Thursday, May 24, 2012

Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits


Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2012, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Kean v. Commissioner of Labor, ___A.D.3d___(3d Dep't. March 15, 2012), is an interesting case as it discusses voluntary separations in relation to entitlement to unemployment. As the court explains:

 "Voluntarily separating from one's employment to accept a severance or early retirement package when continuing work remains available has been held not to constitute good cause for leaving employment" (Matter of Lucht [Commissioner of Labor], 49 AD3d 1048, 1049 [2008]; see Matter of Cammisa [Commissioner of Labor], 38 AD3d 1146 [2007]). Here, claimant testified that she was capable of working, had not been threatened by her employer and had not been advised by a physician to leave her job.

Even if claimant quit because she assumed that she might be terminated in the future, leaving a job in anticipation of discharge is not considered to be a departure for good cause under these circumstances (see Matter of Carcaterra [Association for Computing Machinery, Inc.—Commissioner of Labor], 90 AD3d 1389, 1390 [2011]).

Inasmuch as there is substantial evidence supporting the Board's ruling, it will not be disturbed (see Matter of Cammisa [Commissioner of Labor], 38 AD3d at 1146).


NYPPL comments:

N.B. Submitting a resignation in anticipation of, or in lieu or settlement of, a disciplinary action may have other unintended consequences. For example, typically applications for competitive examination for  employment with the State or a political subdivision of the State include the following questions:

Yes [ ] No [ ]  Were you ever discharged from any employment except for lack of work for funds, disability or medical condition?

Yes [ ] No [ ]  Did you ever resign from any employment rather than face discharge?

If you answered YES to any of these questions, provide details under REMARKS on Page 3. Your failure to answer any of these questions or to provide details will significantly delay any determination concerning your qualifications and may deprive you of potential employment opportunities.

The State Department of Civil Service or a local civil service commission may disqualify an individual seeking an appointment to a position in competitive class of the classified service pursuant to Civil Service Law §50.4 subdivisions (e), (f) or (g), which subdivisions are set out below:

(e) who has been dismissed from a permanent position in the public service upon stated written charges of incompetency or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency; [emphasis supplied] or

(f)  who has intentionally made a false statement of any material fact in his application; or

(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment.



Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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