Processing an application for unemployment insurance benefits

Processing an application for unemployment insurance benefits

Matter of Weinstein (City of New York Dept. of Citywide Admin. Servs.--Commr. of Labor), 2018 NY Slip Op 03576, Appellate Division, Third Department

Guidelines applied by the NYS Department of Labor in determining if a claimant was entitled to receive unemployment insurance benefits include:

1. The determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve.

2. There must be substantial evidence in the record to support the Board's decision.

3. A false representation on an employment application regarding whether a claimant has ever been convicted of a crime can constitute disqualifying misconduct on a claim for unemployment insurance benefits.

Fred Weinstein [Claimant] filed a claim for unemployment insurance benefits. Claimant had commenced his employment as a sanitation worker for the City of New York on September 15, 2014. His employment was terminated in September 2015 after it was discovered that he had provided false information on his employment application. Claimant's application for unemployment insurance benefits was initially denied by the Department of Labor on the ground that his employment was terminated for misconduct, but an Administrative Law Judge [ALJ] overturned the denial following a hearing and awarded the Claimant benefits.

The Unemployment Insurance Appeal Board [Board] had adopted the finding of the ALJ that Claimant had falsified his job application by answering no when asked if he had ever been convicted of a felony or misdemeanor when, in fact, he had been previously convicted of two felonies and six misdemeanors.

The Board concluded, however, that Claimant's false representation did not disqualify him from receiving unemployment insurance benefits due to the length of time that the employer took in taking action against him and the City's Department of Citywide Administrative Services [Employer] appealed.

The Appellate Division noted that the record was "not entirely clear" with respect to when the Employer first learned of Claimant's criminal history found that the Employer was aware no later than March 2015 that Claimant had falsely represented that history, and Claimant was terminated in September 2015.

The individual who investigated Claimant's application for employment for Employer testified that the length of time between the filing of the application and the termination was not excessive because of the large amount of applications for employment for the City of New York that must be investigated and the Employer's policy to provide an opportunity for the employee/applicant to respond to any adverse information uncovered by the investigation before taking action.

The Appellate Division held that the length of time taken by the Employer prior to its taking action to terminate Claimant, under these circumstances, should not have been a factor in determining whether Claimant's false representations constituted disqualifying misconduct for the purposes awarding Claimant unemployment insurance benefits.

Finding that Board's decision lacked substantial evidence to support its  determination that Claimant was entitled to receive unemployment insurance benefits, the Appellate Division ruled that the Board's determination "must be reversed."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03576.htm

Due process procedure for mental disability leave set

Due process procedure for mental disability leave set

Laurido v. Simon, 489 F. Supp. 1169

Section 72 of the Civil Service Law authorizes an appointing authority to place an employee on leave of absence if the employee is certified not mentally fit to perform the duties of the position. Judge Haight of the U.S. District Court, Southern District of New York (Matter of Laurido) after holding that a state employee was not provided the required due process in connection with his being placed on leave pursuant to Section 72, prohibited placing employees on such leave unless the following procedural steps are followed:

        *"Written notice of the facts relied upon by the appointing authority to suggest that the employee is not mentally fit to perform the duties of his or her position in advance of the employee's examination by an employer's physician.

        *"Written notice of the physician's findings

        *"Written notice of the appointing authority's determination with respect to the involuntary leave, and the reasons and facts in support thereof.

        *"Written notice of the employee's right to appeal the appointing authority's determination and  the procedures for perfecting such appeal.

        *"Pre-hearing release to the employee, or his or her authorized representative, of the employee's medical records and related data, upon written request of the employee or the employee's personal physician or attorney, where authorized.

        *"Upon timely request, an adversarial type hearing, before an impartial decision maker, at which hearing the employee may be represented by counsel and may present evidence on his or her own behalf.

        *"Written notice of the hearing decision, together with a statement of the reasons and facts relied upon in support thereof."

Judge Haight noted that there might be compelling circumstances which would require the immediate suspension of an employee for the safety of the employee, the employee's co-workers or the public, or for the proper conduct of business, indicating that under such circumstances an immediate leave of absence may be directed but the procedures described above must be provided promptly thereafter. The Court also indicated that should the employee succeed in reversing the initial determination, reinstatement together with back pay and the restitution of leave credits would be required. It should be noted that alcoholism and substance abuse are defined as mental disabilities in the State's Mental Hygiene Law and Human Rights agencies have viewed such conditions as a "disability".

The decision is posted on the Internet at:

https://law.justia.com/cases/federal/district-courts/FSupp/489/1169/2394671/

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]

Matter of Enman (New York City Dept. of Educ. -- Commissioner of Labor), 2018 NY Slip Op 03416, Appellate Division, Third Department

Labor Law §590(11), which is analogous to Labor Law §590(10) dealing with teachers and other educational professionals, bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, and in other cases addressing this issue, the courts have stated that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The New York City Department of Education challenged the Unemployment Insurance Appeal Board's determination that Shaniqua Enman, who worked as a per diem substitute paraprofessional for the New York City Department of Education, had not received a letter of reasonable assurance within the meaning of Labor Law §590(11) between two academic periods.  

Ms. Enman worked at schools within the New York City School District and was registered to receive assignments through the SubCentral Registry, an automated system for filling vacancies. During the 2015-2016 school year, Ms. Enman worked 161 days of the 179 days that were in the school year. She received 153 of her assignments directly from administrators at the schools where she worked and the remaining eight assignments through the SubCentral Registry.  

In June 2016, NYCDOE sent Ms. Enman a communication, which it contended constituted "a letter of reasonable assurance," indicating that for the 2016-2017 school year  it anticipated the same amount of work for her as a per diem substitute paraprofessional as in the previous year on substantially the same economic terms and conditions.

Notwithstanding this letter, Ms. Enman filed a claim for unemployment insurance benefits and the Department of Labor found her entitled to receive such benefits. This  determination was later upheld by an Administrative Law Judge following a hearing.

On appeal, the NYCDOE objected to Ms. Enman's receipt of unemployment insurance benefits on the ground that it had provided her with a letter of reasonable assurance pursuant to Labor Law §590(11). The Unemployment Insurance Appeal Board overruled NYCDOE's objection and sustained the Administrative Law Judge's decision. NYCDOE appealed the Board's ruling.

The Appellate Division disagreed with the Board's decision, noting that the Board had initially found that the June 2016 letter sent by the NYCDOE to Ms. Enman constituted a reasonable assurance of continued employment for the 2016-2017 school year. But, said the court, instead of ending the inquiry at that point, the Board "went on to ascertain whether the reasonable assurance was bona fide in light of the testimony presented at the hearing."

The Board ultimately found that the testimony of the NYCDOE's witness was not competent with respect to assignments that Ms. Enman obtained through means other than the SubCentral Registry and declined to count such assignments in projecting those that would be made available to her during the 2016-2017 school year. Rather, it decided that Ms. Enman would have to be offered 145 assignments during the 2016-2017 school year in order to meet the 90% threshold, and considering that she had obtained most of her previous assignments through direct contact with school administrators, the Board concluded that the evidence was insufficient to establish that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment.*

The Appellate Division ruled, based on its review of the record, the Board's decision was not supported by substantial evidence. The court explained that, in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, an interpretation that finds no support in the statute or case law.

Further, said the court, "the Board erroneously failed to include in its projection the assignments that [Ms. Enman] obtained directly from school administrators during the 2015-2016 school year, as these assignments were reflected in the SubCentral Registry after [she had] accepted them."

The decision indicates that the SubCentral Registry identified paraprofessionals who were working as well those who were not, a critical factor in ascertaining those paraprofessionals who were available and would be likely to accept future assignments. In the words of the Appellate Division, "As long as a paraprofessional was registered in the SubCentral Registry, as was claimant, his or her assignments and/or availability were monitored" and "the 153 assignments that [Ms. Enman] obtained directly through school administrators during the 2015-2016 school year exceeded the 145 needed to satisfy the 90% threshold and should have been counted in determining whether she received a reasonable assurance of continued employment."

The court also noted that the NYCDOE's witness testified that no changes were anticipated with respect to the budget, salary or number of students and paraprofessionals needed for the upcoming school year and further stated that 14% of jobs go unfilled, providing ample opportunity for substitutes to find openings.

In view of the foregoing, opined the Appellate Division, the record establishes that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment within the meaning of Labor Law §590(11), thereby precluding her from receiving Unemployment Insurance Law benefits.

* The Appellate Division commented that "The Board appears to have erroneously referenced the 2015-2016 school year in its decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03416.htm

Best practices for state and local government disaster recovery planning to protect its electronic data

Best practices for state and local government disaster recovery planning to protect its electronic data

Governing is offering this complimentary webinar addressing computer and data security.  The webinar, to be held on May 24, 2018 at 2 p.m. ET and at 11 a.m. PT, will address: 

> How government agencies can meet growing employee and citizen expectations for access to online services while ensuring data is well-protected.

> How to maintain control, visibility and access to data.

> How to confirm strong data recovery capabilities are in place should the unexpected occur.

> How the city of Sarasota, FL, fought back after a virus encrypted 160,000 files and cyber criminals demanded $33 million in Bitcoin as ransom.

Register on line at https://cms.erepublic.com/common/resources?appCore=/common/forms/ajax_form/100106&product_id=100106

Questions? Contact Brittany Roberts at Governing, (800) 940.6039 ext. 1388 or e-mail Ms. Roberts at: broberts@governing.com
 

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

OATH Index No. 584/1

A New York City Emergency Medical Technician [EMT] twice struck a handcuffed, emotionally disturbed patient after the patient had spat at her. The EMT also failed to report the incident to a supervisor as required.

OATH Administrative Law Judge Kevin F. Casey found that the EMT was provoked but ruled that such provocation did not excuse the EMT's action.

Although the ALJ credited EMT’s testimony that she did not intend to injure the patient and found the act to be an aberration, Judge Casey concluded that "A very substantial penalty short of termination, resulting in loss of pay for two months, would give appropriate weight to the mitigating circumstance, but would also make clear to [the EMT], her colleagues, and the public that striking an emotionally disturbed patient and failing to report it are unacceptable." 

The ALJ recommended the imposition of a sixty-day suspension without pay with credit for pre-hearing suspension time served as the EMT's penalty.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-584.pdf