Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Rubscha (Commissioner of Labor), 2013 NY Slip Op 02609, Appellate Division, Third Department

Robert F. Rubscha’s employer had instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. Although Rubscha, who had been employed for 29 years, had no information that his job would be eliminated, he nevertheless accepted the severance package offered by his employer out of concern that he or his coworkers would be laid off.

When Rubscha filed for unemployment insurance benefits the Unemployment Insurance Appeal Board ruled that Rubscha was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

The Appellate Division sustained the Board’s determination, explaining that leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment.

In addition, the court noted that substantial evidence supported the Board's finding that Rubscha received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02609.htm

In which nations are the readers of NYPPL located?

In which nations are the readers of NYPPL located?

Following up on the report that Washington University School of Law is now offering an online Legal English Class for Foreign Lawyers, in response to a number of inquires from readers as to the number of individuals outside the United States that access NYPPL, "Google Statistics" reports that in the last thirty [30] days, in addition to its 14,666 readers in the United States, this LawBlog had readers in the following nations:

France	2,778
Germany	392
Russia	348
United Kingdom	289
Ukraine	220
China	124
Poland	90
Israel	86
Turkey	72

Terminated employee’s reliance on the Doctrine of Legislative Equivalency in challenging her dismissal held misplaced

Terminated employee’s reliance on the Doctrine of Legislative Equivalency in challenging her dismissal held misplaced

The Doctrine of Legislative Equivalency sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

Among the arguments advanced by the Petitioner in this Article 78 proceeding challenging her termination was that her dismissal violated the Doctrine of Legislative Equivalency.

The Appellate Division, however, rejected Petitioner’s contention that the agency's determination violated the Doctrine of Legislative Equivalency, “without merit,” as the position from which she had been removed had not been abolished, implying that she had not been "laid off" withing the meaning of Civil Service Law §§80 or 80-a.* 

Turning to another element in this case, according to the Appellate Division’s ruling, Petitioner was terminated from her position without first being accorded any "quasi-judicial evidentiary hearing."**  Accordingly, said the court, its review was subject to the standard set out in §7803(3) of the Civil Practice law and Rules:

[1] Was the determination was made in violation of lawful procedure;

[2] Was the determination affected by an error of law;

[3] Was the determination arbitrary and capricious; or

[4] Was the determination an abuse of discretion.

Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that pursuant to this standard courts will "examine whether the action taken by the agency has a rational basis" and will overturn that action only "where it is taken without sound basis in reason' or regard to the facts." Further, explained the court, "courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise," citing Peckham v Calogero, 12 NY3d at 431.

The Appellate Division ruled that Petitioner failed to meet her burden of demonstrating that the determination made by the County of Nassau Department of Assessment terminating her employment lacked a rational basis or was arbitrary and capricious.

As to Petitioner’s contention that the agency's determination violated the Doctrine of Legislative Equivalency, the court rejected this argument as “without merit,” as the position from which she had been removed had not been abolished.

* The Attorney General has concluded that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7).

** Presumably Petitioner was not entitled to a pre-termination disciplinary hearing otherwise available pursuant to the Civil Service Law, a collective bargaining agreement or so other statutory procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02580.htm