NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

It would appear that job performance that is affected by a disability should not be considered misconduct. As the DOL states:

"The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated. Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion."

NEW YORK UNEMPLOYMENT INSURANCE - DISABILITY AND CLAIMANTS

Recent news about the airline pilot who had an attack during a flight illustrates a problem that comes up in Unemployment Insurance matters - when an employee is terminated for misconduct and/or voluntary separates, will the employee be eligible for unemployment insurance if the incident leading to job termination was related to the disability.

NEW YORK UNEMPLOYMENT INSURANCE - AT A HEARING TODAY

Claimant terminated. Claimant filed for benefits. Employer objected. DOL determined claimant ineligible and claimant requested hearing.

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT AND FINAL WARNING

From IN THE MATTER OF: Appeal Board No. 554787 (AUGUST 24, 2011):

"The credible evidence establishes that on June 28, 2010, the claimant allowed a registered nurse to sit on his knee with his arm around her waist in the nurses' station while she put his cell phone on "vibrate" and told an LPN she could send her cell phone picture of this to his home e-mail. We recognize that the claimant was on a general final warning facing the consequence of discharge for any further violation of the employer's policies. However, the final warning of May 18 had to do with a HIPAA violation that the claimant incurred by accessing a former patient's medical records without authorization. This was unrelated to the final incident on June 28. Specifically there was no image in the LPN's cell phone photo of any patients on the unit which would have been in violation of patient privacy rules under HIPAA. The conduct that the claimant "allowed" from his subordinates reflected yet another instance of his general exercise of poor professional judgment under the circumstances, rather than a repeat of what he had already been warned for. Therefore, we conclude that the claimant could not have known from the May 18 warning that his job would be in jeopardy for the incident of June 28. We also note that the employer's witness admitted that the claimant had never been trained in requisite skills necessary to be an efficient supervisor. Thus, we are not persuaded by the employer's citations to Court cases in which claimants were found to have committed misconduct for a repeated violation of a specific employer policy after final warning. We conclude that the claimant, a long term employee, failed to meet the employer's standards for good professional judgment in a variety of situations. However,we have long held that poor performance is not misconduct. While an employer may discharge an unsatisfactory employee for any legal reason, not all discharges for cause rise to the level of misconduct for unemployment insurance purposes. Accordingly, we conclude that the claimant lost his job under non disqualifying conditions and is eligible for benefits."

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT AND FINAL WARNING

From IN THE MATTER OF: Appeal Board No. 557575 (DECEMBER 14, 2011):

"In misconduct cases, we look to the final incident that precipitated the claimant's actual separation from his work, which in this case was the encounter with his co-worker. In this case the claimant was fired rather than disciplined like his co-worker because he had already been on an unrelated final warning for attendance. However, in misconduct cases, for a warning to support a conclusion of misconduct, it must be directly related to the facts of the final incident. Therefore, we do not agree with the Commissioner of Labor's contention that the September 30, 2010
attendance warning placed the claimant on notice that a violation of safety rules could end in his discharge."

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT AND FINAL WARNING

As a general rule, in misconduct cases, for a warning to support a conclusion of misconduct, it must be directly related to the facts of the final incident. Thus, if employer issues a final warning regarding "Behavior A" but the final incident is "Behavior B", the final warning regarding "Behavior A" did not place the claimant on notice that engaging in "Behavior B" could end in discharge

NEW YORK UNEMPLOYMENT INSURANCE - AT A HEARING TODAY

Claimant terminated. Claimant filed for benefits. Employer objected. DOL determined claimant eligible and employer requested hearing.

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Here is a recent interesting case - illustrating the issues confronting claimants and the credibility of evidence:

"IN THE MATTER OF THE CLAIM OF BRIMAGE v. COMMISSIONER OF LABOR, 512718 (3d Dept 3-15-2012)
2012 NY Slip Op 01851
In the Matter of the Claim of NICOLE BRIMAGE, Appellant. v. COMMISSIONER OF
LABOR, Respondent.
512718
Appellate Division of the Supreme Court of New York, Third Department

Calendar Date: January 23, 2012 Decided on March 15, 2012

Appeal from a Decision of the Unemployment Insurance Appeal Board, Filed
October 25, 2010, which, Upon Reconsideration, Ruled, Among Other Things,
that Claimant was Disqualified from Receiving Unemployment Insurance
Benefits because she lost her Employment due to Misconduct.

Karen Cacace, The Legal Aid Society, New York City, for appellant.

Eric T. Schneiderman, Attorney General, New York City (Gary Leibowitz of
counsel), for respondent.

Before: PETERS, J.P., LAHTINEN, MALONE Jr., STEIN and GARRY, JJ.
Page 1

MEMORANDUM AND ORDER

Claimant was discharged from her employment at a nursing home for
allegedly falsely representing on her employment application that she had
never been convicted of a crime. Specifically, a fingerprint background
check by the employer with the Department of Health indicated that claimant
had previously been convicted of a misdemeanor in California in 1992. At the
ensuing hearing, claimant denied ever being charged or arrested while she
lived in California and asserted that she was not the person named in the
background check. Thereafter, the Unemployment Insurance Appeal Board
disqualified claimant from receiving unemployment insurance benefits on the
ground that she lost her employment due to misconduct; however, the Board
later remitted the matter so that further proof could be taken regarding
claimant's allegation of mistaken identity, as well as the issue of whether
the alleged charge against her was considered a crime or infraction in
California. Following the remittal, the Board, among other things, rescinded
its prior decision but nonetheless concluded that claimant lost her
employment due to disqualifying misconduct. This appeal ensued.

Substantial evidence supports the Board's determination that claimant is
disqualified from receiving unemployment insurance benefits because she lost
her job for entering false information on her employment application (see
Matter of Miller [Albany Hous. Auth. — Commissioner of Labor], 50 AD3d 1432,
1433 [2008]). Claimant's assertion that she was never charged or convicted of anything in California created a credibility issue that the Board had the authority to resolve against her (see Matter of Zaydman [Roman Roytberg, Inc., P.C. —
Commissioner of Labor], 87 AD3d 1192, 1193 [2011]). As for the issue
concerning the nature of the 1992 conviction, evidence exists to support the
Board's ruling that the conviction was for a crime. The fact that there may
also be proof that could support a contrary result is not dispositive (see
Matter of Johnson [Commissioner of Labor], 83 AD3d 1314, 1314 [2011]).

Peters, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the decision is affirmed, without costs."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

According to the Appellate Division, Third Department, issues of credibility are left to the Appeal Board as set forth in this recent case:

"2012 NY Slip Op 00694

IN THE MATTER OF THE CLAIM OF ALEASHA S. BARTON, Appellant. v. COMMISSIONER
OF LABOR, Respondent.

Appellate Division of the Supreme Court of New York, Third Department

Calendar Date December 12, 2011 Decided and Entered February 2, 2012

Aleasha S. Barton, New York City, appellant pro se.

Eric T. Schneiderman, Attorney General, New York City (Bessie Bazile of
counsel), for respondent.
Page 1

MEMORANDUM AND ORDER

Claimant worked for the employer as a correction officer for approximately
three years when she came under investigation in June 2010 for alleged
improprieties. Although claimant was told by the warden of the facility not
to discuss the investigation, she did so with fellow correction officers
and, when questioned about it, stated that she did not discuss the matter.
Claimant was thereafter discharged and her application for unemployment
insurance benefits was denied. The Unemployment Insurance Appeal Board
ultimately affirmed the denial of benefits and claimant now appeals.

We affirm. The dishonesty of an employee has been held to constitute
misconduct disqualifying him or her from receiving unemployment insurance
benefits, particularly where the employment at issue requires a high
standard of honesty and integrity (see Matter of Zaydman [Roman Roytberg,
Inc., P.C. — Commissioner of Labor], 87 AD3d 1192, 1193 [2011]; Matter of
Singleton [Commissioner of Labor], 60 AD3d 1230, 1231 [2009]). Here,
substantial evidence supports the Board's determination that, after being
instructed not to discuss the investigation with anyone, claimant indeed
discussed it with her fellow employees and then was dishonest with
investigators when questioned about whether she had done so. Claimant's
assertions that she did not understand that she was not to speak with other
officers and that she eventually admitted that she had spoken with them raised credibility questions for the Board to resolve (see Matter of Zaydman [Roman Roytberg, Inc., P.C. — Commissioner of Labor], 87 AD3d at 1193; Matter of Morar [JSB Props., LLC — Commissioner of Labor], 86 AD3d 887, 888 [2011]).

Peters, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the decision is affirmed, without costs.

512555

Appeal from a decision of the Unemployment Insurance Appeal Board, filed
January 27, 2011, which ruled that claimant was disqualified from receiving
unemployment insurance benefits because her employment was terminated due to
misconduct.

Before: PETERS, J.P., LAHTINEN, KAVANAGH, McCARTHY and EGAN Jr., JJ.

Copyright © 2012 CCH Incorporated or its affiliates"

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

In the matter I was handling, the conflict in testimony was not between the claimant's signed statement and later testimony but between the summary of an interview by claimant with the DOL on one hand and the claimant's testimony, the testimony of a witness and a document. Thus, on appeal to the Appeal Board, I argued that Matter of Jensen did not apply and the Appeal Board remanded the matter for a new hearing (which was held but no decision yet).

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

This is the decision referred to by the ALJ in the prior post:

"49 A.D.2d 794 (1975)
In the Matter of the Claim of Clara B. Jensen, Appellant. Louis L. Levine, as Industrial Commissioner, Respondent
Appellate Division of the Supreme Court of the State of New York, Third Department.

September 25, 1975
Greenblott, J. P., Kane, Main, Larkin and Reynolds, JJ., concur.

Claimant left her employment on March 1, 1974 and shortly thereafter moved to Florida with her husband who had retired. In her initial claim for benefits she stated that she had voluntarily left her job to move to Florida with her husband and that there was "no compelling reason other than a desire for change of climate and locale". At the referee's hearing claimant contended for the first time that she had been compelled to leave her job for reasons of health, and in support of this contention she submitted a note from a doctor which stated that he had advised claimant to quit her job because she was under great tension, but which did not advise her to relocate to Florida. The board was thus presented with conflicting evidence from which either of two conclusions as to the reasons for claimant's removal from employment could have been reached. In such a situation the "resolution of the conflict as to the cause of appellant's separation from employment" is solely for the board, where, as here, its determination is supported by substantial evidence (Matter of Weber [Catherwood], 32 AD2d 697). The board was properly within its province in finding that claimant's signed statement made upon her application for benefits more accurately reflected the true reasons for her leaving her employment.

Decision affirmed, without costs."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

In one UI matter in which I represented the claimant, the claimant was denied benefits for misconduct, viz., violation of a company policy. The claimant was an employee and was terminated. The claimant filed a claim for benefits and the employer filed an objection. The DOL investigated the claim and the objection and, as part of the investigation, interviewed the claimant by telephone. The DOL summary of interview stated that the claimant made a certain statement to the DOL investigator during the telephone investigation. Based upon that statement, the DOL denied the claimant UI benefits. The claimant at the hearing testified that the summary of interview was not an accurate description of the statement given and clarified the testimony as the hearing. The ALJ upheld the DOL determination of a violation of company policy stating that: “the Court has held that a claimant’s earlier statement is given greater weight then his testimony at the hearing. See, Matter of Jensen, 49 AD2d 794.”

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another Appeal Board case discussing credibility is set forth here - note the section in bold (emphasis supplied):

"Mailed and Filed: MARCH 02, 2012

IN THE MATTER OF: Appeal Board No. 555993

PRESENT: GEORGE FRIEDMAN, GERALDINE A. REILLY MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective April 29, 2010, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by MURRAY HILL MEDICAL GROUP prior to April 29, 2010, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held telephone conference hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, the employer, and the Commissioner of Labor. By decision filed December 7, 2010 (A.L.J. Case No. ), the Administrative Law Judge sustained the initial determination.The claimant appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a receptionist at a medical practice from August 17, 2009 through April 28, 2010. The employer occupied five floors of an office building, with the claimant working on the fourth floor. During the period of the claimant's employment, the employer found that the claimant's customer service skills were poor.Finally, the claimant's supervisor, the Chief Operating Officer, and the Director of Human Resources met and decided as a group that the claimant would be discharged. The claimant's supervisor then prepared a memorandum outlining the various concerns that supported this outcome, including unacceptable body language with patients, eating at her work station, use of her cell phone at work, and leaving the work station without permission from her supervisor. In terms of the sequence of these events, the last event was the claimant's leaving her work station.
The issue of leaving the work station involved the claimant being observed by the supervisor on the seventh floor of the employer's offices on two separate occasions on or about April 26, 2010 without the supervisor's knowledge or permission. The employer estimates that the claimant would have been away from her work station for ten to fifteen minutes each time. The employer had a rule requiring receptionists to get permission from the supervisor before leaving their work stations for more than a minimal amount of time. The supervisor had sent e-mails to the receptionists on March 16, 2010 and April 9,2010 to remind them of this rule. These e-mails were written with the claimant and another receptionist in mind.After the claimant's supervisor wrote the discharge memo, the Director of Human Resources edited it. The employer fired the claimant on April 28, 2010. During this conversation, the Director Human Resources suggested to the claimant that perhaps she shouldn't work in the customer service industry.

OPINION: The credible evidence establishes that the employer had multiple concerns regarding the claimant's job performance by the time the employer discharged her on April 28, 2010. At the hearings, the claimant's supervisor provided contradictory testimony with respect to the specific factors that she, the Chief Operating Officer, and the Director of Human Resources discussed before agreeing to discharge the claimant.At the hearing held on August 2, 2010, she testified that she did not remember whether the incident with the claimant leaving her work station was discussed at the meeting where the decision to discharge was made. She also did not remember discussing this issue with the Director of Human Resources without the Chief Operating Officer present.Rather, she remembered that, when she met with both the HR Director and the COO,they discussed the claimant's poor customer service and eating at her desk. The supervisor further testified that she believed the claimant would have been discharged even if the incident of leaving her work station had not occurred.At the hearing held August 27, 2010, the claimant's supervisor testified that the incident with the claimant leaving her work station was the event that precipitated the meeting to discuss whether to fire the claimant. She testified that she and the COO and HR Director discussed everything that subsequently went into the memo, including the claimant's leaving her work station. She further testified that the claimant would not have been fired for poor customer service alone, as the employer was coaching the claimant regarding her customer service skills.These conflicting stories from the same witness leave us unable to credit her testimony that the claimant's two unauthorized departures from her workstation comprised the final incident triggering her discharge. We note that the claimant testified that, at the time when she was fired, she was told that she was being fired for poor customer service and an unprofessional posture. Thus, the claimant's testimony is consistent with the supervisor's testimony from the first hearing. Although we recognize that there may be reason to question the credibility of each of the witnesses in this case-whether because of self-interest, limited knowledge or fading memory- the weight of the evidence supports the conclusion that the claimant was fired for poor customer service and not for leaving her work station. Accordingly, we conclude that the claimant was fired for poor job performance which does not constitute disqualifying misconduct for purposes of the Unemployment Insurance Law, and the claimant is allowed benefits.

DECISION: The decision of the Administrative Law Judge is reversed. The initial determination, disqualifying the claimant from receiving benefits effective April29, 2010, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to April 29, 2010, cannot be used toward the establishment of a claim for benefits, is overruled.The claimant is allowed benefits with respect to the issues decided herein.

GEORGE FRIEDMAN, MEMBER GERALDINE A. REILLY, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

Another Appeal Board case discussing credibility is set forth here - note the section in bold (emphasis supplied):

"IN THE MATTER OF: Appeal Board No. 551306

PRESENT: LEONARD D. POLLETTA, MICHAEL T. GREASON MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective August 10, 2006, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by GATEWAY CARGO SVC CENT INC prior to August 10,2006, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision filed March 26,2010 (), the Administrative Law Judge overruled the initial determination.The Commissioner of Labor appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed for a cargo service as a warehouse agent at an airport for one and a half years until August 16, 2006. He was discharged for theft of a co worker's motorcycle and other items from the employer. The claimant was arrested on a charge of criminal possession of stolen property in the third-degree (a D felony), on August 12, 2006. He pled guilty to the charge on January 29, 2009.

OPINION: The credible evidence establishes that the claimant was discharged, on August 16, 2006, for stealing from a coworker and from the employer. While the Administrative Law Judge accepted the claimant's testimony that he had been separated from employment on September 5, 2006 because the Port Authority would not return his ID, the appeal Board is not bound thereby and is entitled to pass on issues of credibility. Matter of Di Donato, 176 AD2d 11 (1991). Credibility is judged by the internal consistency of the story and the believability of the story itself. (See AB 543360.) The claimant's story was not internally consistent. The claimant changed his testimony regarding how he lost his employment and when he was arrested and for what several times. The claimant initially testified that he was arrested and incarcerated August 16, 2006, and held for three days, and so couldn't go to work because the Port Authority took his identification badge from him and he couldn't work at the airport without his identification. He also testified he was held through September 5, 2006 on that arrest. Next, he testified that his mother and lawyer told him not to go near the employer between August 19 and September 5, 2006 because they might arrest him for stealing the co-worker's motorcycle and some office supplies because they were accusing him of doing so, even though he also asserted that he didn't know about that accusation until he received the initial determination from the Department of Labor. Lastly, the claimant testified that the Port Authority took his identification badge after he was arrested in October for having an illegal handgun that he hadn't known know was in the car. As the claimant's testimony is not internally consistent and is not believable, we may reject it.The documentary evidence establishes that the employer discharged the claimant because he stole a co worker's motorcycle and other items from the employer. The certificate of disposition for his plea of guilty to criminal possession of stolen property Ianthe third-degree indicates he was arrested pursuant to this charge on August 12, 2006.The claimant's application for benefits, made on August 21, 2006, indicates that he had been fired by the employer and his last day of work was August 16, 2006. Therefore, we may conclude that the claimant was discharged on August 16, 2006 for stealing from acoworker and from the employer. We consider this to be in connection with his employment because the claimant worked at an airport and, given national security concerns, it is inappropriate to have persons who commit felonies working at an airport and his behavior was, therefore, detrimental to the employer's best interests.Accordingly, we conclude that the claimant's actions of stealing from his coworker and from the employer rose to the level of misconduct under the Unemployment Insurance Law, and he was properly disqualified from receiving benefits, effective August 16, 2006.

DECISION: The decision of the Administrative Law Judge is reversed.The initial determination, disqualifying the claimant from receiving benefits effective August 10, 2006, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to August 10, 2006, cannot be used toward the establishment of a claim for benefits,is modified to be effective August 16, 2006, and, as so modified, is sustained. The claimant is denied benefits with respect to the issues decided herein.

LEONARD D. POLLETTA, MEMBER MICHAEL T. GREASON, MEMBER"

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

An Appeal Board case discussing credibility is set forth here:

"Mailed and Filed: JULY 17, 2009

IN THE MATTER OF: Appeal Board No. 545733

PRESENT: TANYA R. DANIEL, EILEEN M. LONG CHELALES MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective October 5, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by CARRIER CLEARING SERVICES prior to October 5,2008, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing. The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and the employer. By decision filed March 30, 2009 (), the Administrative Law Judge sustained the initial determination.The claimant appealed the Judge's decision to the Appeal Board.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a driver's helper for about two years through October 4, 2008. He is not an alcoholic. The employer's rule prohibits the consumption of alcohol during working hours. A driver to whom the claimant was assigned complained that on October 2, 2008, the claimant had been drinking on the job.The claimant was not drinking while at work that day. The employer discharged the claimant because the employer believed that the claimant had been drinking on the job.

OPINION: The credible evidence establishes that the claimant was not drinking while in the performance of his duties on October 2, 2008. The claimant and his witness and the employer's witnesses have agreed on very little in their testimony. As the Administrative Law Judge decision stated, "Hearsay evidence cannot prevail against sworn testimony when there is nothing in the record tending to impeach the sworn testimony." (See Matter of Perry, 37 AD2d 367). However, "While credibility determinations by an ALJ are entitled to considerable weight, the Board is not bound thereby and is entitled to pass on issues of credibility." (See Matter of Donato, 176 AD2d 1102). We do not assess credibility between the claimant and the employer's witness over whether the claimant was warned in 2007 for a similar incident because such a warning would only be relevant if the claimant committed the final incident. Further, we do not assess credibility between the claimant and his witness and the employer's witness over whether the bottles found in the 2007 incident belonged to the claimant and whether the claimant made an admission to this effect because even if we were to conclude that the claimant had owned them and had admitted this to the employer's witness, such a history does not inexorably lead us to the conclusion that the claimant was drinking on the job during the final incident. Although the employer was represented by counsel at both hearings, and produced numerous witnesses, the employer did not produce one with firsthand knowledge of the final incident. The claimant is, thus, the only individual to give firsthand testimony concerning the final incident. His denial is credible, on this record, and, as a result, we have found that the claimant was not drinking while at work on October 2, 2008. Accordingly, we conclude that the claimant's actions do not rise to the level of misconduct.

DECISION: The decision of the Administrative Law Judge is reversed.The initial determination, disqualifying the claimant from receiving benefits effective October 5, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to October 5, 2008, cannot be used toward the establishment of a claim for benefits,is overruled.The claimant is allowed benefits with respect to the issues decided herein.

TANYA R. DANIEL, MEMBER EILEEN M. LONG CHELALES, MEMBER"

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NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

The leading decision from the Appeallate Division, Third Department on the issue of credibility is MATTER OF DI DONATO, 176 A.D.2d 1102 (3rd Dept 1991):

"Claimant was receiving benefits following her layoff by Manufacturer's Hanover Trust on January 27, 1988. During the time she was receiving benefits, she performed work at home for Publisher's Clearing House and submitted vouchers for payment of her compensation. She cashed the pay checks and included the amounts received as income on her tax reports. However, she failed to disclose these facts to the Commissioner of Labor. Claimant appealed the Commissioner's determination of ineligibility and overpayment based on the work done for Publisher's Clearing House. She and her daughter testified at the hearing that the daughter actually did the work and that claimant's name was used because the daughter was not eligible for home piece-work employment. An Administrative Law Judge (hereinafter ALJ) overruled the initial determination of disqualification made by the Commissioner of Labor, finding that claimant's testimony was credible. Upon the Commissioner's appeal, the Unemployment Insurance Appeal Board rejected claimant's contention that her daughter actually did the work, finding instead that claimant was not totally unemployed, that the overpayment was recoverable and that claimant had made willful misrepresentations to obtain benefits. Claimant has appealed.

Claimant contends that the questions of credibility are to be determined by the trier of facts, here the ALJ. While credibility determinations by an ALJ are entitled to considerable weight, the Board is not bound thereby and is entitled to pass on issues of credibility (Matter of Horton [Hartnett], 176 A.D.2d 1103 [decided herewith]). Judicial review is limited to ascertaining whether the Board's determination is supported by substantial evidence in the record, and if a determination is found to be so supported it must be affirmed since a reviewing court may not weigh or resolve conflicting evidence (Matter of Palomino v Bruno, 157 A.D.2d 730). Here, the documentary evidence in the record is sufficient to support the Board's determination regarding claimant's ineligibility.

Ordered that the decision is affirmed, without costs."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

The rules and regulations which guide the ALJ in hearings is found in 12 NYCRR 460:

"Section 461.4. Conduct of hearing.

(a) The administrative law judge shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. The administrative law judge shall conduct the hearing in such order and manner and with such methods of proof and interrogation as the judge deems best suited to ascertain the substantial rights of the parties. The administrative law judge may examine the parties and their witnesses. All parties shall be accorded full opportunity to present such testimony and to introduce documentary or other evidence as may be pertinent. At the commencement of the hearing, the administrative law judge shall identify all persons present and shall outline briefly the issues involved. No administrative law judge shall participate in any hearing in which the judge has an interest. Challenges as to the interest of an administrative law judge shall be decided by a chief administrative law judge or senior administrative law judge.

(b) All testimony shall be under oath or by affirmation and a verbatim record of the proceedings shall be made. In lieu of an appearance, the commissioner may submit written statements, records or other documents prior to or at the hearing subject to the provisions of subdivision (h) of this section. Such statements, records or documents shall not be the basis for the decision of the administrative law judge unless they have been received into the record pursuant to the provisions of subdivision (j) of this section. Upon consent of all parties, evidence supplemental to that introduced at the administrative law judge hearing may be made part of the record.

(c) Any party may appear in person or be represented by an attorney or agent. The administrative law judge may require such appearances as deemed to be necessary. All parties and their attorney or agent shall have the right to call, examine and cross-examine parties and witnesses. The have the right to offer relevant documents, records and other evidence which the administrative law judge may only accept into the record pursuant to the provisions of subdivision (j) of this section. Parties, or their attorney or agent shall have the right to request that subpoenas be issued to compel the appearance of relevant witnesses or the production of relevant documents, records or other evidence. They have the right to request an adjournment of the hearing for good cause shown. Translation services shall be provided to parties in accordance with established legal requirements. During the conduct of the hearing, in accordance with established legal requirements, there shall be a translation of the entire proceeding and of all relevant parts of documents introduced into evidence. At the end of the hearing, each party has the right to make a relevant statement to explain or clarify relevant points which may not have been adequately developed during the hearing.

(d) In the interest of the speedy administration of justice and without prejudice to the substantial rights of any party and for good cause shown and in the discretion of the administrative law judge, any issue in a case or any other issue related thereto may be heard and decided, though not specifically indicated in the notice of hearing. The administrative law judge must set forth on the record the reason for such action and must inform the parties of the intention to consider a new basis for denying or granting benefits, or to consider an issue not specifically indicated in the notice of hearing. The judge must inform the parties of their rights in this regard and must accord them an opportunity to request an adjournment to adequately prepare for such new basis or issue.

(e) Whenever a case is assigned to an administrative law judge the hearing or any adjourned hearing thereon shall continue before the same administrative law judge until a final disposition thereof, unless the case is transferred pursuant to section 461.7 of this Part.

(f) The chief administrative law judge, a senior administrative law judge or the administrative law judge may sever a case or may consolidate two or more cases where the interests of justice will be served and where there will be no prejudice to the substantial rights of any party.

(g) The parties, or their duly authorized representatives, may stipulate that a specified case involving an issue affecting in common certain claimants be designated as a test case and that the parties be bound by the administrative law judge's decision in such case, subject to the right of appeal. The stipulation shall be filed with the administrative law judge.

(h) Information from the department records and the case file shall be made available by the commissioner and by the administrative law judge to parties to the hearing or their representatives for the necessary preparation and presentation of the case. All parties shall have the right to call, examine and cross-examine other parties and witnesses with regard to such information.

(i) During the conduct of a hearing, any party may request that the hearing or parts thereof be closed to the public or request that documents or parts thereof be marked as confidential. When a request for closure or confidentiality is made, all present at the hearing shall be heard on the application. Upon a showing of good cause, the administrative law judge may grant such closure or confidentiality. If granted, the record and case file shall be marked to show that there is an order of closure or confidentiality, and that order shall continue in effect unless otherwise determined as a result of judicial review.

(j) In reaching a decision the administrative law judge shall consider and rely on only the evidence introduced at the hearing and those facts and law of which official notice has been taken. Official notice may be taken only in situations in which judicial notice might be taken in a court proceeding and in the same manner. The administrative law judge shall not consider, rely on, or refer to any document which has not been: (1) identified, with stated opportunity for any party to examine the document and comment, on the record; and (2) accepted for the record."

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

The ALJ and Appeal Board is first guided by Labor Law Section 622:

"Sec. 622. Rules governing hearings and appeals.

1. Rules and regulations. The manner in which disputes and appeals shall be presented before referees and the appeal board, respectively, and the conduct of hearings before referees and the board shall be governed by suitable rules and regulations established by the board. .

2. Evidence and procedure. At any hearing held as herein provided, evidence may be offered to support a determination, rule, or order or to prove that it is incorrect. The appeal board and the referees, in hearings and appeals under any provision of this article, shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure but may conduct the hearings and appeals in such manner as to ascertain the substantial rights of the parties. Hearings governed by this article may be closed and hearing transcripts may be redacted in accordance with applicable federal or state statutory and regulatory requirements governing information confidentiality and personal privacy, including, but not limited to, article six and article six-a of the public officers law."