Absence due to incarceration

Absence due to incarceration
Karp v Comm. of Labor, App. Div., 3rd Dept., 262 AD2d 925
Matyjczuk v Delphi Automotive Sys., App. Div., 3rd Dept., 262 AD2d 847

Sometimes an employee cannot report to work because he or she is in jail. May the employee be terminated because of his or her inability to report to work because the incarceration? How far must the employer go to “accommodate” the employee’s incarceration? If terminated because of the incarceration, is the employee eligible for unemployment insurance benefits? These are some of the questions considered by the Appellate Division in the Karp and Matyjczuk cases.

The Karp decision

Susan Karp was dismissed from her position with the State Insurance Fund because she failed to “provide appropriate documentation regarding her unauthorized absence from work.” It seems that Karp had been arrested on May 27, 1998. She notified her supervisor that she could not report to work because she was in jail. Because she did not post, or arrange for, bail, Karp remained in jail.

The Fund wrote to Karp “acknowledging her arrest and informed her that because her absence from work was unauthorized, she was required to provide appropriate explanatory documentation by June 10, 1998.” Karp never replied to this letter. According to the decision, the Fund subsequently terminated her, deeming Karp to have “abandoned her employment.”

Former Section 4 NYCRR 5.3(d), of the New York State Civil Service Commission’s Rules for the Classified Service [repealed effective February 27, 1979] provided that a state employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position. This rule was held to violate the employee’s right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. Such a provision, however, has been held lawful if the parties had agreed to such a result through the collective bargaining process. Typically the courts will decline to void the provisions of such agreements except in cases involving the violation of a strong public policy.

The Unemployment Insurance Appeals Board disapproved Karp’s application for unemployment insurance, ruling that she was disqualified for benefits because she had been terminated as a result of her misconduct -- failing to respond to the letter that the Fund had sent to her.

The Appellate Division sustained the Board’s determination, pointing out that Karp conceded that she had been arrested and failed to post bail. It noted that the Unemployment Insurance Administrative Law Judge [ALJ] had asked Karp why she did not contact a bail bondsperson and she responded that “somebody said that they wouldn’t do it”. In other words she did not make any reasonable effort to be released from her incarceration.*

The Appellate Division said that it agreed with the Board that it was Karp’s “own willful or deliberate conduct [i.e., her failing to attempt to obtain bail] that rendered her unable to report to work.” This, coupled with Karp’s failing to respond to the letter sent to her, was deemed “disqualifying misconduct” for the purposes of claiming unemployment insurance benefits.


The Matyjczuk decision

The Appellate Division came to essentially the same conclusion in the Matyjczuk case -- failing to report to work because the employee was in jail under the circumstances present in this case constituted disqualifying misconduct.

Bob Matyjczuk was denied unemployment insurance benefits after he was dismissed by Delphi Automotive Systems.

Matyjczuk had been convicted of driving while intoxicated and was in jail from January 7, 1997 until September 5, 1997. Delphi initially allowed Matyjczuk to use his accrued vacation time and then granted him a 90-day leave of absence.

However, when this initial 90-day leave of absence expired on May 5, 1997, Delphi denied Matyjczuk’s request for a second leave of absence. It also refused to allow Matyjczuk to return to work under an approved county work release program because he had previously participated in a work release program during a prior incarceration.

Matyjczuk was unable to report to work upon the expiration of his leave of absence because he was still in jail. Delphi terminated him effective close of business May 5. Disqualified from receiving unemployment insurance benefits on the basis a finding that he was terminated for misconduct, Matyjczuk sued. An unsympathetic Appellate Division dismissed his appeal.

First the Court acknowledged that Matyjczuk “suffers from alcoholism.” It then noted the Snell v General Motors, 195 AD2d 746 and Opoka v Sweeney, 232 AD2d 718, decisions, cases which set out the proposition that alcoholism can excuse disqualifying misconduct in cases such as his if there is substantial evidence to show that:

1. The individual is an alcoholic;

2. The alcoholism caused the behavior leading to the individual’s discharge; and

3. The individual was available for and capable of work.

The Appellate Division said that Matyjczuk could not satisfy the third test -- being available and capable of work -- because his incarceration precluded him from being available for work. It rejected Matyjczuk’s argument that he would have been available for work if Delphi had “again afforded him the opportunity to participate in a work release program.” It agreed with the Unemployment Insurance Appeals Board that “the employer was not obligated to provide this accommodation a second time” and thus Matyjczuk could not satisfy all of the three elements essential to claiming he was eligible for an “exception” to his otherwise disqualifying misconduct.

The lesson here is that if an individual cannot report to work because he or she is in jail, the employer should attempt to determine the reason or reasons for the incarceration. It should then determine if it is possible and appropriate to make a reasonable effort to accommodate the employee’s situation. If, however, the employee fails to cooperate or if he or she has been provided with an “accommodation” related to an incarceration in the past, the employer is not required to undertake “heroic efforts” to continue the individual’s employment. Finally, unless a collective bargaining agreement so provides, a public employer may not deem an individual to have abandoned his or her position merely because he or she fails to report for work, with or without an explanation.

* When the ALJ asked her why she did not “more vigorously pursue help from her union following her termination,” Karp replied, “To tell you the truth, I really didn’t want to work there.”
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