NEW YORK UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

And now the dissent in:

Mailed and Filed: NOVEMBER 20, 2013IN THE MATTER OF: Appeal Board No. 570626 A

"DISSENT:

I cannot agree with the majority opinion in this case. Contrary to the conclusion of the majority members of the Board, the credible evidence fails to establish that the claimant was, in fact, unable to handle the physical demands of the job or even that he quit for that reason. The claimant testified that he had no intention of quitting; rather, he took a day off and, coincidentally, on that same day he received a telephone call from a prospective employer for a job interview. He also testified that when the owner of the employment agency called the claimant to find out if he was planning to return to work, he decided, on the spur of the moment, to quit, Moreover, he only made the decision after the owner asked him several times if he would be returning. As the claimant had not planned on quitting until after he was contacted by another prospective employer, it cannot be concluded that he was unable to handle the physical demands of the job. Further, even if it is accepted that the job was causing the claimant to experience some physical discomfort, the record does not conclusively establish that he afforded the employer an opportunity to address his concerns. It is uncontested that the claimant did not complain to the owner of the employment agency about any back pain. While the claimant did testify that he asked a non-site supervisor about whether there were mats available on which he could stand, the claimant's testimony was inconsistent on whether he told her he needed the mats to alleviate back pain, or whether he just asked about the availability of mats.

The majority has also found that the claimant had good cause to quit because he had not accepted the terms and conditions of employment, having worked only four days at the job. While there have been recent Board cases finding that a claimant has good cause to quit during a "trial period" (the length of which has not been defined), these cases appear to be an unwarranted expansion of an earlier, very limited, exception made for claimants who quit shortly after accepting employment in positions for which they were not suited by training or experience. As the courts have made clear, the terms and conditions of employment are accepted at hire, not after a short "trial period".

In Matter of Strader (49 AD3d 1120 [3rd Dept 2008]), the claimant, an office manager,quit after learning that he would be paid his regular hourly wage for voluntary overtime hours, rather than time and a half. In finding that the claimant did not have good cause to quit, the court held that there was no change in the terms and conditions of his employment, given that there had been no discussion about the overtime rate at the time he was hired. In Matter of Moore (32 AD3d 1088 [3rd Dept 2006]), the claimant quit after a few weeks on the grounds that he could not afford the increase in his car insurance as a result of using his personal vehicle for the job. In finding that the claimant did not have good cause, the court wrote that "[a]t the time that he accepted the job, claimant knew that he was required to use his personal vehicle for deliveries and that there would be an increase in his automobile insurance premium [emphasis added]"; and concluded that the claimant quit because of his dissatisfaction with a term of his employment. In Matter of Matuszewski (24 AD3d 1153 [3rd Dept 2005]), involving a claimant who quit after six days, the court noted the employer's testimony that the claimant was aware of the job responsibilities at the time of hire. And in Matter of Conners (9 AD3d 703 [3rd Dept2004]) the court, in finding that the claimant - who quit after one month due to his dissatisfaction with making appearances in small claims court - did not have good cause to leave his employment, noted that the claimant had known at the time that he was hired that his duties would include making evening appearances. These cases make it clear that the terms and conditions are agreed upon at hire, and not at some later date. As the Conners court held: "As it is well established that once the terms of employment have been agreed upon, such terms cannot thereafter be invoked as valid grounds for quitting." Contrary to the majority's opinion, these cases are dispositive, given that the record in this case fails to establish that the claimant quit due to the physical demands of the job. As to the decision in Appeal Board No. 566789, referenced in the majority's opinion, it must be noted that although claimant quit due to the physical demands of the job, the dispositive factor was the change in terms and conditions of employment: The claimant in that case had been hired on the understanding that he would be performing oil changes but found that he was being given the more arduous task of changing tires.There is no contention in this case that the claimant's job duties changed between the time of hire and the date of his resignation.

The claimant testified that he was aware of the job duties at the time he started the job.Hence, he had, in fact, accepted the terms and conditions of his employment. His subsequent dissatisfaction with those terms and conditions - which is clear from his testimony

For these reasons, I would affirm the decision of the Administrative Law Judge.

MICHAEL T. GREASON, MEMBER"