THE MAIN DEFENSE TO A DISCRIMINATION CLAIM

Although there can be exceptions to this rule, if an employee is terminated solely for cause, it is not discrimination. For a discrimination claim, there must be another motivating factor which is discriminatory.

Hutting v Independent Living, Inc., 2021 NY Slip Op 05551, Decided on October 13, 2021, Appellate Division, Second Department:

"In 2015, the plaintiff commenced this action against the defendant, his former employer, to recover, inter alia, damages for employment discrimination on the basis of sexual orientation and retaliation. The plaintiff amended the complaint in September 2016. Thereafter, the defendant moved for summary judgment dismissing the amended complaint. In an order dated July 20, 2017, the Supreme Court, inter alia, granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging employment discrimination on the basis of sexual orientation in violation of Title VII of the Civil Rights Act of 1964 (hereinafter Title VII) and Executive Law § 296, and the cause of action alleging retaliation under the Family and Medical Leave Act of 1993 (hereinafter FMLA) § 2615. The plaintiff appeals.

The Supreme Court properly granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging employment discrimination on the basis of sexual orientation in violation of Title VII and Executive Law § 296. Title VII's prohibition against sex discrimination encompasses discrimination based on sexual orientation (see Bostock v Clayton Cty., ___ US ___, ___, 140 S Ct 1731, 1737). The standards for establishing unlawful discrimination under Executive Law § 296 are the same as those governing cases under Title VII (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 n 3; see also Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 330). To establish [*2]entitlement to summary judgment in a case alleging employment discrimination on the basis of sexual orientation in violation of Title VII and Executive Law § 296, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a material issue of fact as to whether the defendant's explanations were pretextual (see Forrest v Jewish Guild for the Blind, 3 NY3d at 305; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1004).

Here, the defendant met its prima facie burden by proffering legitimate, nondiscriminatory reasons for its termination of the plaintiff's employment and demonstrating the absence of material issues of fact as to whether its explanations were pretextual (see Forrest v Jewish Guild for the Blind, 3 NY3d at 305; Keceli v Yonkers Racing Corp., 155 AD3d 1014, 1016). In support of its motion, the defendant submitted evidence that the plaintiff's employment was terminated for his admitted failure to follow agency procedures regarding use of agency vehicles and submission of vouchers for expenses. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the plaintiff's sexual orientation was a motivating factor in the defendant's decision to terminate his employment (see 42 USC 2000e-2[m]; Keceli v Yonkers Racing Corp., 155 AD3d at 1016).

The Supreme Court also properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging retaliation under the FMLA. Here, contrary to the plaintiff's contention, the defendant submitted evidence demonstrating, prima facie, that the plaintiff did not suffer any adverse employment action upon his return from FMLA leave, as the change in his supervisor was contemplated before he took such leave and he did not experience any change in salary or benefits (see Sosa v New York City Dept. of Educ., 819 Fed Appx 30, 34 [2d Cir]; see also Keceli v Yonkers Racing Corp., 155 AD3d at 1016). In opposition, the plaintiff failed to raise a triable issue of fact."

MEDICAL MARIJUANA AND THE WORKPLACE

 

Gordon v. Consolidated Edison, Inc., 2021 NY Slip Op 492 - NY: Appellate Div., 1st Dept. January 28, 2021:

"The record shows that plaintiff worked for defendant as a financial analyst. Plaintiff suffered from irritable bowel disease (IBD), one of the conditions covered by the Compassionate Care Act (CCA) (see PHL 3360 to 3369-e), and in December 2016, she consulted a physician about whether medical marijuana would help with her IBD symptoms. The physician told plaintiff that she would be a suitable medical marijuana patient. On December 17, 2016, plaintiff tried marijuana to see if it would alleviate her IBD symptoms, and, plaintiff alleged, the drug worked "instantaneously" to relieve her symptoms. The next day, plaintiff contacted a physician registered with the New York State Department of Health's Medical Marijuana Program (MMP) to certify patients for medical marijuana treatment, and made an appointment to see the doctor on December 27, 2016.

In the meantime, on December 21, 2016, plaintiff was randomly selected for a drug test in accordance with defendant's standing policy, and she provided a urine sample and tested positive for marijuana. On December 27, 2016, plaintiff saw the MMP-registered physician, who certified that plaintiff was likely to benefit from treatment with medical marijuana. On December 29, 2016, the MMP website stated that she was approved as a medical marijuana patient.

On that same day, defendant's Human Resources (HR) department informed plaintiff that she had tested positive for marijuana use. Plaintiff responded that she was a medical marijuana patient, and that she had used marijuana to treat her IBD symptoms. The HR officer scheduled an appointment for plaintiff to meet defendant's in-house medical review officer (MRO), a physician, on January 5, 2017.

On January 5, plaintiff saw the MRO, who ascertained that when plaintiff used marijuana on December 17 she was not yet a certified medical marijuana patient. The MRO concluded that plaintiff's use violated defendant's drug use policy, and referred plaintiff back to the HR department for action. The HR department decided that, because plaintiff was still a probationary employee, she was not eligible for accommodation and should be terminated. The HR department arranged to meet with plaintiff on January 11, 2017, to inform her of the decision.

On January 9, 2017, the MMP issued plaintiff's Registry ID card. On January 10 and 11, 2017, plaintiff reiterated to the HR department and her supervisor that she was a certified medical marijuana patient. At the meeting on January 11, defendant terminated plaintiff's employment.

The foregoing timeline establishes that there are issues of fact, for purposes of plaintiff's claim for failure to accommodate under the State Human Rights Law (HRL), as to whether defendant adequately engaged in a cooperative dialogue with plaintiff (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 834 [2014]; Phillips v City of New York, 66 AD3d 170, 176 [1st Dept 2009]) to determine whether it could reasonably accommodate her status as a medical marijuana patient (see PHL 3369[2]). Notably, questions of fact exist as to whether defendant improperly cut the dialogue process short when it discovered that plaintiff was a probationary employee, and refused to consider accommodating her — as it regularly did for permanent employees — by, for example, giving her discipline short of termination, or simply overlooking the one-time technical violation in light of her contemporaneously acquired status as a medical marijuana patient (see Matter of McEniry v Landi, 84 NY2d 554, 560 [1994]).

This case is distinguishable from cases like Hazen v Hill Betts & Nash LLP (92 AD3d 162 [1st Dept 2012], lv denied 19 NY3d 812 [2012]), where we held that even when an employee's "misconduct was caused by his disability, [the employer] was not required to excuse that misconduct as an accommodation" (id. at 170). Here, plaintiff did not here seek certification for medical marijuana use after testing positive for its use. Instead, her pre-certification marijuana use was the beginning of a process which ended with her certification for medicinal use. Plaintiff began the certification process before she tested positive at work. Nor is there any allegation that plaintiff's use of marijuana, either before or after certification, has ever affected the quality of her work or her ability to do that work, or that she has ever used marijuana, medicinal or otherwise, at the workplace.

The State HRL defines status as a medical marijuana patient as a protected disability, but the City HRL does not. Although the City HRL must be construed liberally to ensure maximum protection (see Administrative Code of City of NY § 8-130[a]), certification as a medical marijuana patient is (other than as specified for purposes of claims under the State HRL) a legal classification. It is not a "physical, medical, mental, or psychological impairment," which is how disabilities are defined under the City HRL (Administrative Code § 8-102).

Nevertheless, plaintiff's IBD, is a physical impairment and thus a disability under the City HRL. Accordingly, issues of fact exist as to whether defendant should have permitted plaintiff to treat her IBD through the medical use of marijuana, as a reasonable accommodation. In that regard, a further issue of fact exists as to whether the accommodation would reasonably extend to excusing the single pre-certification use of marijuana, and whether defendant fulfilled its duty to engage in an interactive dialogue with plaintiff aimed at reaching a reasonable accommodation for her disabling condition.

With respect to plaintiff's claim of disability discrimination, plaintiff has raised an issue of fact as to whether defendant's proffered reason for terminating plaintiff, i.e., that she violated the company's drug policy by using marijuana prior to her certification as a medical marijuana patient, was pretextual (see Uwoghiren v City of New York, 148 AD3d 457, 457-458 [1st Dept 2017]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 36 [1st Dept 2011], lv denied 18 NY3d 811 [2012]).

However, plaintiff's third cause of action for violation of PHL 3369 must be dismissed, because the provisions of PHL 3369 demonstrate that creation of a private right of action would not be consistent with the CCA's statutory scheme (see Sheehy v Big Flats Community Day, Inc., 73 NY2d 629, 633 [1989]; Rhodes v Herz, 84 AD3d 1, 10-11 [1st Dept 2011], lv dismissed 18 NY3d 838 [2011]). Section 3369 expressly references several well-developed existing statutes prohibiting discrimination, including the State HRL, Civil Rights Law § 40-c, and the hate law provisions of the Penal Law.

These express references evidence the legislature's intention to invoke the protections afforded by those statutes as the enforcement mechanisms for violations of the CCA. In particular, the CCA's unique provision that status as a medical marijuana patient shall constitute a "disability" for purposes of the State HRL, signals the legislature's intent to incorporate that highly developed body of law as a mechanism for certified patients' protection of their right to avail themselves of the benefits of medical marijuana.

Accordingly, we modify solely to grant defendant's motion to the extent of dismissing plaintiff's third cause of action for violation of PHL 3369."

NYC GIVES FAST FOOD WORKERS EMPLOYMENT RIGHTS

 

With an at-will employment, New York "neither recognizes a tort of wrongful discharge nor requires good faith in an at-will employment relationship" (Matter of De Petris v Union Settlement Assn., 86 NY2d 406, 410 [1995], citing Murphy v American Home Prods. Corp., 58 NY2d 293 [1983]). The employer could discharge the employee for any reason, absent discrimination, etc.

But fast food workers in New York City now have new rights effective this summer. Earlier this month, the following was added to the NYC Administrative Code:

"§ 20-1272 Prohibition on wrongful discharge.

   a.   A fast food employer shall not discharge a fast food employee who has completed such employer’s probation period except for just cause or for a bona fide economic reason.

   b.   In determining whether a fast food employee has been discharged for just cause, the fact-finder shall consider, in addition to any other relevant factors, whether:

      1.   The fast food employee knew or should have known of the fast food employer’s policy, rule or practice that is the basis for progressive discipline or discharge;

      2.   The fast food employer provided relevant and adequate training to the fast food employee;

      3.   The fast food employer’s policy, rule or practice, including the utilization of progressive discipline, was reasonable and applied consistently;

      4.   The fast food employer undertook a fair and objective investigation into the job performance or misconduct; and

      5.   The fast food employee violated the policy, rule or practice or committed the misconduct that is the basis for progressive discipline or discharge.

   c.   Except where termination is for an egregious failure by the employee to perform their duties, or for egregious misconduct, a termination shall not be considered based on just cause unless (1) the fast food employer has utilized progressive discipline; provided, however, that the fast food employer may not rely on discipline issued more than one year before the purported just cause termination, and (2) the fast food employer had a written policy on progressive discipline in effect at the fast food establishment and that was provided to the fast food employee.

   d.   Within 5 days of discharging a fast food employee, the fast food employer shall provide a written explanation to the fast food employee of the precise reasons for their discharge. In determining whether a fast food employer had just cause for discharge, the fact-finder may not consider any reasons proffered by the fast food employer but not included in such written explanation provided to the fast food employee.

   e.   The fast food employer shall bear the burden of proving just cause or a bona fide economic reason by a preponderance of the evidence in any proceeding brought pursuant to this subchapter, subject to the rules of evidence as set forth in the civil practice law and rules or, where applicable, the common law.

   f.   In any action or proceeding brought pursuant to sections 20-1207, 20-1211, or 20-1273, if a fast food employer is found to have unlawfully discharged a fast food employee in violation of this subchapter the relief shall include an order to reinstate or restore the hours of the fast food employee, unless waived by the fast food employee, and, in any such proceeding brought pursuant to 20-1211 or 20-1273 where a fast food employer is found to have unlawfully discharged a fast food employee in violation of this subchapter, the fast food employer shall be ordered to pay the reasonable attorneys’ fees and costs of the fast food employee.

   g.   A discharge shall not be considered based on a bona fide economic reason unless supported by a fast food employer’s business records showing that the closing, or technological or reorganizational changes are in response to a reduction in volume of production, sales, or profit.

   h.   Discharges of fast food employees based on bona fide economic reason shall be done in reverse order of seniority in the fast food establishment where the discharge is to occur, so that employees with the greatest seniority shall be retained the longest and reinstated or restored hours first. In accordance with section 20-1241, a fast food employer shall make reasonable efforts to offer reinstatement or restoration of hours, as applicable, to any fast food employee discharged based on a bona fide economic reason within the previous twelve months, if any, before the fast food employer may offer or distribute shifts to other employees or hire any new fast food employees.

(L.L. 2021/002, 1/5/2021, eff. 7/4/2021; Am. L.L. 2021/001, 1/5/2021, eff. 7/4/2021)"            

THE RAT RULE

Since it is the Year of the Rat, this is from the ABA Model Rules of Professional Conduct and some legal writers have referred to this as the "Rat Rule"

"Rule 8.3: Reporting Professional Misconduct

Maintaining The Integrity of The Profession

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Comment

[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

[2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

[5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law."

UNEMPLOYMENT INSURANCE - MISCONDUCT CHARGE MUST HAVE PRIOR WARNING OF ADVERSE CONSEQUENCE

MATTER OF JELIC, 2018 NY Slip Op 588 - NY: Appellate Div., 3rd Dept. 2018:

"The employer contends that claimant engaged in disqualifying misconduct by virtue of her repeated tardiness and attendance problems and, consequently, she was not entitled to receive unemployment insurance benefits. Preliminarily, we note that "[w]hether a claimant's actions rise to the level of disqualifying misconduct is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct" (Matter of Humphreys [Cayuga Nation of Indians-Commissioner of Labor], 153 AD3d 1017, 1017 [2017] [internal quotation marks and citations omitted]; see Matter of Morris [Lenox Hill Neighborhood House Inc.-Commissioner of Labor, 110 AD3d 1333, 1334 [2013]). The Board's determination in this regard will not be disturbed if it is supported by substantial evidence (see Matter of Mejia [Metropolitan Cable Communications Inc.-Commissioner of Labor], 125 AD3d 1042, 1042 [2015]; Matter of Andrews [A.C. Roman & Assoc.-Commissioner of Labor], 118 AD3d 1216, 1216-1217 [2014]).

The record reveals that, although claimant's tardiness and attendance problems began in December 2014, she was not served with any notices of discipline until May 4, 2015, just after her work-related injury. Claimant's immediate supervisor testified that she instructed claimant on the proper procedure for entering her work hours into the computer system and told her that she had to be at work between the hours of 9:00 a.m. and 5:00 p.m. In fact, claimant received emails in December 2014 and March 2015 reminding her of these requirements. She was not, however, advised that adverse employment consequences would result if she did not follow the proper protocol. Likewise, the notices of discipline did not set forth the disciplinary measures that would be taken if claimant continued to engaged in the objectionable behavior. Furthermore, claimant's termination occurred shortly after she was placed on suspension without affording her an opportunity to correct her behavior^[1]. Under the circumstances presented, although the employer had cause to discharge claimant, she did not exhibit a willful and wanton disregard of the employer's interest rising to the level of disqualifying misconduct (see generally Matter of Chirico [City of Syracuse-Commissioner of Labor], 136 AD3d 1137, 1138 [2016]; Matter of Rahaman [New York Convention Ctr. Operating Corp.-Commissioner of Labor], 101 AD3d 1206, 1207 [2012]). Accordingly, inasmuch as substantial evidence supports the Board's decision, we find no reason to disturb it. We have considered the employer's remaining arguments and find them to be unpersuasive."

UNEMPLOYMENT INSURANCE - A DOCILE EMPLOYEE?

Mailed and Filed: AUGUST 22, 2017, IN THE MATTER OF: Appeal Board No. 596410:

"The claimant worked for a hospital for over 18 years, ending in the position of unit receptionist in the Emergency Room. She worked overnight, from 11:00 PM to 7:00 AM. On March 18, 2016, the claimant was suspended for five days based on an incident in which, according to the "Employee Warning - Disciplinary Notice," the claimant yelled at a coworker over the phone and subsequently stormed into the coworker's area with a pen in her hand which the claimant kept moving in and out of the coworker's face as the claimant yelled at her, all of which was observable by at least one patient. The Employee Warning - Disciplinary Notice stated, "Any repeat will result in progressive discipline up to termination."

On January 8, 2017, the phone at the Emergency Room desk rang after the end of the
claimant's shift. The head nurse for the incoming shift asked the claimant why the claimant was not answering the phone. The claimant answered that she had given report already. In the hospital context, the claimant's answer meant that she had reported all updates to the incoming unit receptionist and she was now off duty. The head nurse then said, "then where are my URs?" A UR is a unit receptionist. Irritated by what she perceived as the head nurse's angry tone, the claimant responded, "I don't know and I don't care." Based on this final incident, the employer discharged the claimant for disruptive behavior after a prior warning. Her last day of work was January 31, 2017.

OPINION: The credible evidence establishes that the claimant was discharged based on the claimant's response of "I don't know and I don't care" after the claimant was spoken to-after the end of her shift-in a manner she perceived as rude. While the claimant's response may not have been entirely appropriate, a worker is not required always to be docile (see Matter of Raven, 40 AD2d 128 [3rd Dept 1972]). Further, the final incident is not comparable to the incident over which the claimant was warned. On January 8, 2017, the claimant did not "storm" anywhere, invade anyone's personal space, or raise her voice, nor is there any allegation that the claimant's single inappropriate comment was overheard by any patient. These facts establish that the claimant's statement does not rise to the level of misconduct for purposes of the Unemployment Insurance Law. The cases cited by the employer on appeal do not compel a different result. The claimant's comment was only minimally detrimental to the employer's interests, and the warning that the employer relies upon is distinguishable from the final incident."

ACTIONS AGAINST EMPLOYERS FOR WRONGS DONE BY EMPLOYEE

ARRASATE v. WESTHAMPTON BEACH UFSD, 2017 NY Slip Op 30508 - NY: Supreme Court 2017  wherein a teacher was convicted of unlawful surveillance in the second degree and endangering the welfare of a child for placing a cell phone in a school locker room and video recorded it.

"With regard to the School District defendants' motion for summary judgment, "[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training" (Quiroz v Zottola, 96 AD3d 1035, 1037, 948 NYS2d 77 [2d Dept 2012]; see Timothy Mc. v Beacon City Sch. Dist., 127 AD3d 826, 7 NYS3d 348 [2d Dept 2015]). Here, the School District defendants established their prima facie entitlement to summary judgment as a matter of law dismissing the portions of plaintiffs' complaint alleging that they may be held vicariously liable for Sheppard's misconduct, as the alleged conduct is a clear departure from the scope of a physical education teacher's employment, and is unrelated to the furtherance of their business (see "John Doe 1" v Board of Educ. of Greenport Union Free Sch. Dist., 100 AD3d 703, 955 NYS2d 600 [2d Dept 2012]; N.X. v Cabrini Med. Ctr., 97 NY2d 247, 739 NYS2d 348 [2002]; Dia CC v Ithaca City Sch. Dist., 304 AD2d 955, 758 NYS2d 197 [3d Dept 2003]).

As to the claims of negligent hiring and negligent supervision, a plaintiff must show that the employer was on notice of a propensity to commit the alleged acts in order to recover against an employer for negligent retention or negligent supervision of an employee (see Doe v Chenango Val. Cent. School Dist., 92 AD3d 1016, 938 NYS2d 360 [3d Dept 2012]; G.G. v Yonkers Gen. Hosp., 50 AD3d 472, 858 NYS2d 11 [1st Dept 2008]; Doe v Rohan, 17 AD3d 509, 793 NYS2d 170 [2d Dept 2005]). Here, the School District defendants established that they did not have notice of Sheppard's propensity to commit the alleged acts. Miller testified at her deposition testimony that she conducted an interview of Sheppard, which was followed by interviews of him conducted by the athletic director and a committee of teachers. She testified that after the assistant superintendent and superintendent performed reference checks on Sheppard, he was hired because he had extraordinarily strong references, connected with the students during the teaching demonstration, and was able to coach multiple sports. Furthermore, Miller testified that Sheppard had no blemish on his record and that parents and students wanted him as a teacher. In opposition, plaintiffs failed to raise a triable issue of fact. While plaintiffs contend that Miller did not have personal knowledge regarding any reference or fingerprint checks relating to Sheppard's hiring, an employer is under no duty to inquire as to whether an employee has been convicted of crimes in the past (see Day v J. Vlachos Hellenic Serv. Station, Inc., 2 AD3d 482, 767 NYS2d 893 [2d Dept 2003]; Yeboah v Snapple, Inc., 286 AD2d 204, 729 NYS2d 32 [1st Dept 2001]). Nevertheless, there is no evidence to suggest that Sheppard had a criminal history prior to the subject incident.

The complaint does not assert a cause of action alleging infliction of emotional distress. However, to the extent that any of the causes of action against the School District defendants could be construed to include a claim for negligent infliction of emotional distress, to establish such a claim, a plaintiff must demonstrate "[a] breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential, result of the breach and when the claim possesses some guarantee of genuineness" (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6, 852 NYS2d 1 [2008]; see Sawitsky v State of New York, 146 AD3d 914, 46 NYS3d 423 [2d Dept 2017]; Taggart v Costabile, 131 AD3d 243, 14 NYS3d 388 [2d Dept 2015]). Moreover, such an action generally requires a plaintiff to show a breach of a duty owed to her which unreasonably endangered her physical safety, or caused her to fear for her own safety (see Sacino v Warwick Val. Cen. School Dist., 138 AD3d 717, 29 NYS3d 57 [2d Dept 2016]). Here, the intervening act of Sheppard in using his cell phone in an attempt to record infant plaintiff and other students in the girls' locker room is a superseding cause which severed the causal nexus between the School District defendants' alleged negligence and the claimant's alleged injuries. Moreover, nothing in the evidence demonstrates that infant plaintiff's physical safety was unreasonably endangered or that she was caused to fear for her own safety.

WHEN DOING SOMETHING OFF THE JOB IS MISCONDUCT

MATTER OF ROY v. Commissioner of Labor, 2016 NY Slip Op 2885 - NY: Appellate Div., 3rd Dept. 2016:

"Substantial evidence supports the Unemployment Insurance Board's determination that claimant was discharged from his position as a food service worker in a nursing home due to disqualifying misconduct. Claimant was obligated "even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation" (Matter of Markowitz [New York City Human Resources Admin.—Roberts], 94 AD2d 155, 156 [1983]; see Matter of Punter [Ross], 43 NY2d 743, 744 [1977]; Matter of Moniz [Nucor Steel Auburn, Inc.—Commissioner of Labor], 126 AD3d 1251, 1252 [2015]). Here, the record contains evidence that claimant created violent and sexually explicit videos using "LEGO" characters, including characters depicting the executive director of the nursing home, claimant's department head and two female coworkers, and posted the videos online. Although claimant testified that he was depicting celebrities and fictional characters in his movies, and not his coworkers, this presented a credibility issue for the Board to resolve (see Matter of Manieson [Commissioner of Labor], 119 AD3d 1312, 1313 [2014]; Matter of Portis [Commissioner of Labor], 118 AD3d 1195, 1196 [2014]). Under these circumstances, we perceive no basis to disturb the Board's determination that claimant engaged in disqualifying misconduct."

FRAUD IN BUSINESS

Mark S. Gottlieb, CPA, PC (MSG) is distinguished as one of New York City and the Tri-State's premier business valuation, forensic accounting, and litigation support firms and the following is from one of the firm's email/blogs:

http://www.msgcpa.com/forensicperspectives/types-of-fraud-in-business/

A NOTE TO CLAIMANTS RE: MISCONDUCT CLAIMS

An article in today's Newsday highlights some of the steps employers may take in terminating an employee - steps which may involve some difficulty for Claimants who are protesting denial on the grounds of misconduct and other issues or potential claims.

Employees may well be advised to document their employment as their employers are doing.

See http://www.newsday.com/business/how-to-fire-a-bully-without-getting-sued-1.9799169

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 15

Here are links to various articles, etc. discussing this issue:

http://www.forbes.com/sites/theemploymentbeat/2013/12/06/will-new-tax-law-punish-employers-that-agree-not-to-content-unemployment-claims/

http://www.lcwlegal.com/85941

http://www.laborandemploymentlawcounsel.com/2013/11/you-dont-have-the-right-to-remain-silent-how-new-unemployment-insurance-integrity-laws-may-affect-your-separation-and-settlement-agreements-with-departing-employees/

http://www.costaffservices.com/news/michigan-unemployment-agency-to-crack-down-on-agreements-not-to-contest-unemployment-claims/

http://minnesotaemployer.com/2012/07/18/can-an-employer-agree-not-to-contest-unemployment-benefits/

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 14

In January of this year, the California law firm of Lozano Smith authored an article "New Risks in the New Year: Use Caution with "Agreement Not to Contest Unemployment Benefits" Clauses". Although dealing with California law, I am mindful that like New York, California had to conform its Unmeployment Insurance rules to conform with the same Unemployment Insurance Integrity Act  originally passed Congress in 2011 that took effect in late 2013.

In many respects, California UI is similar to New York's rules as the article notes:

"California law, enacted in response to the Act, allows for employers to lose credit for payments into their unemployment insurance account when "the employer or agent fails to respond timely or adequately in two instances relating to the individual claim for unemployment compensation benefits." (Unemp. Ins. Code §1026.1.) Further, under California law, if the employer "willfully makes a false statement of representation or willfully fails to report a material fact concerning termination," the employer and/or the employer's agent can be fined between two and ten times the weekly benefit amount (up to a maximum of $4,500). (Unemp. Ins. Code §1142, et. seq.)"

The article conludes with (note that the EDD is the California Employment Development Department similar to New York's Department of Labor Unemployment Insurance Division):

"Going forward, if you are considering a proposed separation agreement that contains a "do not contest" clause, you should:

Avoid blanket "Do Not Contest" clauses that do not comply with state and federal law.

Include language in the agreement clearly stating that you will not withhold or misstate any information in response to inquiries from the EDD"

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 13

As noted in an earlier post, in April of this year, the law firm of Epstein Becker Green posted an article "Act Now Advisory: Changes to New York State's Unemployment Insurance Laws May Affect Employers' Severance Procedures and How Employers Respond to DOL Inquiries". The article concluded with the following \:

"What New York Employers Should Do Now

• .......
• In light of the potential ramifications of a "pattern of failing to respond," consider eliminating provisions from severance agreements whereby the company agrees not to contest applications for UI benefits. The DOL may, in connection with an assessment of UI eligibility, request a copy of the separation agreement, and nothing in that agreement should appear to demonstrate that you will take any unlawful, untruthful, or otherwise improper action in order for a former employee to receive UI benefits."
  

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 12

Continuing with the DOL notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down" - the following has some items highlighted:

"4. Provide separation notices to employees.
You must give written notice to any employee who is terminated from employment. This notice
is required regardless of the reason for separation or whether it is a temporary or permanent
separation. You must provide this notice on a Record of Employment (IA 12.3) or a form
approved by the Department. It must include:

Employer’s name

New York State Employer Registration Number

The address to send the Notice of Potential Charges (LO 400)

A statement that tells the employee to have the form available when filing a claim for
benefits
You may print a supply of Record of Employment (IA 12.3) forms from our web site,
www.labor.ny.gov (follow the forms and publications link), or request approval of your own form
from the Liability and Determination Section. This form helps ensure that notices and requests
are mailed to you promptly and correctly and experience rating charges are accurate."

I had discussed this form earlier - it should be noted that it states:

"Employee: Keep this certificate. Have it with you if you apply for Unemployment Insurance (UI) benefits. This certificate shows that your job was insured. It does not necessarily mean you qualify for benefits. The UI Claims Center will make that determination if you apply."

Thus, this can be construed as a warning to employees that even if you were advised by your employer that they will consent to UI benefits, the DOL may make an adverse determination.

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 11

Continuing with the DOL notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down" - the following has some items highlighted:

"2. Review notices of benefit entitlement or payment.

The Department will send you a Notice of Potential Charges (LO 400) when we determine that a former employee of yours is eligible to collect UI benefits. You can verify that UI benefits paid to former employees are correct based on the wage information. To ensure your account is completely credited, you must report any discrepancy in wage information or disqualifying information on the Notice of Potential Charges (LO 400) within 10 calendar days of the date on the notice. In most cases, this information will affect UI benefit payments from the date it is received.

The Department charges UI benefits paid to claimants to the account of the employers for whom the claimant worked. Every UI benefit payment charged to an employer’s experience rating account may increase their UI rate in future years. Employers are advised, via the Notice of Experience Rating Charges (IA 96), of all UI benefit payments to former employees that are charged to their accounts. This gives you the opportunity to report any UI benefit payments you believe were made incorrectly. If charges appear incorrect for any other reason, contact the Department’s UI Liability and Determination Section at the address in the letterhead.

Promptly contact the Department of Labor Telephone Claim Center at 1-888-890-5090 if you believe the claimant is currently working or otherwise not entitled to UI benefits. If you are in a position to re-employ the claimant, contact the claimant directly. You can find the claimant’s address on the Notice of Potential Charges (LO 400). In order to maximize savings to potential charges on your account, notify us as soon as possible if the claimant refuses rehire, fails to report to work, or if you are unable to contact them."

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 10

In October of 2013, as part of the new rules promulgated, the DOL issued a notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down"

The notice begins:

"Several factors affect your UI costs. They are:

- UI benefits paid to former employees

- The overall condition of the UI Trust Fund

- Your reporting history

You can take steps to manage these factors and keep UI costs as low as possible. "
 

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 10

A note - and this does apply to this discussion - the DOL requires that Employers issue a Record of Employment (IA 12.3) and states:

"Give this completed form to separated employees to facilitate their application for UI benefits

http://labor.ny.gov/formsdocs/ui/IA12_3.pdf"

I have rarely seen this however furnished to an employee.

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 9

It should be noted that on the DOL website FAQ for employers re "Employer UI Fraud", consenting to ineligible requests for benefits is not specifically mentioned:

"The State Labor Department has a 24-hour toll-free hotline for those who wish to report employer UI fraud. Examples of employer UI fraud are:

• Paying “off the books” or “under the table” wages
• Intentional misclassification of workers as independent contractors
• State Unemployment Tax Act (SUTA) dumping – shifting workers between employer payrolls to improperly use a lower contribution rate"

So the question remains if the three items listed and later discussed are only examples, are there other examples, viz., consenting to ineligible requests for benefit.

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 8

Employers are also reminded to respond honestly to claim applications in the FAQ with respect to SIDES ( Developed through a strategic partnership between the U.S. Department of Labor and state Unemployment Insurance agencies, the State Information Data Exchange System (SIDES) and SIDES E-Response systems offer employers and third-party administrators (TPAs) – free of charge – a secure, electronic and nationally standardized format to respond to Unemployment Insurance information requests, reduce follow-up phone calls and streamline Unemployment Insurance response processes.):

"Q: What are the main causes of Unemployment Insurance overpayments?
A: The two largest causes of Unemployment Insurance overpayments are a lack of complete and accurate information when someone files a claim and people who work while collecting Unemployment Insurance benefits. Many Unemployment Insurance overpayments, which could be prevented by receiving timely and accurate information, negatively impact employers’ bottom lines.
|top|

Q: Are SIDES and SIDES E-Response expected to reduce Unemployment Insurance overpayments?

A: Yes. Both options have the potential to reduce Unemployment Insurance overpayments while improving the Unemployment Insurance information exchange process."

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 7

This is the new regulation which is applicable to this discussion:

"Section 1. Section 472.12 is repealed and a new Section 472.12 is added to read as follows:

472.12 Responding to Requests for Information and Employer Relief of Charges – Timely and Adequately Requirement for Responding

(a) A response to a notice of potential charges (hereinafter referred to as a claim notice) must be received by the Department of Labor within 10 calendar days of the date on the claim notice.

(b) All other requests for information pertaining to an unemployment insurance claim must be received by the Department of Labor within the number of days specified in the written (including electronic transmission) or verbal request for information.

(c) The Department of Labor may communicate its request for information to employers by letter; electronic communication; fax; telephone; through "SIDES," the State Information Data Exchange System (if agreed to by the employer); or other method of communication approved by the Department of Labor.

(d) The claim notice and all other requests for information referenced in subdivisions (a) and (b) shall be sent to the employer’s address, fax number, or email address of record on file with the Department of Labor, or an electronic account authorized by the Department of Labor. The Department of Labor may also request information by calling the employer’s business telephone number. Employers must notify the Department of Labor when any of the above contact information changes. Requests for information sent to the employer’s last known address, business telephone number, fax number, email address or authorized electronic account shall be deemed to have been sent to the correct address for the purposes of this section.

(e) Employers may respond to a claim notice and/or request for information by fax, electronic communication, SIDES, U.S. Postal Service, private delivery service, telephone (if the request for information required a telephone response), or other method of communication approved by the Department of Labor. An employer’s response to the Department of Labor shall be deemed to have been received on the date indicated by the date stamp placed on incoming faxes by the Department of Labor’s fax machine, the date stamp on paper documents, or the date the electronic submission is received. If no fax or date stamp exists, the receipt date will be deemed to be two days prior to the date the document is entered in the Department’s imaging system. If the employer disputes the date a response was received by the Department of Labor, the burden shall be on the employer to provide proof that the response was timely. Proof may include, but is not limited to, a confirmation of delivery, a stamped receipt by an agent of the Commissioner, or an affidavit of personal service on the Commissioner or his/her agent.

(f) An employer’s response to a request for information must contain adequate information. To be considered adequate, the response must:

(1) specify the reason(s) for the separation, or other issue affecting the claimant’s eligibility or entitlement for benefits;

(2) answer, in good faith, all questions in detail; and

(3) provide all relevant information and documentation for the Department of Labor to render a correct determination regarding the claimant’s eligibility or entitlement for benefits.

(g) If the Commissioner of Labor determines that overpaymentsoverpayments, except in accordance with subdivisions (h), (i) and (j). The employer shall not be relieved of charges for each
week that an overpayment is made, through the date that the Department of Labor makes a determination that the claimant is no longer eligible for or entitled to benefits or makes a determination that results in a reduction of benefits.

(h) An employer shall be relieved of charges imposed in subdivision (g) for the first instance that the employer or its agent fails to provide timely or adequate information, if the employer provides good cause for such failure. Good cause shall include any significant event that the employer could not reasonably have anticipated which affects the employer’s ability to respond timely to requests for information, as determined by the Commissioner. After the first instance of failing to provide timely and adequate information, the employer shall only be relieved of charges for a subsequent failure in accordance with the provisions of subdivisions (i) and (j) below.

(i) An employer may be relieved of charges if the charges were due to an error by the Department of Labor.

(j) An employer may be relieved of charges if they were unable to respond in a timely manner due to a disaster emergency as declared by the Governor of their State or the President of the United States."