Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

The Appellate Division affirmed the Unemployment Insurance Appeal Board’s decision that disqualified an applicant for unemployment insurance benefits based on its finding that, among other things, the applicant for such benefits had left his employment following misconduct unrelated to his work.

The applicant had resigned form his position "in lieu of termination" following his arrest on multiple counts of aggravated harassment* in connection with his allegedly having made harassing phone calls to various women in the course of activities “unrelated to his employment."

The Appeal Board had rejected the applicant’s claim that he was entitled to benefits because his termination “stemmed from activity unrelated to his employment.”

The Appellate Division ruled that "[m]isconduct committed during nonworking hours, which raises serious questions as to a worker['s] integrity, bears a relationship to his [or her] work within the meaning of . . . the Labor Law."

* The applicant ultimately entered a plead guilty to two of the charges filed against him, which were later reduced to harassment in the second degree.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02934.htm

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA has posted a new enforcement memo online focusing on "Employer Safety Incentive and Disincentive Policies and Practices".

According to the HRTraniningCenter.com, OSHA views as suspect any incentive or disciplinary programs linked to worker accidents resulting in injury or illness. In addition, OSHA may prosecute employers whose programs violate worker whistleblower rights under Section 11(c) of the Occupational Safety & Health Act of 1970.

A 90-minute training session via on the new rules via Audio Conferencing is being offered by HRTrainingCenter.com on April 24, 2012 from 1:00 to 2:30 p.m., Eastern Standard Time.

Additional information concerning this training session is available on the Internet at: http://hrtrainingcenter.com/showWCDetails.asp?TCID=1010681&RID=1010687

Disclosure of public information or records to one is disclosure to all

Disclosure of public information or records to one is disclosure to all

The basic rule when considering a Freedom of Information Law [FOIL] request is that the theory underlying FOIL is that all public documents are subject to disclosure.

The release of some public records, however, may be limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

However, the custodian of the records may elect to deny access to documents otherwise subject FOIL absent a FOIL request or if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

Significantly, there is no bar to providing information pursuant to a FOIL request, or otherwise, even if it falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Indeed, a FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization world be required to file a FOIL request to obtain the information or record.

Further, it appears that once the information or record sought is provided to one party, it may not be denied to another party.

On this point the State’s Committee On Open Government advised a Town’s attorney that there was no legal basis to withhold the information requested pursuant to a newspaper’s FOIL request after it was disclosed to another newspaper.

In this instance Robert Freeman, the Committee’s Executive Director, stated that, in his view, “If a record is disclosed to one news media organization [by the custodian of the record]…it should be disclosed to any news media or for that matter any person requesting it.” Notwithstanding this advisory opinion, the Town’s attorney refused to supply the document demanded in the FOIL request submitted to the Town’s clerk.

Once possible exception: if the document demanded was provided pursuant to a court order or a subpoena, this may not constitute “disclosure” within Mr. Freeman’s meaning.

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

Please click on the caption to access report posted on the Internet.

DiNapoli: Syracuse Woman Sentenced for Stealing from the New York State Retirement System

Syracuse resident Kathleen Prince was sentenced last week in Onondaga County Court for stealing more than $29,000 from the New York State and Local Retirement System, marking the end of a joint investigation by State Comptroller Thomas P. DiNapoli and Onondaga County District Attorney William J. Fitzpatrick.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

The Town of Batavia;

The Town of German Flatts;

The Village of Hammondsport;

The Village of Hempstead;

The Village of Ilion;

The Town of Lewisboro;

The Town of Orangeville;

The Round Lake Hose Company No. 1, Inc.; and,

The Town of Waverly.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012 Click on title to access item.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012

Click on the web site indicated to access item.


1. Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

2. A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

http://publicpersonnellaw.blogspot.com/2012/03/member-of-board-testifying-at-civil.html

3. If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

4. Some procedural defects that bar the vacating of the arbitrator’s award

http://publicpersonnellaw.blogspot.com/2012/04/some-procedural-defects-that-bar.html

5. Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

http://publicpersonnellaw.blogspot.com/2012/04/former-employees-law-suit-alleging.html