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January 09, 2012

Resignation in anticipation of being served with disciplinary charges

Resignation in anticipation of being served with disciplinary charges
Claim of Cohen (Town of Brookhaven--Commissioner of Labor), 2012 NY Slip Op 00068, Appellate Division, Third Department

The decision explores the eligibility of an individual who resigned from his position when threatened with disciplinary action.

Citing Matter of Jimenez [New York County Dist. Attorney's Off. —Commissioner of Labor], 20 AD3d 843, the Appellate Division said that "A claimant 'who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct."

In this instance Brookhaven was preparing to file Civil Service Law §75 disciplinary charges against the employee unless some type of negotiated resolution was agreed upon or the employee resigned from the position.*

The employee resigned and applied for unemployment insurance benefits claiming that he felt he had no option but to leave his employment since disciplinary charges were imminent, that he did not believe he could prevail at a hearing and that he could lose his medical benefits.

The Unemployment Insurance Appeal Board ruled that employee was entitled to receive benefits provided that he did not engage in disqualifying misconduct and remanded the matter to the Unemployment Insurance Administrative Law Judge for “a further hearing on the misconduct issue.”** 

The Appellate Division sustained the Board's determination. Although the employer never actually filed before the employee resigned, the court ruled that “under the circumstances presented,” this does not establish that [the employee] voluntarily left his employment without good cause and thus was ineligible for unemployment insurance benefits."

* In some instances an employee threatened with disciplinary action unless he or she resigns does, in fact resign only to subsequently attempt to rescind his or her resignation claiming that it was coerced. In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals sustained the appointing authority’s refusal to allow Rychlick to withdraw his resignation that Rychlick claimed had been obtained under duress -- the threat of disciplinary action unless he resigned -- ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

** 4 NYCRR 5.3, which applies to officers and employees of the State as an employer, provides that in the event charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation. Many local civil service commissions have adopted a similar rule with respect to public employees under their respective jurisdictions.

The decision is posted on the Internet at:

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