Compelling reason for absence does not excuse misconduct
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Matter of Rivers v. Commissioner of Labor, ___A.D3d___(3d Dept. Oct. 7, 2010), is a tough unemployment decision. The law is settled that an employee who is terminated for misconduct is not eligible for unemployment. The law is also settled that being absent without leave is misconduct. What if it was for one day to visit your son who just returned from Iraq? That is still misconduct. As the court stated:
An unauthorized absence from work has been held to constitute misconduct, which can disqualify a claimant from receiving unemployment insurance benefits (see Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009]; Matter of Britter [Commissioner of [*2]Labor], 54 AD3d 461 [2008]). Inasmuch as claimant admitted that he had requested leave and been denied, however compelling his reason for the request, we are constrained to find that the Board's decision is supported by substantial evidence (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106).
Mitchell H. Rubinstein
.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com