Tuesday, September 23, 2014

Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits


Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits
Matter of Jackson (Commissioner of Labor), 2014 NY Slip Op 06237, Appellate Division, Third Department

The employer chose not to grant a probationary teacher [Probationer] tenure but did offer to extend Probationer’s probationary term for one year if she executed an agreement requiring her to "waive any rights, claims or causes of action" related to tenure or the extension of her probationary period.*  Despite being aware that she could lose her job if she did not sign the agreement, Probationer refused to do so. The employer then told her that it was not “certifying completion” of her probationary period so her employment was terminated.**

In response to Probationer’s applying for unemployment insurance benefits following her termination, the Unemployment Insurance Appeal Board ruled that Probationer's refusal to sign the agreement constituted “insubordination that rose to the level of misconduct" so as to disqualify her from receiving benefits.

The Appellate Division disagreed, holding that although “[r]efusing to comply with an employer's reasonable directive to sign a document can constitute insubordination” and thus support a finding of “disqualifying misconduct” for the purposes of eligibility for unemployment insurance benefit, Probationer’s situation did not constitute such misconduct under the circumstances.

The court explained that unlike situations in which an employee is asked, and refuses, to sign a document that was necessary to the operation of the employer's business, in this instance the employer chose not to grant Probationer tenure and, instead, offered her an extension of probation. In contrast to refusing to perform a job duty, here Probationer merely declined to enter into a new contract with the employer under the terms it offered.

The court pointed out that Probationer’s refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for the Board's denying her application for unemployment insurance benefits. However the employer did not contend that Probationer had quit her job but testified that Probationer had been terminated by the employer.

In any event, the Unemployment Insurance Appeals Board did not rely on the ground of “voluntarily leaving employment” in denying Probationer’s claim for benefits but rather based its denial on “misconduct” for alleged insubordination in refusing to agree to an extension of her probationary period as offered by the employer. This, said the Appellate Division was “factually incorrect” under the circumstances as the employer's termination letter indicated that Probationer was “based on the operation of law … not based on insubordination.”

Observing that “[r]efusing to renew a contract does not constitute employee insubordination or misconduct, the court explained that even if the employer would have been warranted in firing Probationer for not signing the extension agreement, her refusal to sign would not constitute disqualifying misconduct if she had a legitimate reason to refuse to do so. Finding that Probationer had not engage in any act of insubordination and, therefore, did not commit disqualifying misconduct, the Appellate Division ruled that “the Board's decision cannot stand.”

* The decision stated that Probationer “was concerned that those provisions would cause her to waive her rights to argue that the denial of tenure and proffered extension were retaliation for her pursuing a sexual harassment claim.”

** Education Law §2573 (1) provides that the employer must either [1] grant the teacher tenure, [2] terminate the teacher’s employment or [3] agree to an extension of the teacher’s probationary term once he or she has completed the three year probationary period.

The decision is posted on the Internet at:
.

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/

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. 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 DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

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 in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.