March 22, 2019

Unemployment insurance benefits unavailable to claimant found to have engaged in disqualifying misconduct


§75 of the Civil Service Law permits the appointing authority to place an officer or an employee served with disciplinary charges on leave without pay for up to 30-days pending the completion of the disciplinary hearing and the determination of the penalty to be imposed in the event the officer or the employee is found guilty of one or more of the charges and specifications filed against him or her.* This absence is deemed "disqualifying misconduct" for the purposed of eligibility for unemployment benefits associated with such absence and thereafter.

An individual [Claimant] employed by a municipality was alleged to have committed numerous violations of her employer's code of conduct by, among other things, failing to report to work on time, being absent without authorization, sleeping and lounging during her shift and refusing to comply with her supervisor's directives. 

The employer placed Claimant on a 30-day suspension without pay and served Claimant with disciplinary charges pursuant to Civil Service Law §75. The penalty proposed by the employer: Termination.

Claimant applied for unemployment insurance benefits during the period of her 30-day suspension without pay. The Department of Labor initially granted her application but subsequently issued a revised determination finding, among other things, that Claimant was not eligible to receive benefits during this time period "because she had engaged in disqualifying misconduct."

Following a hearing, an Unemployment Administrative Law Judge upheld the Department of Labor's revised determination that found Claimant ineligible for benefits because of her disqualifying misconduct and ruled, among other things, that due to Claimant's misconduct, the remuneration paid to her prior to the effective date of her  suspension without pay could not be used to establish a valid original claim for unemployment insurance benefits.** The Unemployment Insurance Appeal Board sustained the Administrative Law Judge's decision in this regard, and Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's ruling. The court noted that a claimant's excessive tardiness, absenteeism and insubordination has been found to constitute disqualifying misconduct for the purpose of determining an individual's eligibility for unemployment insurance benefits. Further, said the court,  "The many instances of [Claimant's] problematic behavior and failure to abide by the employer's code of conduct are well supported by the record."

The court noted that while Claimant admitted to certain acts of misconduct, with respect to her alleged "sleeping during her shift" Claimant contended that she suffers from a disability that interfered with her ability to work during her night shift. However, noted the Appellate Division, Claimant failed to produce medical proof at the hearing to substantiate this claim.

The Appellate Division concluded that substantial evidence supported the Board's decision finding that the remuneration paid to Claimant prior to her placement on a 30-day suspension without pay could not be used to establish a valid original claim.

* In the event an officer or employee is found not guilty of all charges and specifications he or she is reinstated to the position with back salary and benefits. In the event the officer or employee is found guilty, the time during which an officer or employee was suspended without pay may be considered as part of the penalty.



** Claimant was still employed by the employer on the date her Unemployment Insurance hearing was conducted  as the disciplinary action being taken against her pursuant to Civil Service Law §75 was then still pending. 

The decision is posted on the Internet at:

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