As a follow up to the discussion on yesterday's blog, here is a sample case as to how the Appellate Division, 3rd Department is treating claims by certain government employees:
"In the Matter of the Claim of BRIDING NEWELL, Respondent. COUNTY OF NASSAU, Appellant; COMMISSIONER OF LABOR, Respondent. 9 A.D.3d 559, 779 N.Y.S.2d 287
(Appellate Division of the Supreme Court of the State of New York, Third Department July 1, 2004)
Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 27, 2003, which ruled that claimant was eligible to receive unemployment insurance benefits because she was not employed in a major nontenured policymaking or advisory position within the meaning of Labor Law § 565 (2) (e).
KANE, J.
In 1998, claimant was appointed Acting Commissioner of Drug and Alcohol Addiction for Nassau County (hereinafter the employer). In 2000, the County Legislature confirmed her appointment as Commissioner. After claimant stopped working in that capacity in December 2001, she applied for unemployment insurance benefits. The Department of Labor found, among other things, that claimant was ineligible to file a valid original claim because her base period of employment entailed work "in a major nontenured policymaking or advisory position," which was excluded under Labor Law § 565 (2) (e). Following a hearing, the Administrative Law Judge disagreed and found claimant eligible to receive benefits. The decision was upheld by the Unemployment Insurance Appeal Board, resulting in this appeal by the employer.
Because claimant rendered services for a governmental entity "in a major nontenured policymaking or advisory position" (Labor Law § 565 [2] [e]), we reverse. It is conceded that the employer is a governmental entity and claimant's position as its Commissioner of Drug and Alcohol Addiction was nontenured. The employer's charter delineated the powers and duties of the Department of Drug and Alcohol Addiction, presumably to be carried out by its Commissioner, which included "[d]evelop[ing] and administer[ing] effective policies and programs for the prevention, control and treatment of alcoholism and drug abuse and addiction, and . . . mak[ing] appropriate recommendations to the County Executive" and legislative body. This description attests to the policymaking and advisory nature of the position (see Matter of Franconeri [New York City Dept. of Personnel — Hudacs], 190 AD2d 970, 971 [1993]). Because the position's duties are defined by the charter, claimant was bound by law to carry them out when she accepted the position as Commissioner of a 260-person department. Claimant's contention that she did not make any policy or offer any advice to the executive or Legislature begs the question. The charter defines the responsibilities of the individual rendering services in such a "position," and claimant's failure to discharge her job duties does not change the nature of the Commissioner position.
The charter required claimant to "make appropriate recommendations" on behalf of the department. Whether her recommendations were heeded is irrelevant; an advisor makes recommendations which may be followed or rejected by the ultimate decisionmaker (cf. Matter of Le Porte [New York City Dept. of Personnel — Hartnett], 142 AD2d 866, 867 [1988], lv denied 73 NY2d 705 [1989]). It is likewise irrelevant that her decisions were subject to final approval by the County Executive (compare Matter of Franconeri [New York City Dept. of Personnel — Hudacs], supra at 971); to hold otherwise would limit the class of policymaking and advisory positions to only the highest level decisionmaker in each municipality. Based on the charter, claimant's position, as a matter of law, was a "policymaking or advisory position" encompassed by Labor Law § 565 (2) (e). Thus, the Board's determination to the contrary is irrational, and claimant was not entitled to unemployment insurance benefits.
Cardona, P.J., Mercure and Carpinello, JJ., concur.
Ordered that the decision is reversed, on the law, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision."
Thursday, May 20, 2010
Wednesday, May 19, 2010
UNEMPLOYMENT INSURANCE - GOVERNMENT EMPLOYEES
A recent consultation brought up the issue - are government officials and employees entitled to Unemployment Insurance benefits. Let's first look at the statute from the Unemployment Insurance Law:
"Sec. 565. Governmental entities. 1. Definition. A governmental entity shall mean the state of New York, municipal corporations and other governmental subdivision and any instrumentality of one or more of the foregoing.
2. Exclusions. In addition to services not included pursuant to the provisions of section five hundred eleven of this article, the term "employment" does not include services rendered for a governmental entity by:
(a) an elected official;
(b) a member of a legislative body or of the judiciary;
(c) a member of the state national guard or air national guard, except a person who renders such services as a regular state employee;
(d) a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(e) a person in a major nontenured policymaking or advisory position;
(f) a person in a policymaking or advisory position, the duties of which ordinarily do not require more than eight hours per week to perform; and
(g) an inmate of a custodial or penal institution.
3. Coverage.A governmental entity shall be liable for contributions under this article unless it becomes liable for payments in lieu of contributions.
4. Election of payments in lieu of contributions.A governmental entity or a group of such entities liable for contribution under this article may elect to become liable for payments in lieu of contributions as of the first day of any calendar year by filing with the commissioner a written notice to this effect before the beginning of such year or, if the governmental entity was not liable in the preceding calendar year, by filing the notice not later than thirty days after the end of the calendar quarter in which it first became liable. The commissioner may for good cause shown extend the time for the filing of such notice.
5. Obligation upon election.(a) A governmental entity which has elected to become liable for payments in lieu of contributions shall pay into the fund an amount equal to the amount of benefits paid to claimants and charged to its employer`s account in accordance with the provisions of paragraph (e) of subdivision one of section five hundred eighty-one of this article on the basis of remuneration paid on or after the date on which such liability became effective. The amount of payments so required shall be determined by the commissioner as soon as practicable after the end of each calendar quarter or any other period. Such amount shall be payable quarterly or at such times and in such manner as the commissioner shall prescribe and, when paid, the employer`s account of the governmental entity shall be discharged accordingly.
Paragraph (a) as amended by L. 1998, Ch. 589, effective April 1, 1999.
(b) If governmental entities elect payments in lieu of contributions as a group, the members of the group shall be severally and jointly liable for payments of amounts equal to the amounts of benefits paid to claimants and charged to the employer`s accounts of all members of the group. The commissioner may prescribe conditions and methods for such group elections and for the discharge of the obligations and responsibilities of the group and its members.
6. Termination of election. (a) A governmental entity may terminate its election to become liable for payments in lieu of contributions as of the first day of any calendar year by filing a written notice to this effect with the commissioner before the beginning of such year.
(b) The commissioner may cancel at any time the election of a governmental entity which has failed to make any of the payments required hereunder within thirty days after the commissioner has notified it of the liability for and the amount of such payment. Such cancellation shall remain in force and effect until the governmental entity files a new notice of election in accordance with the provisions of subdivision four of this section after having satisfied conditions and requirements prescribed by the commissioner for this purpose.
(c) If such election is terminated by a governmental entity or cancelled by the commissioner, the governmental entity shall remain liable for payments in lieu of contributions with respect to all benefits charged to its account on the basis of remuneration paid before the date on which such termination or cancellation took effect.
Paragraph (c) as amended by L. 1998, Ch. 589, effective April 1, 1999.
7. Joint accounts.Any two or more governmental entities may form a joint account by complying with rules and regulations prescribed by the commissioner for the establishment, maintenance and dissolution of such accounts.
8. Assessment and collection of payments in lieu of contributions. The amount of payments in lieu of contributions due hereunder from governmental entities but not paid upon notice shall be assessed and collected by the commissioner, together with interest and penalties, if any, in the same manner and subject to the same conditions under which contributions due from other employers may be assessed and collected under provisions of this article.
9. Special provisions applicable to the state. (a) In lieu of contributions, the state of New York shall pay into the fund an amount equivalent to the amount of benefits paid to claimants and charged to the account of the state of New York in accordance with the provisions of paragraph (e) of subdivision one of section five hundred eighty-one of this article.
(b) The amount of payments into the fund required shall be ascertained by the commissioner as soon as practicable after the end of each calendar year or any other shorter period and shall be payable from the general funds of the state, except if a claimant to whom benefits were paid remuneration by the state of New York during his base period from a special or administrative fund provided for by law, other than an income fund of the state university or the mental hygiene services fund, the payment into the fund shall be made from such special or administrative fund with the approval of the director of the budget. Such payments by the state shall be made at such times and in such manner as the commissioner, with the approval of the director of the budget, may determine and prescribe.
§565 as added by L. 1977, Ch. 675, effective January 1, 1978."
"Sec. 565. Governmental entities. 1. Definition. A governmental entity shall mean the state of New York, municipal corporations and other governmental subdivision and any instrumentality of one or more of the foregoing.
2. Exclusions. In addition to services not included pursuant to the provisions of section five hundred eleven of this article, the term "employment" does not include services rendered for a governmental entity by:
(a) an elected official;
(b) a member of a legislative body or of the judiciary;
(c) a member of the state national guard or air national guard, except a person who renders such services as a regular state employee;
(d) a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency;
(e) a person in a major nontenured policymaking or advisory position;
(f) a person in a policymaking or advisory position, the duties of which ordinarily do not require more than eight hours per week to perform; and
(g) an inmate of a custodial or penal institution.
3. Coverage.A governmental entity shall be liable for contributions under this article unless it becomes liable for payments in lieu of contributions.
4. Election of payments in lieu of contributions.A governmental entity or a group of such entities liable for contribution under this article may elect to become liable for payments in lieu of contributions as of the first day of any calendar year by filing with the commissioner a written notice to this effect before the beginning of such year or, if the governmental entity was not liable in the preceding calendar year, by filing the notice not later than thirty days after the end of the calendar quarter in which it first became liable. The commissioner may for good cause shown extend the time for the filing of such notice.
5. Obligation upon election.(a) A governmental entity which has elected to become liable for payments in lieu of contributions shall pay into the fund an amount equal to the amount of benefits paid to claimants and charged to its employer`s account in accordance with the provisions of paragraph (e) of subdivision one of section five hundred eighty-one of this article on the basis of remuneration paid on or after the date on which such liability became effective. The amount of payments so required shall be determined by the commissioner as soon as practicable after the end of each calendar quarter or any other period. Such amount shall be payable quarterly or at such times and in such manner as the commissioner shall prescribe and, when paid, the employer`s account of the governmental entity shall be discharged accordingly.
Paragraph (a) as amended by L. 1998, Ch. 589, effective April 1, 1999.
(b) If governmental entities elect payments in lieu of contributions as a group, the members of the group shall be severally and jointly liable for payments of amounts equal to the amounts of benefits paid to claimants and charged to the employer`s accounts of all members of the group. The commissioner may prescribe conditions and methods for such group elections and for the discharge of the obligations and responsibilities of the group and its members.
6. Termination of election. (a) A governmental entity may terminate its election to become liable for payments in lieu of contributions as of the first day of any calendar year by filing a written notice to this effect with the commissioner before the beginning of such year.
(b) The commissioner may cancel at any time the election of a governmental entity which has failed to make any of the payments required hereunder within thirty days after the commissioner has notified it of the liability for and the amount of such payment. Such cancellation shall remain in force and effect until the governmental entity files a new notice of election in accordance with the provisions of subdivision four of this section after having satisfied conditions and requirements prescribed by the commissioner for this purpose.
(c) If such election is terminated by a governmental entity or cancelled by the commissioner, the governmental entity shall remain liable for payments in lieu of contributions with respect to all benefits charged to its account on the basis of remuneration paid before the date on which such termination or cancellation took effect.
Paragraph (c) as amended by L. 1998, Ch. 589, effective April 1, 1999.
7. Joint accounts.Any two or more governmental entities may form a joint account by complying with rules and regulations prescribed by the commissioner for the establishment, maintenance and dissolution of such accounts.
8. Assessment and collection of payments in lieu of contributions. The amount of payments in lieu of contributions due hereunder from governmental entities but not paid upon notice shall be assessed and collected by the commissioner, together with interest and penalties, if any, in the same manner and subject to the same conditions under which contributions due from other employers may be assessed and collected under provisions of this article.
9. Special provisions applicable to the state. (a) In lieu of contributions, the state of New York shall pay into the fund an amount equivalent to the amount of benefits paid to claimants and charged to the account of the state of New York in accordance with the provisions of paragraph (e) of subdivision one of section five hundred eighty-one of this article.
(b) The amount of payments into the fund required shall be ascertained by the commissioner as soon as practicable after the end of each calendar year or any other shorter period and shall be payable from the general funds of the state, except if a claimant to whom benefits were paid remuneration by the state of New York during his base period from a special or administrative fund provided for by law, other than an income fund of the state university or the mental hygiene services fund, the payment into the fund shall be made from such special or administrative fund with the approval of the director of the budget. Such payments by the state shall be made at such times and in such manner as the commissioner, with the approval of the director of the budget, may determine and prescribe.
§565 as added by L. 1977, Ch. 675, effective January 1, 1978."
Tuesday, May 18, 2010
UNEMPLOYMENT INSURANCE - REOPENING OF HEARING
A recent consultation revealed Claimant quit the job and the DOL found no compelling reason and thus denied benefits. In fact, Claimant quit the job because Claimant did not like the job. Claimant requested a hearing and the Employer defaulted. At the hearing, Claimant testified that Claimant quit for other reasons that did in fact exist but were not the primary reasons for quitting. The Administrative Law Judge (ALJ) held for the Claimant. The Employer then applied to reopen the hearing and a new hearing is being held where Employer is being represented by counsel. Claimant consults with Claimant's own counsel for the first time and is advised that Employer testimony and cross-examination of the Claimant may be a problem as a new hearing will bring in new evidence that the ALJ did not hear at the first hearing. A Claimant should not assume that since the Claimant was able to get an ALJ to overturn a DOL determination after a default by the Employer that the ALJ will maintain the earlier decision favorable to the Claimant. New evidence will be introduced to refute the allegations of the Claimant and the ALJ must consider the new evidence. This consultation revealed that if the Employer testified, evidence would be introduced, directly and through cross-examination, that Claimant may not be entitled to benefits.
Monday, May 17, 2010
DIVORCE AND FAMILY LAW ISSUES
Recently, I posted a discussion on the need for counseling and when it comes to matrimonial issues. There has also been a thread or discussion on a Family Law Professional Group on LinkedIn entitled "Should we make it easier to divorce? Should we make it harder to marry?" I would like to repeat a post recently made by a New Zealand attorney Stephen G Anderson who describes himself as a "Non-adversarial family lawyer":
""Easier", of course, depends on your jurisdiction. In NZ there is a wait of at least 2 years. In England we have options based on either periods of separation or fault. Nobody in their right mind believes that only one person is at fault in anything other than the most rare cases, yet fault - adultery and unreasonable behaviour - are most often cited because they allow a dissolution process to start immediately. Is this good? Probably not always, and particularly not when the other person has no idea it's coming. But managed sensitively and non-adversarially, which is possible even with behaviour being alleged, it allows the couple to start the end process. Making them wait two years can increase tension and could make the eventual discussions about children and money even more adversarial. So I'm in favour of allowing people to start a divorce once they've come to the conclusion their marriage has broken down irretrivably.
Whether the outcome is a good one or a bad one will largely depend on how you go about it. Choose an old-fashioned, traditional family lawyer, who isn't versed in non-adversarial techniques and who doesn't understand and appreciate (or chooses to exploit) the emotional dynamics involved - often referred to admiringly by those who don't understand as a Rottweiler - and you may end up with a bad deal, with damaged kids and huge legal bills. Visit a mediator or collaborative lawyer to begin with - pros who problem-solve rather than seek to attribute blame - and the outcome is likely to be much better for the couple and their kids. And it won't cost so much. Mediation costs about 20% of cost of typical case settled by lawyers and with a much greater chance of court hearings avoided..
So making divorce easier coupled with better information about mediation, counselling and collaboration may help bring an unhappy marriage to an end sooner, with a better outcome and at a lower cost to the family emotions and purse.
Making divorce more difficult, as it was in England up to the 1970's, will cause greater emotional upset to the couple as individuals and to their children, frineds, family and work colleagues, and lead to much larger legal costs, in my view.
Making it harder to marry? Not sure if arranged marriages make it harder to marry, so perhaps their not a good comparison, but I cannot see that there should be any mandatory tests or counselling any more than for any other contract. Provding people with information before they decide to marry is a good idea, it's just finding a way to deliver it that is tricky.
So I'm not really in favour of making it more difficult to marry, and am in favour of "easier" divorces. But many of the problems surrounding marriage breakdown would be reduced if lawyers developed more family/child focussed practices, promoting counselling and therapy alongside mediation and collaboration - and if they refused to engage in adversarial divorce techniques."
""Easier", of course, depends on your jurisdiction. In NZ there is a wait of at least 2 years. In England we have options based on either periods of separation or fault. Nobody in their right mind believes that only one person is at fault in anything other than the most rare cases, yet fault - adultery and unreasonable behaviour - are most often cited because they allow a dissolution process to start immediately. Is this good? Probably not always, and particularly not when the other person has no idea it's coming. But managed sensitively and non-adversarially, which is possible even with behaviour being alleged, it allows the couple to start the end process. Making them wait two years can increase tension and could make the eventual discussions about children and money even more adversarial. So I'm in favour of allowing people to start a divorce once they've come to the conclusion their marriage has broken down irretrivably.
Whether the outcome is a good one or a bad one will largely depend on how you go about it. Choose an old-fashioned, traditional family lawyer, who isn't versed in non-adversarial techniques and who doesn't understand and appreciate (or chooses to exploit) the emotional dynamics involved - often referred to admiringly by those who don't understand as a Rottweiler - and you may end up with a bad deal, with damaged kids and huge legal bills. Visit a mediator or collaborative lawyer to begin with - pros who problem-solve rather than seek to attribute blame - and the outcome is likely to be much better for the couple and their kids. And it won't cost so much. Mediation costs about 20% of cost of typical case settled by lawyers and with a much greater chance of court hearings avoided..
So making divorce easier coupled with better information about mediation, counselling and collaboration may help bring an unhappy marriage to an end sooner, with a better outcome and at a lower cost to the family emotions and purse.
Making divorce more difficult, as it was in England up to the 1970's, will cause greater emotional upset to the couple as individuals and to their children, frineds, family and work colleagues, and lead to much larger legal costs, in my view.
Making it harder to marry? Not sure if arranged marriages make it harder to marry, so perhaps their not a good comparison, but I cannot see that there should be any mandatory tests or counselling any more than for any other contract. Provding people with information before they decide to marry is a good idea, it's just finding a way to deliver it that is tricky.
So I'm not really in favour of making it more difficult to marry, and am in favour of "easier" divorces. But many of the problems surrounding marriage breakdown would be reduced if lawyers developed more family/child focussed practices, promoting counselling and therapy alongside mediation and collaboration - and if they refused to engage in adversarial divorce techniques."
Sunday, May 16, 2010
MORTGAGE FORECLOSURE - SETTLEMENT CONFERNCES ON MAY 19
On May 19, I will be a volunteer lawyer at Nassau Supreme Court for the Nassau County Bar Association for Mortgage Settlemen Conferences. The conferences I will be at start at 11am although I suggest you arrive by 10:45 am and check in with the clerk. Volunteer Lawyers are in the back of the courtroom - we are sitting at a large table at the back wall. Basically, this is will will happen as per the NCBA checklist:
"Residential Foreclosure Conference Part Checklist
1. Introduction: introduce yourself to the homeowner. Make it clear that you are not his/her attorney, but you are a volunteer attorney authorized to advise them and assist them with the foreclosure conference proceeding.
2. Housing/Legal counseling: Encourage the homeowner to seek legal counseling and housing counseling through one of the pro bono organizations.
3. Housing information: Ask the homeowner about the property: its location, who lives there and how long he/she has lived in the home. The financial crisis has hit the various areas of each county differently, and some areas have much greater depreciation than others. Further, the length of time in the home is a relevant factor, particularly in addressing whether there may be fraud involved in the mortgage. Ask the homeowner whether he/she resides in the property and whether it is a 1-4 family home.
4. Financial information: Ask the homeowner if he/she has been in contact with the lender, whether he/she has prepared a financial packet for the lender, whether he/she is in a loan modification or HAMP modification. Ask the homeowner the reason for the default in general terms, because this may affect the type of legal/housing counseling the person should obtain.
5. Legal information: Ask the homeowner if he/she received a 90-day notice, the Summons/Complaint or any other court documents besides the notice of foreclosure conference. Ask the homeowner if he/she has filed an Answer or responded to any motion practice. Encourage the homeowner to obtain legal advice as to whether he/she should file an Answer or oppose motions filed by the lender. Note: Appearance in the foreclosure conference does not generally constitute a waiver of defenses (see each county’s local rules) but filing motions papers could.
6. Foreclosure conference part: Explain to the homeowner how the conference part will proceed. Explain who the referee/JHO is and their role in the process; the lender’s attorney, and the documents that you should expect to receive from the lender at the conference. Organize the homeowner’s paperwork (if any was brought to the conference) so that the homeowner can explain to the referee/JHO his/her arguments and requests for the conference. Write down notes for the homeowner that would assist them in representing him/herself in the conference.
7. Post-conference discussion: Explain to the homeowner what happened at the conference. Again advise and encourage them to seek legal/housing counseling and to follow through with any directives given by the referee/JHO. Organize the homeowner’s necessary information into a one-page checklist, such as Courtroom number, referee/JHO name, lender’s name and representative, phone numbers to contact, next conference date, if any, and give them a checklist of what the homeowner is expected to do before the next conference."
"Residential Foreclosure Conference Part Checklist
1. Introduction: introduce yourself to the homeowner. Make it clear that you are not his/her attorney, but you are a volunteer attorney authorized to advise them and assist them with the foreclosure conference proceeding.
2. Housing/Legal counseling: Encourage the homeowner to seek legal counseling and housing counseling through one of the pro bono organizations.
3. Housing information: Ask the homeowner about the property: its location, who lives there and how long he/she has lived in the home. The financial crisis has hit the various areas of each county differently, and some areas have much greater depreciation than others. Further, the length of time in the home is a relevant factor, particularly in addressing whether there may be fraud involved in the mortgage. Ask the homeowner whether he/she resides in the property and whether it is a 1-4 family home.
4. Financial information: Ask the homeowner if he/she has been in contact with the lender, whether he/she has prepared a financial packet for the lender, whether he/she is in a loan modification or HAMP modification. Ask the homeowner the reason for the default in general terms, because this may affect the type of legal/housing counseling the person should obtain.
5. Legal information: Ask the homeowner if he/she received a 90-day notice, the Summons/Complaint or any other court documents besides the notice of foreclosure conference. Ask the homeowner if he/she has filed an Answer or responded to any motion practice. Encourage the homeowner to obtain legal advice as to whether he/she should file an Answer or oppose motions filed by the lender. Note: Appearance in the foreclosure conference does not generally constitute a waiver of defenses (see each county’s local rules) but filing motions papers could.
6. Foreclosure conference part: Explain to the homeowner how the conference part will proceed. Explain who the referee/JHO is and their role in the process; the lender’s attorney, and the documents that you should expect to receive from the lender at the conference. Organize the homeowner’s paperwork (if any was brought to the conference) so that the homeowner can explain to the referee/JHO his/her arguments and requests for the conference. Write down notes for the homeowner that would assist them in representing him/herself in the conference.
7. Post-conference discussion: Explain to the homeowner what happened at the conference. Again advise and encourage them to seek legal/housing counseling and to follow through with any directives given by the referee/JHO. Organize the homeowner’s necessary information into a one-page checklist, such as Courtroom number, referee/JHO name, lender’s name and representative, phone numbers to contact, next conference date, if any, and give them a checklist of what the homeowner is expected to do before the next conference."
Saturday, May 15, 2010
LITIGATION AND MENTAL HEALTH
I believe more attorneys are becoming aware of how legal issues may affect the mental health of clients. The Nassau County Bar Association is holding a seminar and this is from their email:
"Clients in Trouble: What Attorneys Need to Know About Trauma
Another Free Member Benefit brought to you by Wellness Wednesdays
Tuesday, May 18 12:30—2 p.m. at NCBA.
Learn how to better help your clients who are in the middle of a crisis situation, such as a criminal arrest, divorce, probate, personal injury, etc. At this seminar, attorneys will learn how to:
1. Identify when people need an attorney.
2. Explore the dynamics of crisis, trauma and loss and how they effect behavior and cognitive functioning.
3. Validate the impact on the attorney and the client-attorney relationship. It is comparable to a therapeutic relationship where therapists become drained working with depressed or acting-out clients.
4. Develop effective structures and strategies to help both client and attorney, such as clear contracts, clear limits, active listening, proactive education and normalization of issues for clients, and coping strategies for attorneys.
Guest Speaker: Sandra R. Wolkoff, LCSW North Shore Child & Family Guidance Center
Free for all NCBA Members!
RSVP is Required: Stephanie Pagano, 516-747-4070 or spagano@nassaubar.org. Optional Buffet lunch will be available"
"Clients in Trouble: What Attorneys Need to Know About Trauma
Another Free Member Benefit brought to you by Wellness Wednesdays
Tuesday, May 18 12:30—2 p.m. at NCBA.
Learn how to better help your clients who are in the middle of a crisis situation, such as a criminal arrest, divorce, probate, personal injury, etc. At this seminar, attorneys will learn how to:
1. Identify when people need an attorney.
2. Explore the dynamics of crisis, trauma and loss and how they effect behavior and cognitive functioning.
3. Validate the impact on the attorney and the client-attorney relationship. It is comparable to a therapeutic relationship where therapists become drained working with depressed or acting-out clients.
4. Develop effective structures and strategies to help both client and attorney, such as clear contracts, clear limits, active listening, proactive education and normalization of issues for clients, and coping strategies for attorneys.
Guest Speaker: Sandra R. Wolkoff, LCSW North Shore Child & Family Guidance Center
Free for all NCBA Members!
RSVP is Required: Stephanie Pagano, 516-747-4070 or spagano@nassaubar.org. Optional Buffet lunch will be available"
Friday, May 14, 2010
DIVORCE - FLIGHT EQUALS FIGHT
A recent consultation revealed that a long term marriage was ending and one spouse wanted to leave the other spouse. A minor child was involved and would leave with the departing spouse. In this matter, there were no incidents of domestic violence nor any fear of it. Incidents involving domestic violence require one approach but in my experience, where there is no domestic violence, a spouse's decision to flee the marriage may lead to further complications and I advised the spouse to first seek counseling before any decision is made. Here is an article courtesy of ABC News and even though it is about a high profile divorce, the suggestion of counseling I believe applies to all:
"Shrinks to Gosselins: Try Divorce Counseling, Goal Is to 'Stop Killing the Children in the War,' Foster Business Relationship, By SUSAN DONALDSON JAMES
June 25, 2009— When reality-TV star Jon Gosselin said he was throwing in the towel without marriage counseling, his wife Kate and their 10.6 million television viewers were not the only ones aghast.
Psychologists suggested that the couple needed divorce counseling -- therapy not to save the train-wreck marriage, but to establish a better relationship going forward, as they continue to raise their eight children.
"There's a lot of sensationalism in these TV reality series and people throw out a lot of new techniques," said Jody Deluca, a clinical psychologist from Odessa, Fla. "But this couple really needs to renegotiate their relationship."
"Because of the children, they have to start from scratch with new rules to abide by, whether it's remarriage or divorce."
Kate Gosselin has said to People magazine that it was her husband of 10 years who asked for the divorce. The show, which is in its fifth season, has been a "portrait of an American family crumbling," People deputy managing editor Peter Castro told ABC.
Divorce Counseling Is New Concept
Divorce counseling or therapy is a relatively new concept in the mental health field. With one in two marriages ending in divorce, counseling through the "hostility and anger" is critical, Deluca said.
"You are talking about emotional chaos," she told ABCNews.com.
In the past, many couples have weathered that storm without help.
Matthew Bailey of Medina, Ohio, divorced his wife after he discovered she had cheated on him with someone from work.
"I tried counseling once but then decided to suck it up and not be one of those guys who takes a woman back after that," he said. "After almost a year, I haven't needed any counseling on my own.
"All you have to do is stop being angry and you don't need therapy," he said. "Life is what you make of it. Suck it up."
But psychologists say divorce counseling helps couples strengthen their communications and negotiation skills.
And when there are children involved, the process also helps them accept the end of the marriage, avoiding self-blame, guilt and anger.
Divorce Counseling Sets Rules
Divorce counseling can include issues related to alcohol and drugs, sleep, eating habits, hygiene and grooming, decision making, job performance and financial management.
Most often, Deluca helps couple reinvigorate and repair their marriages, but when divorce is inevitable, she helps them set down "rules of engagement."
"Many times there has been a breakdown in communication," she said. "They must be on the same team until the divorce is final, especially if there are children involved."
As in marital therapy, counselors work on behavior-management techniques. Deluca begins by having the couple write down the pros and cons of their marriage and reading them aloud.
"I have them agree to disagree," Deluca said. "We come up with rules for arguing. He says, 'Under no circumstances will you call me a wimp.' She says, 'It's not acceptable to come home after 9 p.m."
Couples must adhere to no naming-calling and "time-outs" when arguments get explosive.
Don't Let Kids Be in the Battlefield
"Whoever is more emotionally in control leaves the war field," she said. "Some couples give a signal that's unique to the couple: 'It's getting out of hand, we are in the middle of a war.' Someone has to be in control enough to walk away."
Don't fight in front the children: "They will carry this emotional memory for the rest of their lives," she said. Don't drag in outsiders like family and friends: "It makes it worse," she said.
But some couples are skeptical of counseling once the relationship fails.
Suzanne Garnmeister of Greenville, S.C., noticed her husband of eight years beginning to act "increasingly odd" in the summer of 1999.
"Normally even-tempered, he became angry and volatile," she told ABCNews.com.
Garnmeister was getting her college degree and couldn't pin down what was going on, but he soon asked for a divorce.
"I was completely devastated, and requested counseling, which he agreed to," she said. "However, when we were in counseling, he was never honest. He was hostile and resentful, but never admitted that he'd had an affair."
Therapy Only Works With Honesty
Two years later, she found about the affair when she found a letter he had written to his girlfriend.
"When I saw how Jon Gosselin was acting, it reminded me of how my ex acted at that time," she said. "In order to deal with the guilt he was feeling, he made me the 'bad guy' to justify his actions.
"I don't think counseling works unless both parties are honest," she said. Ken Warner of Florence, N.J., tried marriage counseling with his first wife, even though he had made up his mind about divorce.
"We had one child and that played a big part of why I went," he told ABCNews.com. "My experience there was that it wasn't going to help; I had already made my mind up and wanted out of the marriage. The counselor couldn't change my mind. What could they possibly say?"
The couple had multiple pressures, not owning a home and renting from Warner's mother. His brother was also living with the couple.
"My wife couldn't stand him, but she was a real tough person and, at the end, I had enough of her too, she always had to be in charge, or she was a yeller." he said. "No counselor was going to change that."
But therapists say that the "crisis" of divorce is an opportunity for learning and personal growth, especially because an estimated 70 to 80 percent of those who divorce will remarry.
Such was the case with Washington, D.C., divorce lawyer Marjorie Just, 41, who sought counseling to cope with her own divorce eight years ago and today is remarried.
"In the aftermath of my separation and divorce it was incredibly healthy not only for venting, but also examining what I did to contribute to the relationship and what I was looking for in my marriage," she told ABCNews.com.
Just has been successful the second time around, even though 60 percent of all second marriages fail.
Divorce therapy can be difficult, but "some people are craving it," said Just, author of "Divorce Decisions."
"They don't want to be at war with the person who they loved and built a home with for years," she told ABCNews.com. "Not everyone is consumed by hatred by the end of the marriage."
She recommends counseling for all those going through a divorce, especially parents. "The marriage may be ending, but the relationship doesn't," Just said.
Today, the concept of divorce therapy has moved into the legal arena in a mediation process called "collaborative divorces."
All parties sign an agreement at the onset. The lawyers consent not to litigate against each other. They also agree that if the collaborative process fails, neither lawyer can represent them in court.
"The incentive for the clients is to have to come up with another retainer," Just said. "The incentive for the lawyers is if they can't resolve it, they've lost a client."
The goal is to allow couples to "transform" themselves out of conflict and to "move on and have a better life," said Roberta Eisen, whose Washington, D.C., counseling practice focuses on restructuring families.
Divorce therapy is designed "so we don't kill the children in the war," Eisen told ABCNews.com.
Sadly, she said, the Gosselins have made divorce "chic."
What counseling and, in some cases, collaborative divorce can do is "help them shift into respectful business-like relationships, to transition into the business of parenting children."
About 25 percent of couples "get it," Eisen said.
"But there are 25 percent down at the bottom who are really stuck in the mud and half of them have serious pathologies or other reasons that are holding them there," she said. "They are not willing to do the work."
"We aim for the 50 percent in the middle," Eisen said. "They could go either way -- stick in the trenches or rise above their own issues."
Copyright © 2010 ABC News Internet Ventures"
"Shrinks to Gosselins: Try Divorce Counseling, Goal Is to 'Stop Killing the Children in the War,' Foster Business Relationship, By SUSAN DONALDSON JAMES
June 25, 2009— When reality-TV star Jon Gosselin said he was throwing in the towel without marriage counseling, his wife Kate and their 10.6 million television viewers were not the only ones aghast.
Psychologists suggested that the couple needed divorce counseling -- therapy not to save the train-wreck marriage, but to establish a better relationship going forward, as they continue to raise their eight children.
"There's a lot of sensationalism in these TV reality series and people throw out a lot of new techniques," said Jody Deluca, a clinical psychologist from Odessa, Fla. "But this couple really needs to renegotiate their relationship."
"Because of the children, they have to start from scratch with new rules to abide by, whether it's remarriage or divorce."
Kate Gosselin has said to People magazine that it was her husband of 10 years who asked for the divorce. The show, which is in its fifth season, has been a "portrait of an American family crumbling," People deputy managing editor Peter Castro told ABC.
Divorce Counseling Is New Concept
Divorce counseling or therapy is a relatively new concept in the mental health field. With one in two marriages ending in divorce, counseling through the "hostility and anger" is critical, Deluca said.
"You are talking about emotional chaos," she told ABCNews.com.
In the past, many couples have weathered that storm without help.
Matthew Bailey of Medina, Ohio, divorced his wife after he discovered she had cheated on him with someone from work.
"I tried counseling once but then decided to suck it up and not be one of those guys who takes a woman back after that," he said. "After almost a year, I haven't needed any counseling on my own.
"All you have to do is stop being angry and you don't need therapy," he said. "Life is what you make of it. Suck it up."
But psychologists say divorce counseling helps couples strengthen their communications and negotiation skills.
And when there are children involved, the process also helps them accept the end of the marriage, avoiding self-blame, guilt and anger.
Divorce Counseling Sets Rules
Divorce counseling can include issues related to alcohol and drugs, sleep, eating habits, hygiene and grooming, decision making, job performance and financial management.
Most often, Deluca helps couple reinvigorate and repair their marriages, but when divorce is inevitable, she helps them set down "rules of engagement."
"Many times there has been a breakdown in communication," she said. "They must be on the same team until the divorce is final, especially if there are children involved."
As in marital therapy, counselors work on behavior-management techniques. Deluca begins by having the couple write down the pros and cons of their marriage and reading them aloud.
"I have them agree to disagree," Deluca said. "We come up with rules for arguing. He says, 'Under no circumstances will you call me a wimp.' She says, 'It's not acceptable to come home after 9 p.m."
Couples must adhere to no naming-calling and "time-outs" when arguments get explosive.
Don't Let Kids Be in the Battlefield
"Whoever is more emotionally in control leaves the war field," she said. "Some couples give a signal that's unique to the couple: 'It's getting out of hand, we are in the middle of a war.' Someone has to be in control enough to walk away."
Don't fight in front the children: "They will carry this emotional memory for the rest of their lives," she said. Don't drag in outsiders like family and friends: "It makes it worse," she said.
But some couples are skeptical of counseling once the relationship fails.
Suzanne Garnmeister of Greenville, S.C., noticed her husband of eight years beginning to act "increasingly odd" in the summer of 1999.
"Normally even-tempered, he became angry and volatile," she told ABCNews.com.
Garnmeister was getting her college degree and couldn't pin down what was going on, but he soon asked for a divorce.
"I was completely devastated, and requested counseling, which he agreed to," she said. "However, when we were in counseling, he was never honest. He was hostile and resentful, but never admitted that he'd had an affair."
Therapy Only Works With Honesty
Two years later, she found about the affair when she found a letter he had written to his girlfriend.
"When I saw how Jon Gosselin was acting, it reminded me of how my ex acted at that time," she said. "In order to deal with the guilt he was feeling, he made me the 'bad guy' to justify his actions.
"I don't think counseling works unless both parties are honest," she said. Ken Warner of Florence, N.J., tried marriage counseling with his first wife, even though he had made up his mind about divorce.
"We had one child and that played a big part of why I went," he told ABCNews.com. "My experience there was that it wasn't going to help; I had already made my mind up and wanted out of the marriage. The counselor couldn't change my mind. What could they possibly say?"
The couple had multiple pressures, not owning a home and renting from Warner's mother. His brother was also living with the couple.
"My wife couldn't stand him, but she was a real tough person and, at the end, I had enough of her too, she always had to be in charge, or she was a yeller." he said. "No counselor was going to change that."
But therapists say that the "crisis" of divorce is an opportunity for learning and personal growth, especially because an estimated 70 to 80 percent of those who divorce will remarry.
Such was the case with Washington, D.C., divorce lawyer Marjorie Just, 41, who sought counseling to cope with her own divorce eight years ago and today is remarried.
"In the aftermath of my separation and divorce it was incredibly healthy not only for venting, but also examining what I did to contribute to the relationship and what I was looking for in my marriage," she told ABCNews.com.
Just has been successful the second time around, even though 60 percent of all second marriages fail.
Divorce therapy can be difficult, but "some people are craving it," said Just, author of "Divorce Decisions."
"They don't want to be at war with the person who they loved and built a home with for years," she told ABCNews.com. "Not everyone is consumed by hatred by the end of the marriage."
She recommends counseling for all those going through a divorce, especially parents. "The marriage may be ending, but the relationship doesn't," Just said.
Today, the concept of divorce therapy has moved into the legal arena in a mediation process called "collaborative divorces."
All parties sign an agreement at the onset. The lawyers consent not to litigate against each other. They also agree that if the collaborative process fails, neither lawyer can represent them in court.
"The incentive for the clients is to have to come up with another retainer," Just said. "The incentive for the lawyers is if they can't resolve it, they've lost a client."
The goal is to allow couples to "transform" themselves out of conflict and to "move on and have a better life," said Roberta Eisen, whose Washington, D.C., counseling practice focuses on restructuring families.
Divorce therapy is designed "so we don't kill the children in the war," Eisen told ABCNews.com.
Sadly, she said, the Gosselins have made divorce "chic."
What counseling and, in some cases, collaborative divorce can do is "help them shift into respectful business-like relationships, to transition into the business of parenting children."
About 25 percent of couples "get it," Eisen said.
"But there are 25 percent down at the bottom who are really stuck in the mud and half of them have serious pathologies or other reasons that are holding them there," she said. "They are not willing to do the work."
"We aim for the 50 percent in the middle," Eisen said. "They could go either way -- stick in the trenches or rise above their own issues."
Copyright © 2010 ABC News Internet Ventures"
Thursday, May 13, 2010
UNEMPLOYMENT INSURANCE - CRIMINAL PENALTIES
A recent consultation brought up this issue. This is from the DOL web site and it is in all bold:
"If you work while receiving benefits and do not report that employment, even if it is part-time work, you may be committing fraud. You must report all full-time and part-time employment to the Labor Department or you risk criminal penalties."
So if a Claimant does not report income when a Claimant should, what happens? First, let us look at the NYS Unemployment Insurance Law:
"Sec. 594. Reduction of benefits for false statement. A claimant who has wilfully made a false statement or representation to obtain any benefit under the provisions of this article shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense.
For the purpose of subdivision four of section five hundred ninety of this article, the claimant shall be deemed to have received benefits for such forfeited effective days.
The penalty provided in this section shall not be confined to a single benefit year but shall no longer apply in whole or in part after the expiration of two years from the date on which the offense was committed."
A claimant shall refund all moneys received because of such false statement or representation made by him."
What if the Claimant does not refund all moneys. The UI regulations are helpful:
"§ 470.4 Overpaid unemployment insurance benefits
The Commissioner of Labor shall, as provided for in section 18 of the State Finance Law, waive the assessment of interest and late charges on debts owed which occurred as a result of overpayment of unemployment insurance benefits.
§ 470.5 Setoff against unemployment insurance benefits
Established and outstanding overpaid unemployment insurance benefits shall be collected from a claimant's weekly benefit award as a setoff.
Priority of liquidation. In the event that more than one overpayment is established against an individual claimant, setoff amounts will be debited to such overpayments in chronological order.
Willful overpayment. A setoff of 100 percent of the weekly benefit amount will apply to one or more established and outstanding overpayments attributable to an individual claimant so long as at least one of such overpayments is determined to have been willful.
Non-willful overpayment. A setoff of 50 percent of the weekly benefit amount will apply to one or more established and outstanding overpayments attributable to an individual claimant so long as none of such overpayments are determined to have been willful"
But we must also look at another relevant section of the Unemployment Insurance Law:
"Sec. 630. Penalties. Any misdemeanor defined in this title shall be punishable by a fine of not more than five hundred dollars or imprisonment for not more than one year, or both. The penalties and misdemeanors imposed by this title are in addition to those otherwise prescribed in this entire article."
That section under the Unemployment Insurance Law will lead us to the following:
"Sec. 632. False statements or representations.1. Benefits and contributions. Any person shall be guilty of a misdemeanor who wilfully makes a false statement or representation
(a) with the effect of obtaining, either for himself or for any other person, any benefit or payment under the provision of this article or of any similar law of another state or the United States in regard to which this state acted as agent pursuant to an arrangement authorized by this article...."
But other statutes are also involved. In June of 2009, 30 New York State employees from Albany to New York City were arrested and charged with unemployment fraud after they allegedly claimed unemployment benefits while actually working for the state. According to Attorney General Andrew Cuomo, the thirty defendants were charged with some variation of the crimes of Grand Larceny in the Third and Fourth Degrees, Falsifying Business Records in the First Degree, and Petit Larceny. Thus, felony charges can be involved. And if this can happen to state employees, can it happen in the private sector? Here is a press release from the Department of Labor in January of this year:
"New York State Cracks Down on Unemployment Insurance Fraud in New York City
Department of Labor Announces 2009 Fraud Investigation Results
Albany, NY (January 13, 2010) - State Labor Commissioner M. Patricia Smith today announced 159 arrests in New York City during 2009 for the theft of $800,112 from New York State's Unemployment Insurance (UI) trust fund. The State Labor Department worked with district attorneys and other law enforcement agencies to bring these people to justice. Most of those arrested had collected UI benefits while earning a paycheck. Governor David A. Paterson said, "One of the pitfalls of having so many New Yorkers collecting UI is that there will always be somebody who will try to take advantage of the system. Fortunately, we're doing a great job to keep on top of fraud and the results speak for themselves. In fact, New York's stepped-up crackdown on Unemployment Insurance fraud saved businesses large and small more than $35 million last year alone."
"It is nothing short of shameful to think that people would steal from a fund designed to help families put food on the table, gas in their cars and clothes on the backs of their children," said Commissioner Smith. "Governor Paterson has directed the Labor Department and its partners in law enforcement to remain aggressive in bringing individuals who defraud the UI system to justice. Rest assured we will do just that."
The arrests are a direct result of a Labor Department program that emphasizes better fraud detection through data matching, more proactive investigations, and better coordination with local law enforcement and prosecution agencies.
Details by county are below:
New York City Region:
Manhattan 55 arrests $261,966
Brooklyn (Kings) 35 arrests $198,254
Queens 33 arrests $198,057
Bronx 25 arrests $81,897
Richmond (Staten Island) 11 arrests $59,938
Total NYC Region: 159 arrests $800,112
The State Labor Department administers unemployment insurance benefits for the federal government. The weekly payments assist eligible workers who have lost their jobs through no fault of their own. To qualify for UI, people must be:
unemployed
ready, willing and able to work and
searching for a new job.
When applicants cheat the system by stealing from the UI Trust Fund, it has a negative effect on businesses across the state. Employers whose accounts pay for the false claims must take on a higher tax rate. For example, the average employer in New York State (with some 14 employees) that has an undetected fraudulent claim filed against it will pay over $700 more in taxes the next year. However, if the Labor Department detects the fraud, the tax increase is not charged to the employer.
"Unemployment insurance is a safety net for those who need assistance, not a jackpot for those who would game the system and cheat their neighbors," said Deputy Secretary for Public Safety Denise E. O'Donnell. "In this economic climate, when government resources are scarce and needs are high, we must be especially vigilant to discourage and punish cheating. Governor Paterson and I applaud Commissioner Smith and local law enforcement officials for their aggressive efforts to track down cheaters and recover the money they stole from honest taxpayers."
New York State Police Superintendent Harry J. Corbitt said, "The State Police stands ready to assist in investigating and apprehending those individuals willing to engage in the fraudulent use of Unemployment Insurance funds meant to assist honest workers and their families."
Manhattan District Attorney Cyrus R. Vance, Jr. said, "At a time when so many New Yorkers depend on unemployment benefits, the Manhattan DA's Office is committed to rooting out and prosecuting those who fraudulently receive these funds. Thanks to the work of the Governor's Office, the Department of Labor and state and local law enforcement agencies, through investigations like these we can ensure that unemployment benefits are directed toward those who urgently need them. I am proud that our Office was able to restore more than $250,000 to the State."
Kings County District Attorney Charles J. Hynes said, "This kind of fraud steals funds intended to help people who are in genuine need of public assistance. We continue to be vigilant about prosecuting these crimes."
Queens District Attorney Richard A. Brown said, "The payment of unemployment benefits is intended to assist out-of-work individuals and their families struggling through these tough economic times - not to subsidize the lifestyles of those who bilk the government of scarce resources through deception."
Bronx District Attorney Robert T. Johnson said, "The Labor Department is to be applauded for enhancing its data-matching and investigative ability. We will continue to stand alongside them in their efforts to put a stop to fraud."
Richmond County District Attorney Daniel M. Donovan, Jr. said, "Unemployment Insurance fraud is a crime against the taxpayers of this state and our neighbors who are out of work in this tough economy and legitimately need temporary assistance. We will continue to work with our partners in government and law enforcement to aggressively investigate and prosecute this crime."
To make an anonymous report about fraud against the Unemployment Insurance fund, call the Department of Labor's toll-free hotline at (888) 598-2077."
"If you work while receiving benefits and do not report that employment, even if it is part-time work, you may be committing fraud. You must report all full-time and part-time employment to the Labor Department or you risk criminal penalties."
So if a Claimant does not report income when a Claimant should, what happens? First, let us look at the NYS Unemployment Insurance Law:
"Sec. 594. Reduction of benefits for false statement. A claimant who has wilfully made a false statement or representation to obtain any benefit under the provisions of this article shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense.
For the purpose of subdivision four of section five hundred ninety of this article, the claimant shall be deemed to have received benefits for such forfeited effective days.
The penalty provided in this section shall not be confined to a single benefit year but shall no longer apply in whole or in part after the expiration of two years from the date on which the offense was committed."
A claimant shall refund all moneys received because of such false statement or representation made by him."
What if the Claimant does not refund all moneys. The UI regulations are helpful:
"§ 470.4 Overpaid unemployment insurance benefits
The Commissioner of Labor shall, as provided for in section 18 of the State Finance Law, waive the assessment of interest and late charges on debts owed which occurred as a result of overpayment of unemployment insurance benefits.
§ 470.5 Setoff against unemployment insurance benefits
Established and outstanding overpaid unemployment insurance benefits shall be collected from a claimant's weekly benefit award as a setoff.
Priority of liquidation. In the event that more than one overpayment is established against an individual claimant, setoff amounts will be debited to such overpayments in chronological order.
Willful overpayment. A setoff of 100 percent of the weekly benefit amount will apply to one or more established and outstanding overpayments attributable to an individual claimant so long as at least one of such overpayments is determined to have been willful.
Non-willful overpayment. A setoff of 50 percent of the weekly benefit amount will apply to one or more established and outstanding overpayments attributable to an individual claimant so long as none of such overpayments are determined to have been willful"
But we must also look at another relevant section of the Unemployment Insurance Law:
"Sec. 630. Penalties. Any misdemeanor defined in this title shall be punishable by a fine of not more than five hundred dollars or imprisonment for not more than one year, or both. The penalties and misdemeanors imposed by this title are in addition to those otherwise prescribed in this entire article."
That section under the Unemployment Insurance Law will lead us to the following:
"Sec. 632. False statements or representations.1. Benefits and contributions. Any person shall be guilty of a misdemeanor who wilfully makes a false statement or representation
(a) with the effect of obtaining, either for himself or for any other person, any benefit or payment under the provision of this article or of any similar law of another state or the United States in regard to which this state acted as agent pursuant to an arrangement authorized by this article...."
But other statutes are also involved. In June of 2009, 30 New York State employees from Albany to New York City were arrested and charged with unemployment fraud after they allegedly claimed unemployment benefits while actually working for the state. According to Attorney General Andrew Cuomo, the thirty defendants were charged with some variation of the crimes of Grand Larceny in the Third and Fourth Degrees, Falsifying Business Records in the First Degree, and Petit Larceny. Thus, felony charges can be involved. And if this can happen to state employees, can it happen in the private sector? Here is a press release from the Department of Labor in January of this year:
"New York State Cracks Down on Unemployment Insurance Fraud in New York City
Department of Labor Announces 2009 Fraud Investigation Results
Albany, NY (January 13, 2010) - State Labor Commissioner M. Patricia Smith today announced 159 arrests in New York City during 2009 for the theft of $800,112 from New York State's Unemployment Insurance (UI) trust fund. The State Labor Department worked with district attorneys and other law enforcement agencies to bring these people to justice. Most of those arrested had collected UI benefits while earning a paycheck. Governor David A. Paterson said, "One of the pitfalls of having so many New Yorkers collecting UI is that there will always be somebody who will try to take advantage of the system. Fortunately, we're doing a great job to keep on top of fraud and the results speak for themselves. In fact, New York's stepped-up crackdown on Unemployment Insurance fraud saved businesses large and small more than $35 million last year alone."
"It is nothing short of shameful to think that people would steal from a fund designed to help families put food on the table, gas in their cars and clothes on the backs of their children," said Commissioner Smith. "Governor Paterson has directed the Labor Department and its partners in law enforcement to remain aggressive in bringing individuals who defraud the UI system to justice. Rest assured we will do just that."
The arrests are a direct result of a Labor Department program that emphasizes better fraud detection through data matching, more proactive investigations, and better coordination with local law enforcement and prosecution agencies.
Details by county are below:
New York City Region:
Manhattan 55 arrests $261,966
Brooklyn (Kings) 35 arrests $198,254
Queens 33 arrests $198,057
Bronx 25 arrests $81,897
Richmond (Staten Island) 11 arrests $59,938
Total NYC Region: 159 arrests $800,112
The State Labor Department administers unemployment insurance benefits for the federal government. The weekly payments assist eligible workers who have lost their jobs through no fault of their own. To qualify for UI, people must be:
unemployed
ready, willing and able to work and
searching for a new job.
When applicants cheat the system by stealing from the UI Trust Fund, it has a negative effect on businesses across the state. Employers whose accounts pay for the false claims must take on a higher tax rate. For example, the average employer in New York State (with some 14 employees) that has an undetected fraudulent claim filed against it will pay over $700 more in taxes the next year. However, if the Labor Department detects the fraud, the tax increase is not charged to the employer.
"Unemployment insurance is a safety net for those who need assistance, not a jackpot for those who would game the system and cheat their neighbors," said Deputy Secretary for Public Safety Denise E. O'Donnell. "In this economic climate, when government resources are scarce and needs are high, we must be especially vigilant to discourage and punish cheating. Governor Paterson and I applaud Commissioner Smith and local law enforcement officials for their aggressive efforts to track down cheaters and recover the money they stole from honest taxpayers."
New York State Police Superintendent Harry J. Corbitt said, "The State Police stands ready to assist in investigating and apprehending those individuals willing to engage in the fraudulent use of Unemployment Insurance funds meant to assist honest workers and their families."
Manhattan District Attorney Cyrus R. Vance, Jr. said, "At a time when so many New Yorkers depend on unemployment benefits, the Manhattan DA's Office is committed to rooting out and prosecuting those who fraudulently receive these funds. Thanks to the work of the Governor's Office, the Department of Labor and state and local law enforcement agencies, through investigations like these we can ensure that unemployment benefits are directed toward those who urgently need them. I am proud that our Office was able to restore more than $250,000 to the State."
Kings County District Attorney Charles J. Hynes said, "This kind of fraud steals funds intended to help people who are in genuine need of public assistance. We continue to be vigilant about prosecuting these crimes."
Queens District Attorney Richard A. Brown said, "The payment of unemployment benefits is intended to assist out-of-work individuals and their families struggling through these tough economic times - not to subsidize the lifestyles of those who bilk the government of scarce resources through deception."
Bronx District Attorney Robert T. Johnson said, "The Labor Department is to be applauded for enhancing its data-matching and investigative ability. We will continue to stand alongside them in their efforts to put a stop to fraud."
Richmond County District Attorney Daniel M. Donovan, Jr. said, "Unemployment Insurance fraud is a crime against the taxpayers of this state and our neighbors who are out of work in this tough economy and legitimately need temporary assistance. We will continue to work with our partners in government and law enforcement to aggressively investigate and prosecute this crime."
To make an anonymous report about fraud against the Unemployment Insurance fund, call the Department of Labor's toll-free hotline at (888) 598-2077."
Wednesday, May 12, 2010
UNEMPLOYMENT INSURANCE - MISCONDUCT - TIME RECORDS
On April 30 I discussed a consultation with a Claimant where there was a disqualification due to false time records and that all the cases I discovered have held that false time records were misconduct, even if it only happened in one instance. I also queried as to how a decision would be reached if the evidence established that not only did the employee falsify time records, but that the employer did too in order to avoid paying overtime, reduce benefits, etc. Recently, I spoke to the Claimant after the hearing on the issue. The Claimant alleged, in part, that the time records were falsified by the Claimant because the Employer did too in order to avoid paying overtime, reduce benefits, etc. The Administrative Law Judge, however, was strict on the law, and, after having the decision read to me, I felt that the judge implied that if an Employer is falsifying an Employee's time records, the Employee's remedy is to file a complaint with the Employer and/or the Department of Labor; otherwise, the Employee is, in effect, merely taking the law into their own hands by falsifying time records to compensate for the Employer's wrongful actions. Of course, this Claimant is free to pursue a separate claim against the Employer for lost wages due to false time records but is disqualified for Unemployment Insurance benefits.
Tuesday, May 11, 2010
FREE SEMINAR AT NASSAU COUNTY BAR ASSOCIATION - MAY 17
The Community Relations & Public Education Committee of the Nassau County Bar Association will present a free Public Education Seminar on Monday, May 17 at 6:30 p.m. at the Association: “Cradle to Age 6: Starting on the Right Foot.” All are welcome to attend. Advance registration is required by calling 747-4070 or emailing ckatz@nassaubar.org.
Monday, May 10, 2010
FREE MORTGAGE FORECLOSURE CLINIC - NASSAU COUNTY BAR ASSOCIATION
Today, Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County. Attorneys (including myself) have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources. In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance. The clinic hours are 3pm to 6pm. Reservations are required by calling the Bar Association at 516-747-4070 between 9:30 a.m. - 4:30 p.m.
Sunday, May 9, 2010
UNEMPLOYMENT INSURANCE - SELF EMPLOYMENT
A few recent consultations have revealed that there may be an issue of whether, among other possible facts, the maintenance of a blog or website or other social media group constitutes self-employment and thus disqualifying UI benefits. Here is a story reported from Forbes just a few months ago but and one must remember that each case has its own peculiar facts:
"Blogger's Unemployment Benefits Reinstated After AdSense Fiasco
David K. Randall, 10.15.09, 4:00 PM ET
A blogger who lost her unemployment benefits after making a dollar a day through Google AdSense had her weekly checks restored yesterday. The New York Department of Labor reversed its stance that her blog constituted work, but it still does not have a policy for how to classify blogging that produces income.
As Forbes first reported, Karin, a 2008 graduate of the University of Virginia School of Law, applied for unemployment benefits after she was laid off by a New York City law firm six months into her job. She started a food blog to build a writing portfolio in hopes of attracting employers and made $238.75 over six months through Google AdSense, a service by the Web search company that pays bloggers to host ads on their Web sites.
When she reported this income to the New York State Department of Labor, she received conflicting advice about whether this income constituted work.
According to state regulations, anyone receiving unemployment benefits who works one day and earns less than $405 will have his check reduced by 25%. However, the state does not regard "residual income"--meaning payment for services previously rendered--as work that would affect a person's eligibility for unemployment benefits.
The state suspended Karin's weekly unemployment payments while it conducted an investigation into her "business," and Wednesday determined that the income was indeed residual.
"When the claimant brought the issue to the department's attention, the department went through the normal process to determine if the claimant was involved in any business activity," a Department of Labor spokesperson said. "Based upon the responses, it was determined that the income received was "passive" income and not directly related to a business activity, which is why her benefits were reinstated."
One key to the state's ruling was that the blog was essentially written as a form of self-promotion rather than being a for-profit enterprise. If Karin accepts money from restaurants in exchange for writing about their establishments, however, her blog will be viewed as work in the state's eyes, and she could become ineligible for unemployment benefits.
Karin says that the Department of Labor told her that she no longer needs to report her AdSense income. However, she is waiting to receive a guarantee in writing before she puts ads back up on her site."
"Blogger's Unemployment Benefits Reinstated After AdSense Fiasco
David K. Randall, 10.15.09, 4:00 PM ET
A blogger who lost her unemployment benefits after making a dollar a day through Google AdSense had her weekly checks restored yesterday. The New York Department of Labor reversed its stance that her blog constituted work, but it still does not have a policy for how to classify blogging that produces income.
As Forbes first reported, Karin, a 2008 graduate of the University of Virginia School of Law, applied for unemployment benefits after she was laid off by a New York City law firm six months into her job. She started a food blog to build a writing portfolio in hopes of attracting employers and made $238.75 over six months through Google AdSense, a service by the Web search company that pays bloggers to host ads on their Web sites.
When she reported this income to the New York State Department of Labor, she received conflicting advice about whether this income constituted work.
According to state regulations, anyone receiving unemployment benefits who works one day and earns less than $405 will have his check reduced by 25%. However, the state does not regard "residual income"--meaning payment for services previously rendered--as work that would affect a person's eligibility for unemployment benefits.
The state suspended Karin's weekly unemployment payments while it conducted an investigation into her "business," and Wednesday determined that the income was indeed residual.
"When the claimant brought the issue to the department's attention, the department went through the normal process to determine if the claimant was involved in any business activity," a Department of Labor spokesperson said. "Based upon the responses, it was determined that the income received was "passive" income and not directly related to a business activity, which is why her benefits were reinstated."
One key to the state's ruling was that the blog was essentially written as a form of self-promotion rather than being a for-profit enterprise. If Karin accepts money from restaurants in exchange for writing about their establishments, however, her blog will be viewed as work in the state's eyes, and she could become ineligible for unemployment benefits.
Karin says that the Department of Labor told her that she no longer needs to report her AdSense income. However, she is waiting to receive a guarantee in writing before she puts ads back up on her site."
Saturday, May 8, 2010
UNEMPLOYMENT INSURANCE - MISCONDUCT CRIMINAL ACTS
Many consultations have revealed that some Claimants have been discharged based upon alleged acts of misconduct and some of these allegations involve criminal acts. Here is the basic DOL rules on how they treat applications for benefits under these circumstances:
"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."
Friday, May 7, 2010
HOW TO BE A GOOD WITNESS
It can be intimidating, especially when you are testifying on your own behalf. Recently, I represented a client at a trial/hearing who was so nervous, the client, at several points, could not speak or remember evidence, even though I had the client type the testimony out in advance. So I am posting information from a pamphlet prepared by the Communications Committee of the State Bar of Georgia as a public service who state: "It is not intended to be a comprehensive statement of law. Its purpose is to inform, not to advise on any specific legal problem. If you have specific questions regarding any matter contained in this pamphlet, you are encouraged to consult a lawyer.":
"Rules for a Good Witness
1. Review the case.
Go over the facts of the case before your court appearance. If you have provided a prior statement or deposition, obtain a copy and review your prior testimony.
2. Discuss testimony in advance.
If you are called as a witness, the attorney calling you will undoubtedly discuss the case with you before the trial. There is nothing improper in this. The attorney has to find out in advance what you know about the case. If asked while testifying, do not hesitate to say that you have discussed the case with the attorney who contacted you.
3. Dress appropriately.
You should be comfortable and appropriate for the courtroom. If you are in doubt about what to wear, ask the attorney.
4. Tell the truth.
You are under oath when testifying and can be prosecuted for perjury if you lie. Don't let your personal judgment of who should win or lose color your testimony. Simply tell what you know.
5. Take your time.
Remember to think before you speak. You may be nervous, so don't answer questions before you fully understand them. If you don't understand a question, you can ask for the question to be rephrased or repeated. Never answer a question you do not understand.
6. Speak clearly.
Answer all questions clearly and loudly enough so everyone in the courtroom can hear you. A low tone of voice not only detracts from the value of your testimony, but also may make the court and jury assume you aren't sure about what you're saying. Talk at a moderate rate, and don't slur or mumble your words.
7. Listen carefully.
Don't attempt to guess at questions you don't hear or understand. In those instances, ask that the question be repeated or explained. If you don't know the answer to a question, simply state that you don't know.
8. Answer questions directly.
Give a simple answer only to the question asked. If a question can be answered with a "yes" or "no," do so. If you make a mistake when answering a question, correct it immediately. Don't volunteer information.
9. Don't lose your cool.
Never argue with the attorney (or judge - my insert) asking the questions.
10. Stop your testimony.
If an objection is made by one of the attorneys, or if the judge speaks, stop your testimony immediately. Don't try to complete your answer. Listen to the objection so you understand why it is being made.
11. Never guess.
If you do not know the answer, say so. If you have enough information to provide a reliable estimate in response to questions about distances, time or speed and you estimate, make sure to say that your answer is only an estimate.
12. Do not disclose anything your attorney has told you.
Conversations with your attorney are protected by the attorney-client privilege.
13. Be yourself.
Be natural and relax. If you tell the truth and remember you are just talking to some neighbor on the jury, you will get along fine."
"Rules for a Good Witness
1. Review the case.
Go over the facts of the case before your court appearance. If you have provided a prior statement or deposition, obtain a copy and review your prior testimony.
2. Discuss testimony in advance.
If you are called as a witness, the attorney calling you will undoubtedly discuss the case with you before the trial. There is nothing improper in this. The attorney has to find out in advance what you know about the case. If asked while testifying, do not hesitate to say that you have discussed the case with the attorney who contacted you.
3. Dress appropriately.
You should be comfortable and appropriate for the courtroom. If you are in doubt about what to wear, ask the attorney.
4. Tell the truth.
You are under oath when testifying and can be prosecuted for perjury if you lie. Don't let your personal judgment of who should win or lose color your testimony. Simply tell what you know.
5. Take your time.
Remember to think before you speak. You may be nervous, so don't answer questions before you fully understand them. If you don't understand a question, you can ask for the question to be rephrased or repeated. Never answer a question you do not understand.
6. Speak clearly.
Answer all questions clearly and loudly enough so everyone in the courtroom can hear you. A low tone of voice not only detracts from the value of your testimony, but also may make the court and jury assume you aren't sure about what you're saying. Talk at a moderate rate, and don't slur or mumble your words.
7. Listen carefully.
Don't attempt to guess at questions you don't hear or understand. In those instances, ask that the question be repeated or explained. If you don't know the answer to a question, simply state that you don't know.
8. Answer questions directly.
Give a simple answer only to the question asked. If a question can be answered with a "yes" or "no," do so. If you make a mistake when answering a question, correct it immediately. Don't volunteer information.
9. Don't lose your cool.
Never argue with the attorney (or judge - my insert) asking the questions.
10. Stop your testimony.
If an objection is made by one of the attorneys, or if the judge speaks, stop your testimony immediately. Don't try to complete your answer. Listen to the objection so you understand why it is being made.
11. Never guess.
If you do not know the answer, say so. If you have enough information to provide a reliable estimate in response to questions about distances, time or speed and you estimate, make sure to say that your answer is only an estimate.
12. Do not disclose anything your attorney has told you.
Conversations with your attorney are protected by the attorney-client privilege.
13. Be yourself.
Be natural and relax. If you tell the truth and remember you are just talking to some neighbor on the jury, you will get along fine."
Thursday, May 6, 2010
UNEMPLOYMENT INSURANCE - PREGNANCY
I have a hearing today where the issue is whether the Claimant, who was pregnant and delivered birth, voluntary separated after delivery, as the Employer claims. The Claimant claims the job was terminated because of the pregnancy. In this type of case, one must not just research the Appeals Board decisions but also the Federal and State laws regarding pregnancy discrimination as well as the Federal Medical Leave Act and advise the Claimant to consult with the appropriate agencies and with specialized counsel to consider discrimination claims.
Wednesday, May 5, 2010
THE IMPAIRED ATTORNEY/THE IMPAIRED CLIENT
Yesterday, I attended a terrific seminar entitled "REPRESENTING AND ASSISTING THE IMPAIRED ATTORNEY, Strategies To Minimize Fallout and Maximize Potential for Recovery". Among the issues discussed in addition to depression were alcohol and drug abuse, gambling addiction and the NYS Diversion & Monitoring Agreement. Attending the seminar, I realized that the strategies discussed also apply to the layperson. Whether it be mortgage foreclosure, bankruptcy, eviction, job loss, divorce, criminal issues - the problem of mental health should be identified. On that same day, I had a consultation with an individual who had just suffered a job loss. The signs of mental anguish were obvious in every word spoken. Like a primary care physician, sometimes an attorney's job is to advise the client of all the issues that can be identified - and with job loss, besides issues of discrimination, whistle blowing, COBRA, unemployment insurance, etc., the issue of mental health may also be appropriate.
Tuesday, May 4, 2010
UNEMPLOYMENT HEARINGS - PREPARATION FOR HEARINGS
Back to more comments on some of the statements made on the Appeals Board FAQ website on hearings. The next FAQ is as follows:
"Will the other party (claimant or employer) have an attorney?
The other party might have an attorney. If it is known by the hearing office before the Notice of Hearing is mailed, the name and address of the attorney or representative would be listed on the Notice of Hearing."
Also, a review of the file will indicate if the Employer has representation. Many times, the large business Employers are represented by corporations who specialize in representing Employers and who retain either licensed service representatives and sometimes even an attorney to attend the hearing. A small business Employer usually does not have an attorney. Whether or not the Employer has an attorney does not indicate whether or not there will be a litigious hearing. Sometimes, in my experience, when Employers appear pro se, the hearings are long, protracted and extremely argumentative. I have also seen, in several cases, where an Employer has an attorney or representative and has, after the hearing or review of transcripts, appropriately advised them to not seek any further objection or to withdraw their objection to benefits. And then sometimes, there is a 3rd party....the Department of Labor (DOL) may send an attorney to side with either the Employer or the Claimant. My experience has been that when the DOL appears by counsel, it is usually to side with the Employer.
"Will the other party (claimant or employer) have an attorney?
The other party might have an attorney. If it is known by the hearing office before the Notice of Hearing is mailed, the name and address of the attorney or representative would be listed on the Notice of Hearing."
Also, a review of the file will indicate if the Employer has representation. Many times, the large business Employers are represented by corporations who specialize in representing Employers and who retain either licensed service representatives and sometimes even an attorney to attend the hearing. A small business Employer usually does not have an attorney. Whether or not the Employer has an attorney does not indicate whether or not there will be a litigious hearing. Sometimes, in my experience, when Employers appear pro se, the hearings are long, protracted and extremely argumentative. I have also seen, in several cases, where an Employer has an attorney or representative and has, after the hearing or review of transcripts, appropriately advised them to not seek any further objection or to withdraw their objection to benefits. And then sometimes, there is a 3rd party....the Department of Labor (DOL) may send an attorney to side with either the Employer or the Claimant. My experience has been that when the DOL appears by counsel, it is usually to side with the Employer.
Monday, May 3, 2010
THE IMPAIRED ATTORNEY
Depression is a dangerous disease, and lawyers are more prone to it than members of any other profession. Consider these numbers:
1. A 1990 study at Johns Hopkins University found that of 28 occupations studied, lawyers were the most likely to suffer depression, and were more than 3.6 times more likely than average to do so. A Harrison Barnes, Builders and Destroyers (citing W.W. Eaton, J.C. Anthony, W. Mandel & R. Garrison, Occupations and the Prevalence of Major Depressive Disorder, 32 J. Occupational Med. 1079 (1990).
2. A research study of 801 lawyers in the State of Washington found that 19% suffered from depression. Barnes, supra (citing G.A.H. Benjamin, E.J. Darling & B.D. Sales, The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse Among United States Lawyers, 13 J. Law & Psychiatry 233 (1990).
3. A quality-of-life survey by the North Carolina Bar Association in 1991 revealed that almost 26% of respondents exhibited symptoms of clinical depression, and almost 12% said they contemplated suicide at least once a month. Michael J. Sweeney, The Devastation of Depression.
I am a member of the Nassau County Bar Association's Lawyer Assistance Committee. Tomorrow I will be attending a seminar entitled "REPRESENTING AND ASSISTING THE IMPAIRED ATTORNEY, Strategies To Minimize Fallout and Maximize Potential for Recovery". Among the issues to be discussed in addition to depression are alcohol and drug abuse, gambling addiction and the NYS Diversion & Monitoring Agreement.
1. A 1990 study at Johns Hopkins University found that of 28 occupations studied, lawyers were the most likely to suffer depression, and were more than 3.6 times more likely than average to do so. A Harrison Barnes, Builders and Destroyers (citing W.W. Eaton, J.C. Anthony, W. Mandel & R. Garrison, Occupations and the Prevalence of Major Depressive Disorder, 32 J. Occupational Med. 1079 (1990).
2. A research study of 801 lawyers in the State of Washington found that 19% suffered from depression. Barnes, supra (citing G.A.H. Benjamin, E.J. Darling & B.D. Sales, The Prevalence of Depression, Alcohol Abuse, and Cocaine Abuse Among United States Lawyers, 13 J. Law & Psychiatry 233 (1990).
3. A quality-of-life survey by the North Carolina Bar Association in 1991 revealed that almost 26% of respondents exhibited symptoms of clinical depression, and almost 12% said they contemplated suicide at least once a month. Michael J. Sweeney, The Devastation of Depression.
I am a member of the Nassau County Bar Association's Lawyer Assistance Committee. Tomorrow I will be attending a seminar entitled "REPRESENTING AND ASSISTING THE IMPAIRED ATTORNEY, Strategies To Minimize Fallout and Maximize Potential for Recovery". Among the issues to be discussed in addition to depression are alcohol and drug abuse, gambling addiction and the NYS Diversion & Monitoring Agreement.
Sunday, May 2, 2010
UNEMPLOYMENT INSURANCE HEARINGS - VOLUNTARY SEPARATION
If you are unhappy with you job due to friction with other employees, quiting the job may lead to a denial of benefits. Here is the general case law from the Appeals Board:
Incompatibility with an employer ordinarily does not constitute good cause for a voluntary quit unless accompanied by factors such as resulting impairment of the claimant's health or impugnment by the employer of claimant's honesty and integrity. (A-750-1243; A.B. 39,427-53)
False accusations or constant insinuations made by the employer that claimant is dishonest may constitute good cause for voluntary leaving. (A.B. 13,297-46)
Constant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee's voluntary leaving of employment. (Ref. Dec. 51-325-52R; A-750-1138; similarly, A.B. 258,475A)
When working conditions become intolerable because of continuous friction with supervisor, good cause may exist for voluntary leaving. (A.B. 12,979-46)
Mere inability to get along with supervisor (clash of personalities) is not good cause for voluntary leaving. (A.B. 13.010-46)
Mere displeasure with a co-worker's attitude in the absence of evidence that health was being impaired is not sufficient of itself to constitute good cause for voluntary leaving. (A.B. 16,683-48)
Inability to get along with a fellow employee is not in itself good cause for leaving employment. (A.B. 7053-42)
Being harassed and annoyed by co-workers to such an extent that health is adversely affected may be good cause for voluntary leaving. (A.B. 8108-42)
A supervisor's continuing use of abusive profanity when reprimanding the claimant, despite complaints to the employer, provides good cause for voluntary leaving of employment. (A.B. 337,447; A-750-1941)
Disagreement with an employer's new and reasonable "no smoking" policy, which makes provision to accommodate "smokers" does not constitute good cause for leaving employment. (A.B. 388,255; A-750-1991)
Thus, one must establish, in effect, the existence of a "hostile environment", acts of discrimination, harassment, etc, and it is best to be specific, detailed and have back up of documents of all your claims, especially that it effected your health. Generally, I send Claimants a Questionnaire to help me evaluate the case:
First, I need some basic information:
1. Name of employer.
2. Nature of employer's business.
3. What date Claimant began employment.
4. How did Claimant obtain the employment.
5. What was Claimant employed as, viz job title.
6. What was Claimant's duties.
7. Was the job a union job.
8. Claimant's pay history.
9. The hours and days Claimant worked, viz., Claimant's regular schedule and actual schedule.
10. Whether Claimant received evaluations in writing or orally.
11. When was the last day of employment and what happened that day.
If Claimant received a Notice of Adverse Determination on the grounds of Voluntary Separation Without Good Cause, please be specific and in diary form with the following information:
1. Why did Claimant quit.
2. Describe the date, time, place, people present at the incidences that the Claimant feels gave them reason to quit.
3. Describe in detail each incident.
4. Describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.
5. Describe in detail what the Claimant feels the employer was doing that was in violation of any state or federal law.
6. Describe in detail any changes in the terms and conditions of the Claimant's employment such as pay, work hours, work days, change in location, change in duties, etc.
7. Describe in detail any health issues that led to the Claimant quitting with appropriate medical documentation and whether and when that information was transmitted to the employer and, of course, describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.
I usally ask that the incidents be written in diary form because:
1. It will help the Claimant's case that the Claimant was in a hostile work environment and had a compelling cause to quit if the Claimant can specify, as best the Claimant can, each incident.
2. A diary form will help the Claimant recall events - it is just a fact that writing down a diary jogs a witnesses testimony. Perhaps there was someone the Claimant spoke to about these incidents who can help the Claimant in recalling them.
3. A diary form will make it easier at the hearing to establish the Claimant's case. the information above is exactly what the judges ask for.
4. In Voluntary Separation cases, sometimes the DOL sends their own attorney who will also take the position that the Claimant is not entitled to benefits. My experience is that during their cross-examination, they try to catch the Claiamnt in inconsistent statements to discredit them. A diary helps the Claimant to be consistent.
Of course, the file must be reviewed before the hearing and it helps if the Claimant can obtain copies of all documents submitted by Claimant to the DOL and all documents the Employer submitted in opposition to the claim.
Incompatibility with an employer ordinarily does not constitute good cause for a voluntary quit unless accompanied by factors such as resulting impairment of the claimant's health or impugnment by the employer of claimant's honesty and integrity. (A-750-1243; A.B. 39,427-53)
False accusations or constant insinuations made by the employer that claimant is dishonest may constitute good cause for voluntary leaving. (A.B. 13,297-46)
Constant nagging by his supervisor, as distinguished from legitimate criticism, may constitute good cause for an employee's voluntary leaving of employment. (Ref. Dec. 51-325-52R; A-750-1138; similarly, A.B. 258,475A)
When working conditions become intolerable because of continuous friction with supervisor, good cause may exist for voluntary leaving. (A.B. 12,979-46)
Mere inability to get along with supervisor (clash of personalities) is not good cause for voluntary leaving. (A.B. 13.010-46)
Mere displeasure with a co-worker's attitude in the absence of evidence that health was being impaired is not sufficient of itself to constitute good cause for voluntary leaving. (A.B. 16,683-48)
Inability to get along with a fellow employee is not in itself good cause for leaving employment. (A.B. 7053-42)
Being harassed and annoyed by co-workers to such an extent that health is adversely affected may be good cause for voluntary leaving. (A.B. 8108-42)
A supervisor's continuing use of abusive profanity when reprimanding the claimant, despite complaints to the employer, provides good cause for voluntary leaving of employment. (A.B. 337,447; A-750-1941)
Disagreement with an employer's new and reasonable "no smoking" policy, which makes provision to accommodate "smokers" does not constitute good cause for leaving employment. (A.B. 388,255; A-750-1991)
Thus, one must establish, in effect, the existence of a "hostile environment", acts of discrimination, harassment, etc, and it is best to be specific, detailed and have back up of documents of all your claims, especially that it effected your health. Generally, I send Claimants a Questionnaire to help me evaluate the case:
First, I need some basic information:
1. Name of employer.
2. Nature of employer's business.
3. What date Claimant began employment.
4. How did Claimant obtain the employment.
5. What was Claimant employed as, viz job title.
6. What was Claimant's duties.
7. Was the job a union job.
8. Claimant's pay history.
9. The hours and days Claimant worked, viz., Claimant's regular schedule and actual schedule.
10. Whether Claimant received evaluations in writing or orally.
11. When was the last day of employment and what happened that day.
If Claimant received a Notice of Adverse Determination on the grounds of Voluntary Separation Without Good Cause, please be specific and in diary form with the following information:
1. Why did Claimant quit.
2. Describe the date, time, place, people present at the incidences that the Claimant feels gave them reason to quit.
3. Describe in detail each incident.
4. Describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.
5. Describe in detail what the Claimant feels the employer was doing that was in violation of any state or federal law.
6. Describe in detail any changes in the terms and conditions of the Claimant's employment such as pay, work hours, work days, change in location, change in duties, etc.
7. Describe in detail any health issues that led to the Claimant quitting with appropriate medical documentation and whether and when that information was transmitted to the employer and, of course, describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.
I usally ask that the incidents be written in diary form because:
1. It will help the Claimant's case that the Claimant was in a hostile work environment and had a compelling cause to quit if the Claimant can specify, as best the Claimant can, each incident.
2. A diary form will help the Claimant recall events - it is just a fact that writing down a diary jogs a witnesses testimony. Perhaps there was someone the Claimant spoke to about these incidents who can help the Claimant in recalling them.
3. A diary form will make it easier at the hearing to establish the Claimant's case. the information above is exactly what the judges ask for.
4. In Voluntary Separation cases, sometimes the DOL sends their own attorney who will also take the position that the Claimant is not entitled to benefits. My experience is that during their cross-examination, they try to catch the Claiamnt in inconsistent statements to discredit them. A diary helps the Claimant to be consistent.
Of course, the file must be reviewed before the hearing and it helps if the Claimant can obtain copies of all documents submitted by Claimant to the DOL and all documents the Employer submitted in opposition to the claim.
Saturday, May 1, 2010
ATTORNEYS AND CLIENTS - ADEQUATE REPRESENTATION
According to today's Newsday, more than 2,300 attended the three-day mortgage modification event which ended Friday night but that the event averaged around 750 people a day, less than the 1,500 per day capacity. In fact, Newsday reports the following statement: "We had certainly planned for and hoped for a larger turnout." said Alvina McHale, spokeswoman for the U.S. Treasury Department. Moreover, McHale commented on how homeowners were not prepared in bringing the documents needed to make the event worthwhile for them. This is what I experience too as an attorney: many people asking for help but not willing or able to gather the evidence that would help them. Let me start first with mortgage modifications: at many consultations, whether at a mortgage foreclosure clinic or at a mandatory settlement conference, a client will fail or are unwilling to bring the foreclosure papers, the mortgage papers, etc. or any of the papers required for an attorney to help them. At Landlord/Tenant court, tenants will discuss their defenses of payment, inhabitable premises, etc. but will fail or are unwilling to bring to court any evidence of it. In Unemployment Insurance matters, Claimants will discuss their position as to why they are entitled to benefits, etc. yet fail or are unwilling to produce any of the documents that back up their position. Now I am sure there are some who may say: "of course, they didn't bring proof because they are not telling the truth". But that is not always the case. The stress and mental anguish that an individual can go through in trying times can sometimes be so overpowering that a sense of hopelessness and despair takes over and prevents an individual from taking the needed steps that permit an attorney to adequately represent them. I welcome to hear from other attorneys on their own experiences and if anyone knows of any studies on this.
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