July 7, 2016

An individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony


An individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony
Matter of Valvo (Commissioner of Labor), 2016 NY Slip Op 05017, Appellate Division, Third Department

Labor Law §593 (4) provides that a person who loses his or her employment as a result of an act constituting a felony in connection with such employment is disqualified from receiving benefits for 12 months following the end of such employment. As the Court of Appeals explained in Matter of Sinker [Sweeney], 89 NY2d 485, "a felony is 'in connection with' employment for purposes of Labor Law §593(4) if it results in breach of a duty, express or implied, [a] claimant owes an employer."

Nicholas Valvo, a sanitation worker for a municipal employer, was arrested on charges of grand larceny in the third degree and scheme to defraud in the second degree. His employment with the municipality was terminated on February 28, 2013 based upon his disciplinary history and the arrest. He then applied for, and received unemployment insurance benefits, including regular and emergency unemployment insurance compensation benefits, totaling $16,488.

Valvo subsequently resolved the criminal charges filed against him by pleading guilty to two counts of grand larceny in the second degree and grand larceny in the third degree.

The Department of Labor, however, issued an initial determination finding that, among other things, that Valvo was disqualified from receiving unemployment insurance benefits under Labor Law §593(4) because he had lost his employment as a result of acts constituting a felony. The Department charged him with a recoverable overpayment of the unemployment insurance benefits he had received and assessed a penalty of $2,473 due to his willful misrepresentations to obtain such benefits.The Unemployment Insurance Appeal Board sustained the Department’s decisions and Valvo its ruling.

The Appellate Division upheld the Appeal Board’s decision, explaining that Valvo’s “larcenous conduct raised serious questions as to his integrity and suitability for municipal employment … given the detrimental impact his continued employment could have had upon the public's trust in municipal employees.” Accordingly, said the court, it saw no reason to disturb the Board's determination that Valvo’s misconduct was sufficiently connected to his employment as to disqualify him for unemployment insurance benefits.

The decision is posted on the Internet at:

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