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)"