NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT, EMPLOYEE FIGHTS AND SELF DEFENSE

This can be a common scenario: an employee get into a fight. A clear case of misconduct yet a fight with a fellow employee in which a claimant acted in self-defense may not constitute misconduct. (Ref. Dec. M11-7-38R; B-6-38; similarly A.B. 33,250-52).

According to the DOL comments:

"1. It is well established that a claimant who initiates a physical altercation with a co-worker, a supervisor or a customer in violation of an employer rule forbidding fighting, commits misconduct.

2. On occasion a claimant may be drawn into a fight involuntarily. Under such circumstances, the claimant has an obligation to withdraw from the fight at the first opportunity. The Appeal Board has previously held that it is immaterial who strikes the first blow if, once the fight commences, neither employee is willing to abandon it. (A.B. 319,018)

3. Escalating an argument is inappropriate behavior for the workplace. When a verbal dispute threatens to become physical" one means of avoiding physical confrontation is to seek assistance from a supervisor. Failure to do so, thus allowing a fight to ensue, is misconduct. (A.B. 345,987)

4. Not all physical fights allow a person to retreat. A claimant will not be subject to disqualification if (s)he fights solely out of self-defense. (A.B. 320,635) The claimant acts in self defense when (s)he

a. neither initiates nor provokes the physical altercation,

b. has no available retreat once it begins,

c. reasonably believes returning blows is necessary to avoid suffering additional, serious harm, and

d. responds to the attack with no more than the minimal degree of force necessary to disengage from the fight."