Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Matter of Welsh (Commissioner of Labor), 2016 NY Slip Op 03042, Appellate Division, Third Department

One basis for disqualifying an applicant for unemployment insurance benefits is a determination that the individual left his or her employment without good cause.

Medina Welsh testified that in the course of her being considered for a promotion she submitted a falsified General Education Development certificate to the employer and then, “within minutes,” confessed the falsification to her supervisor. The supervisor warned Welsh that “she could be fired for such conduct.”Welsh then testified that she had submitted her resignation “because she did not want to have a termination on her record and hoped to be able to procure a job reference from the employer.”

The Unemployment Insurance Appeal Board denied Welsh's claim for unemployment insurance benefits and Welsh appealed the Board's ruling. The Appellate Division, however, sustained the Board’s determination, explaining that “quitting [one’s employment] in anticipation of discharge does not constitute good cause for leaving employment.”

Other court rulings sustaining the Unemployment Insurance Appeal Board’s denial of unemployment insurance benefits based on its finding that the claimant for such benefits did not leave his or her employment for good cause include:

Avoiding disciplinary action: Claimant’s election to accept the employer’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct, [Williams v NYC General Services, 256 AD2d 792].

Lack of valid license: The termination of a teacher from his or her position due to the lack of a valid teaching certificate did not constitute leaving one’s employment for good cause, [Matter of Duncanson (Commissioner of Labor), 115 AD3d 1106].

Harassment: Resignation from a position based on what the Appellate Division characterized as the employee's “perceived religious harassment” without first giving the employer an opportunity to investigate the matter, [Matter of Katz (Commissioner of Labor), 122 AD3d 993].

Job dissatisfaction: In Matter of Costello, 268 AD2d 845, the Appellate Division ruled that “dissatisfaction with one's employment, including assertions of being overworked, does not constitute good cause for leaving employment.”

Retirement incentive: 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), 105 AD3d 1217].

Personal reasons: Claimant’s reasons for submitting his resignation  were found to be "personal and noncompelling," [Quintana v NYC Police Department, 297 A.D.2d 857].

Dissatisfaction with employer's business operations: “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns,” [Matter of French v Town of Lyndon, 79 AD3d 1515].

Resigning in anticipation of a layoff: Leaving one’s employment in anticipation of being laid-off is not leaving for good cause for the purposes of claiming, unemployment insurance benefits, [Matter of Thesing (Commission of Labor), 111AD3d 1015]. 

Provoked discharge:  A finding that the employee provoked his or her dismissal. In Matter of Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885, the Appellate Division said that a "Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]."

Resignation to accept other employment:  Claimant had a valid offer of employment at the time he tendered his resignation but this offer of employment was subsequently rescinded by the prospective employer after it learned of Claimant’s arrest for “driving while ability impaired” and Claimant’s former employer would not allow him to withdraw or rescind his resignation, [Matter of Bennett (Commissioner of Labor), 106 AD3d 1359].

In contrast, leaving employment to relocate to another state in order to remain with one’s family typically will not disqualify an individual for unemployment insurance benefits,  [Rodriguez v Commissioner of Labor, 256 AD2d 768].

The Welsh decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03042.htm

Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal

Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal 
Source: Office of the Governor

Governor Andrew M. Cuomo appointed Ruth Hassell-Thompson as Special Advisor for Policy and Community Affairs of New York State Homes and Community Renewal. She will begin her new role in July 2016.

Hassell-Thompson has served in the New York State Senate since 2000. She is also a former City Council President and Acting Mayor of Mount Vernon, having been first elected to the City Council in 1993. She is also a retired nurse for Mount Vernon Hospital, specializing in pediatrics and substance abuse counseling and the founding President and CEO of “The Gathering,” a volunteer-staffed women’s center in Mount Vernon that provides counseling and support services, and has also worked extensively with individuals impacted by HIV/AIDS.

Prior to holding an elected office, she was President/CEO of Whart Development Company, Inc., a real estate development company that also provided consultant services to small and developing businesses. She was also the Executive Director of the Westchester Minority Contractors Association, helping to bring opportunities for growth and economic development to minority- and women-owned businesses in the region. Previously, she led the Westchester Community Opportunity Program, which provided medical, social and related support services to local residents in need.

Hassell-Thompson is the recipient of two Honorary Doctorate degrees; Mercy College, Doctor of Humane Letters; and Eastern Theological Consortium, Faculty of Arts and Sciences, Christ Theological Seminary, Doctor of Humanities. She is an alumna of Bronx Community College.

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Cruz v Buffalo Bd. of Educ., 2016 NY Slip Op 03034, Appellate Division, Third Department

The New York State Workers’ Compensation Board requires that a claimant for benefits have “an attachment to the labor market” if he or she is seeking to receive partial disability benefits when he or she cannot perform the normal duties of his or her position but is able to perform other types of work.*

Such a claimant can maintain “an attachment to the labor market” by [1] making a diligent search for employment that he or she can perform notwithstanding the disability, [2] being employed in a position that is within his or her medical limitations such as working part-time or performing “light-duty” work or [3] self-employment. The entity paying the benefits may require the claimant to maintain appropriate records to demonstrate his or her “attachment to the labor market.”

The claim for workers’ compensation benefits filed by Edelmiro Cruz illustrates the application of the attachment to the labor market requirement.

Cruz, an assistant principal at a Buffalo City School District elementary school, suffered work-related injuries in May 2011 and was awarded workers' compensation benefits until he returned to work in August 2011. Cruz was terminated in February 2012 and subsequently applied for additional causally related lost earnings. The Buffalo City School District, a self-insured employer and its third-party administrator [Buffalo] controverted Cruz’s claim and raised the issue of his attachment to the labor market.Buffalo also alleged Cruz had made misrepresentations regarding his search for work.

A Workers' Compensation Law Judge denied benefits, finding that, due to a lack of a sufficient effort to find work, Cruz had voluntarily removed himself from the labor market. In addition, the Law Judge found that Cruz had made misrepresentations concerning his search for work and thus had violated Workers' Compensation Law §114-a. Cruz was disqualified from receiving further benefits.**

The Workers' Compensation Board, however, concluded that Buffalo had not submitted sufficient evidence to prove that Cruz had violated §114-a. Further, while the Board affirmed the Law Judge's determination that Cruz had voluntarily removed himself from the labor market following his termination, the Board also found that Cruz “had reattached to the labor market in February 2013.”

The Board restored the case to the calendar to address the issue of Cruz's reduced earnings subsequent to February 2013 and Buffalo appealed.

The Appellate Division affirmed the Board’s action explaining that "A claimant must demonstrate attachment to the labor market with evidence of a search for employment consistent with his or her medical restrictions" and the Board's determination as to whether a claimant has demonstrated an attachment to the labor market will be sustained if supported by substantial evidence.

In this instance medical evidence in the record indicated that Cruz, as a result of his injuries, could only sit or stand for no more than two hours a day and he could not lift more than 20 pounds. In addition Cruz had testified that [1] he began using the services of the Office of Vocational and Educational Services for Individuals with Disabilities [VESID] in January 2013; [2] he had obtained a part-time job at an auto parts store in February 2013, (and was working five hours a week at the time of his testimony); [3] he was training for a management position that offered more hours, and the store was willing to accommodate his "restrictions;" and [4] he was still searching for other work with a VESID job counselor.

Based upon the foregoing, said the court, the Board's decision that claimant had reattached to the labor market as of February 2013 is supported by substantial evidence.

Addressing Buffalo’s contention that Cruz made “a material misrepresentation in violation of Workers' Compensation Law §114-a,” the Appellate Division again said that the Board's determination with respect to this issue will not be disturbed if supported by substantial evidence.

Buffalo had relied on the report and testimony of a vocation counselor. The counselor testified that she had contacted 34 companies by telephone with which Cruz reported that he had filed an application for employment between February 2012 and February 2013. Although the counselor confirmed that two of the companies had received an application from Cruz, she also testified that 17 companies either did not respond or could not verify whether or not they had received an application and the counselor conceded that Cruz could have applied for employment with them.

Further, the Board noted that the counselor did not report the name of the individuals she had spoken with and concluded that, although Cruz had not presented sufficient evidence to establish that he had remained attached to the labor market during the period in question, there was a lack of credible evidence that he had knowingly made a false statement or misrepresented a material fact in order to obtain benefits.

As "the Board is vested with the discretion to evaluate witness credibility and to weigh conflicting evidence," the Appellate Division ruled that Board's decision that Buffalo had not met it burden of proof with respect to its allegation that Cruz’s violated §114-a of the Workers' Compensation Law was supported by substantial evidence.

* A claimant for workers’ compensation benefits temporarily totally disabled is deemed unable to perform any work and is not required to maintain “an attachment to that labor market” while so temporarily totally disabled. An individual found permanently totally disabled is not required to maintain an attachment to the labor market in any event.

** Workers' Compensation Law §114-a provides for the disqualification of an individual for worker’s compensation benefits in the event he or she has made a false statement or representation in applying for such benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03034.htm

Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate

Failing to seek a court order staying an arbitration precludes the objecting party from subsequently contending that there was no valid agreement to arbitrate

Ruiz v County of Rockland, 2016 NY Slip Op 02999, Appellate Division, Second Department

Carlos Ruiz was terminated from his position with the County of Rockland. Ruiz, through his employee organization, demanded that the matter of his termination be submitted to arbitration under color of terms set out in collective bargaining agreement (CBA) between the County and United Federation of Police Officers, Inc., Local 613, [Union], of which Ruiz was a member. 

Rockland did not apply for a court order staying the arbitration although it sent letters to Ruiz, the Union and the assigned arbitrator indicating that “it refused to participate in an arbitration proceeding.”  Following the County's refusal, Ruiz and the Union [Petitioners] commenced an Article 75 proceeding to compel the County to arbitrate Ruiz's termination grievance in accordance with the terms of the CBA. The Supreme Court granted the petition and the County appealed the court’s ruling.

The Appellate Division sustained the Supreme Court’s decision explaining that the County's “failure to apply to stay arbitration precludes it from now contending that the CBA does not constitute a valid agreement to arbitrate” the issue, rejecting the County’s argument that the disciplinary procedure outlined in the CBA does not entitle Ruiz to grieve his termination through arbitration. The issue of whether Ruiz's termination was a type of disciplinary action subject to arbitration under the CBA “is a matter of contract interpretation and application to be resolved by the arbitrator.”

Why it is necessary for a party to go to court to seek a stay of arbitration? If the partly refuses to participate in the arbitration and does not have the authority of the court in the form of a “stay of arbitration,” temporary or otherwise, the arbitration can proceed “in absentia” of the objecting party.

For example, in Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division ruled that an arbitrator [1] may proceed with a disciplinary arbitration notwithstanding the fact that the appointing authority refused to participate in the proceeding and [2] thereafter make a final, binding determination.  

The employer had boycotted the arbitration because, it contended, Hall was not entitled submit the matter to arbitration. The court upheld the arbitrator’s award in favor of the employee.

The same result obtains when a party refuses or fails to participate in an administrative proceedings. The decision of the Appellate Division, Third Department in Aures v Buffalo Board of Education, 272 A.D.2d 664, demonstrates this.

In Aures, the employer, the Buffalo City School District, failed to appear at an unem­ployment insurance hearing as scheduled. The hearing officer proceeded to hold the hearing "in absentia" and awarded unemployment insurance benefits to Aures. Rejecting Buffalo's appeal challenging the award of benefits, the Appellate Division ruled that the administrative determination was binding on the parties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02999.htm

Reports recently issued by the Office of the State Comptroller

Reports recently issued by the Office of the State Comptroller

Click on text highlighted in color to access the entire report

Recent reports issued by the Office of the State Comptroller

Click on text highlighted in color to access the entire report

Special Education
The Unadilla Valley Central School District saved more than $300,000 in special education costs over a two-year period, according to an auditissued by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/apr16/041916.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160424&utm_campaign=fiscal+oversight

School Audits issued

Campbell-Savona Central School District - Liquidating the accumulated deficit in the District’s general fund

Gilboa-Conesville Central School District – Internal controls to safeguard portable devices such as laptop computers, tablets and cameras

Hicksville Union Free School District – Purchasing

Highland Falls-Fort Montgomery Central School District - Financial Condition

Madrid-Waddington Central School District - Financial Condition

Yorkshire-Pioneer Central School District - Financial Management