An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits

An employee on leave from work due to a reasonable fear of domestic violence is not "unavailable" or unwilling to work for the purposes of eligibility for unemployment insurance benefits

Matter of Derfert (Commissioner of Labor), 2017 NY Slip Op 04016, Appellate Division, Third Department

To be eligible for unemployment insurance benefits, claimant must be "ready, willing and able to work." Further, whether a claimant is available for work ordinarily presents a question of fact for the Unemployment Insurance Appeal Board [Board] to determine and its decision will be sustained provided it is supported by substantial evidence in the record.

The uncontroverted evidence in this appeal from the Board's denial of claimant's application for unemployment insurance benefits for the period May 2, 2015 through June 7, 2015, was that claimant did not report to work, with the employer's approval, because a former boyfriend was physically and verbally abusing her. Such abuse included calling claimant on a daily basis and leaving threatening and disparaging voicemail messages and regularly sat in a car outside or near her home waiting for her to emerge.*

Although the Board ruled that claimant was ineligible to receive unemployment insurance benefits because she was not available for employment, the Appellate Division said that it disagreed with the Board ruling that claimant's leave of absence "necessitated by the actions of a perpetrator of domestic abuse rendered her legally unavailable for work."

The court, citing Labor Law §593(1)(b)(i), explained that the Legislature had provided that an employee may not be disqualified from receiving unemployment insurance benefits for separating from employment "due to any compelling family reason," which includes "domestic violence . . . which causes the individual reasonably to believe that such individual's continued employment would jeopardize his or her safety or the safety of any member of his or her immediate family."

The genesis of §593(1)(b)(i) was a ruling by a New Jersey appeals court that a woman who was forced to quit her job due to domestic violence was not entitled to collect unemployment benefits. The Appellate Division said that §593(1)(b)(i) indicated "the legislative intent remained to ensure that 'individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits.'"

The Board had, in this instance, rejected the claimant's application for benefits notwithstanding the claimant's uncontroverted testimony that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend.  

The Appellate Division disagreed with the Board's holding that an employee who takes a leave from work due to a reasonable fear of domestic violence, a "compelling family reason" under Labor Law §593(1)(b), is "unavailable" for or unwilling to work and is, therefore, ineligible for unemployment insurance benefits under Labor Law §591(2). The court said such a ruling "contradicts the intent underlying the protection afforded to domestic violence victims from disqualification for unemployment insurance benefits."

Accordingly, the court ruled the Board should not have found claimant to be ineligible for unemployment insurance benefits due to unavailability. It then reversed the Board's determination and remanded that matter to the Board "for further proceedings not inconsistent with this Court's decision."

* The decision notes that such abuse commenced after a "stay-away order of protection" expired and claimant had been unsuccessful in obtaining a new order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04016.htm

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Challenging Adverse Personnel Decisions - A 765 page electronic book [e-book] focusing on penalties imposed on public employees of New York State and its political subdivisions found guilty of misconduct or incompetence by hearing officers and arbitrators and the judicial review of such penalties. More information is available on the Internet at http://nypplarchives.blogspot.com.

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