts charged were in connection with employment, within the meaning of the unemployment insurance law. As noted in the preceding paragraph, acts which occurred prior to commencement of the employment generally would not meet this test. On the other hand, behavior off the job may in some instances be misconduct in connection with employment.
Misconduct in connection with employment
The new provisions impose restrictions on the right of an employer to inquire about, or discharge an employee for, an arrest or conviction record. Except for this, they do not interfere with his right to discharge any employee who commits an act, dishonest or otherwise, in the course of his employment, which is prejudicial to the employer's interests. In such case the disqualification for misconduct under Section 593.3 of the unemployment insurance law should be imposed; and if the act also constitutes a felony, or results in criminal proceedings following an indictment, benefits should be withheld in accordance with Section 593.4, the "criminal acts" provision. (See Interpretation Service, Index 113O, 1150, and 1195; and Manual of Procedure III 6226)
The rule at Index 1150A-3 (A-750-1300) should be marked obsolete.
Illustrations
An armed guard was discharged because of a false reply to a question on his employment application as to whether he had ever been arrested. It was discovered that he had once been arrested for felonious assault but the charges were dismissed. Guard agencies are permitted by law to ask such question. Misconduct disqualification applies.
Same facts as in 1 above except that claimant was an assembler in an auto parts factory. The employer is not permitted by law to ask such question. No disqualification.
A tester in an electronics plant falsified his employment application by showing incorrect dates in his work history in order to omit a period of employment which ended in discharge for theft. He had never been arrested or prosecuted. He was discharged because of the omission. Misconduct disqualification applies.
A brokerage clerk was discharged because it was discovered he had once been convicted of possession of marijuana. Although he had denied any prior arrests or convictions on his employment application, he was not discharged for such denial. Employer was unable to show justification for the discharge as described under IB above. No disqualification.
A presser in a sportswear factory was discharged because of a pending criminal charge of rape, not connected with his employment. Although the discharge was not unlawful, no disqualification applies.
A bookkeeper for a wholesale bakery was discharged when it was discovered she had been convicted of an embezzlement charge filed by a former employer. No employment application had been required by the bakery, but it was able to show justification for the discharge as described under IB above. No disqualification applies, since there was no misconduct in connection with claimant's employment at the bakery .
A supermarket cashier was discharged for attempting to leave the premises with a can of coffee for which she had not paid. No charges were pressed by the employer. Disqualification for misconduct applies.
(The text of Sections 296.14 and 296.15 of Article 15 of the New York State Executive Law, and pertinent provisions of Article 23A of the New York State Correction Law, are attached.)
New York State Executive Law, Article 15
Section 296.14
It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons.
Section 296.15
It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his having been convicted of one or more criminal offenses, or by reason of a finding of a Lack of "good moral character" which is based upon his having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-a of the correction law.
New York State Correction Law, Article 23A
Section 752
Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited
No application for any license or employment, to which the provisions of this article are applicable, shall be denied by reason of the applicant's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless:
there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or
the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Section 753
Factors to be considered concerning a previous criminal conviction; presumption
1. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors:
The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
The specific duties and responsibilities necessarily related to the license or employment sought.
The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
The time which has elapsed since the occurrence of the criminal offense or offenses.
The age of the person at the time of occurrence of the criminal offense or offenses.
The seriousness of the offense or offenses.
Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
2. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.
Section 754
Written statement upon denial of license or employment
At the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial.
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Tuesday, May 1, 2012
NEW YORK UNEMPLOYMENT INSURANCE - FALSE JOB APPLICATION
In this economy, the falsification of resumes and job applications is sometimes suggested...there are even web sites that demonstrate and encourage job applicants to do so. When employers verify a job application and discover, before employment, that there was a falsification, the employee usually will not be hired.
However, when employers verify a job application and discover, after employment, that there was a falsification, the employee usually will be fired and, for purposes of unemployment insurance, the falsification of an employment application may, under various circumstances, constitute misconduct.
However, when employers verify a job application and discover, after employment, that there was a falsification, the employee usually will be fired and, for purposes of unemployment insurance, the falsification of an employment application may, under various circumstances, constitute misconduct.
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