Determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d)

Determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d) 
Matter of Clemons (Village of Freeport--Commissioner of Labor), 2017 NY Slip Op 04333, Appellate Division, Third Department

Labor Law §565[2], in pertinent part, provides for certain exclusions from eligibility for unemployment insurance benefits. In addition to services not included pursuant to the provisions of §511 the Labor Law, the term "employment" does not include services rendered for a governmental entity by a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency.

The Village of Freeport, Nassau County, [Village] sustained extensive damage as a result of Hurricane Sandy and was declared a major disaster by federal, state and local governments and ultimately received federal funding to assist it with its clean-up and restoration efforts. Village hired two individuals [Claimants] as temporary laborers to help with these clean-up and restoration efforts.

Following the end of their employment by the Village, Claimants filed applications for unemployment insurance benefits, and, over Freeport's objection, the Department of Labor issued initial determinations finding that the wages paid to Claimants were not excluded under Labor Law §565(2)(d) and thus Claimants were entitled to receive unemployment insurance benefits. Ultimately the Unemployment Insurance Appeal Board sustained the Department's determinations and Freeport appealed.

Freeport challenged the Unemployment Insurance Appeal Board ruling that the two Claimants were eligible to receive unemployment insurance benefits because they were not employees of Freeport within the meaning of Labor Law §565(2)(d). Freeport, on the other hand, argued that Claimants fell within the ambit of this statutory exclusion and thus were ineligible for unemployment insurance benefits.

The Appellate Division affirmed the Board's determination, explaining that for the  purposes of determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d), "Whether this exclusion applies presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis"

It was not disputed that Claimants were hired on a temporary basis because of the damage caused by the hurricane. The court said that "the controverted issue is whether the cited exclusion applies and, more specifically, whether the services provided by . [an] emergency."

Claimants had been hired on a temporary basis using federal grant money received as a result of the damage caused by the hurricane. However, they both, performed routine maintenance duties, including cutting grass, raking leaves, shoveling snow, driving trucks and cleaning municipal parking lots. In determining that the services performed by Claimants were related to the hurricane clean-up efforts but "not performed in case of an emergency," the Board also noted that the Claimants were hired almost a year after the hurricane and at a time when "there was no need for immediate action."

The Board, said the Appellate Division, also relied upon a Program Letter issued by the United States Department of Labor [DOL] that provided the DOL's interpretation of the exclusion from unemployment insurance coverage of governmental services performed in case of emergency. Letter No. 22-97 stated that "the urgent distress caused by the emergency . . . must directly cause the need for the services to be performed" and that, if the services performed occur "after the need for immediate action has passed, they are not necessarily performed in case of emergency.

As Claimants were employed by Freeport  nearly a year after the hurricane, the court found that there was a rational basis for the Board's decision that the exclusion did not apply and that the services performed by Claimants "were in covered employment" and thus they were eligible for unemployment insurance benefits.

Accordingly, the Appellate Division said that it found "no reason to disturb the decisions of the Board" regarding Claimants.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_04333.htm

Disciplinary action follows employee's disrespectful and intimidating behavior towards superiors

Disciplinary action follows employee's disrespectful and intimidating behavior towards superiors

OATH Index No. 2307/17

A New York City job opportunity specialist [Specialist] was served with disciplinary charges pursuant to Civil Service Law §75 for allegedly having engaged in disrespectful and intimidating behavior directed towards her superiors.

The Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison found that on one occasion the Specialist had "loudly confronted the director of her work location to complain about her supervisor," using inappropriate and offensive language. The Specialist also refused to leave the director’s office after she was instructed to do so.

The ALJ found that on another occasion the Specialist "snatched a document from, pointed her finger, and yelled at her supervisor."

In addition, Judge Addison found that the Specialist's employer established that the Specialist failed to follow her supervisor’s instructions on three occasions.  

Considering that the Specialist had had no prior discipline action taken against her, the ALJ said "This tribunal has generally applied the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct."

Noting that the employer sought to have the Specialist suspended without pay for 35 days, ALJ Addison said that she found such a penalty "excessive" and  recommended the Specialist be given a 20-day suspension without pay as the penalty for the Specialist's proven misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2307.pdf

___________________________ 

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/7401.html

___________________________  

Controverting a claim based on an alleged false statement or representation by the claimant in his or her application for workers' compensation benefits

Controverting a claim based on an alleged false statement or representation by the claimant in his or her application for workers' compensation benefits

2017 NY Slip Op 06490, Appellate Division, Third Department

A school district employee [Claimant] sustained work-related injuries that caused him to eventually stop working and filed a claim for workers' compensation benefits. He was subsequently classified as having a permanent total disability and was awarded benefits accordingly.*

School district and its workers' compensation carrier [Carrier] subsequently "controverted the claim" alleging that Claimant violated of Workers' Compensation Law §114-a** based upon video surveillance footage allegedly showing Claimant performing activities that Carrier contended demonstrated Claimant's ability to work. A Workers' Compensation Law Judge ultimately ruled that there was no violation of Workers' Compensation Law §114-a. which ruling was affirmed by the Workers' Compensation Board. Carrier appealed the Board's decision.

Workers' Compensation Law §114-a (1) provides that a claimant who "knowingly makes a false statement or representation as to a material fact . . . shall be disqualified from receiving any compensation directly attributable to such false statement or representation."

Citing Cirrincione v Scissors Wizard, 145 AD3d 1325, the Appellate Division said that Board "is the sole arbiter of witness credibility, and its determination as to whether a claimant violated Workers' Compensation Law §114-a will not be disturbed if supported by substantial evidence."

Carrier had submitted video surveillance footage showing Claimant's activities at sporting events involving an amateur football team that was organized by Claimant's wife and another individual. Claimant was videotaped walking around the concessions and merchandise areas, helping to move a popcorn machine on one occasion and assisting his disabled daughter take money at the secondary admission gate on another occasion.

Claimant's wife testified that the team was a nonprofit organization and that the money collected through admission, merchandise and concessions was used to cover fixed expenses such as liability insurance and the field rental. She stated that the team relied on the efforts of volunteers and that Claimant did not have specific duties, but was present at the games to support the team. Claimant also testified that he attended the games to support the team and did not work, although he acknowledged that he had assisted his disabled daughter collect money at the back gate.

The Appellate Division said considering this testimony the Board could reasonably conclude that Claimant's activities were minimal and not inconsistent with the representations that he made on the questionnaires provided to the carrier.

Holding that substantial evidence supported the Board's finding that Claimant did not violate Workers' Compensation Law §114-a, the Appellate Division declined to disturb the Board's decision.

* The Workers' Compensation Board subsequently modified this decision and ruled that Claimant sustained a permanent total industrial disability.

** § 114-a of the Workers' Compensation Law provides for the "Disqualification for false representation" as follows: "1. If for the purpose of obtaining compensation pursuant to section fifteen of this chapter, or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In addition, as determined by the board, the claimant shall be subject to a disqualification or an additional penalty up to the foregoing amount directly attributable to the false statement or representation. Any penalty monies shall be paid into the state treasury."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06490.htm

Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

2017 NY Slip Op 06489, Appellate Division, Third Department

Claimant, a part-time employee, certified that she had not earned more than $405 before taxes as a result of such employment. The Department of Labor, however, determined that Claimant was ineligible to receive unemployment benefits for specified weeks on the basis that she was not totally unemployed and her earnings exceeded the statutory limitation of $405 a week. As a result, Claimant was found to have received an over-payment of benefits and emergency benefits, which were recoverable. As a result, Claimant's right to receive future benefits was reduced by a specified number of effective days and the Department imposed specified monetary penalties on the basis that she made willful misrepresentations to obtain benefits.

Ultimately the Board reviewed the record and determined that Claimant had made a willful misrepresentations to obtain benefits for certain period of her unemployment and sustaining the charges imposed as the result of over-payments, the reductions of her right to receive certain payments in the future and the monetary penalties imposed that were associated with those misrespresented periods of unemployment. Claimant appealed.

The Appellate Division found that substantial evidence supports the Board's determination that Claimant made willful false statements to obtain certain benefits, explaining that "[i]t is well settled that the question of whether a claimant ha[s] made . . . willful misrepresentation[s] to obtain benefits is a factual issue for the Board to resolve and will be upheld if supported by substantial evidence." Significantly, the court observed that "there is no acceptable defense to making a false statement . . . and a claim that the misrepresentation was unintentional is not sufficient."

The court noted that the record shows that Claimant had received an unemployment insurance handbook that specified that she was eligible to receive partial benefits as a part-time worker if, among other things, she earned less than $405 in a week. It rejected her contention that she relied on a formula provided by a Department of Labor representative in order to calculate her weekly wage — rather than simply dividing the amount shown on her biweekly pay stub by two. The Appellate Division characterizing Claimant's argument as "unavailing," considering that "at no point did Claimant inform the representative that she was receiving biweekly pay stubs that showed that she was, in fact, earning amounts greater than $405 per week."

Finding that "[u]nder these circumstances, substantial evidence supports the Board's determination" that Claimant made willful misrepresentations, the Appellate Division affirmed the Board's decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06489.htm

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Collins v Montgomery County Sheriff's Dept., 2017 NY Slip Op 06487, Appellate Division, Third Department

A Montgomery County deputy sheriff [Claimant] sustained a work-related injury. His claim for workers' compensation benefits was ultimately established and he was awarded disability benefits.

The Montgomery County Sheriff Department [Department] a "self-insured workers' compensation employer" paid Claimant his full weekly wages for the period November 29, 2011 through May 30, 2012 and filed a timely reimbursement request with the Workers' Compensation Board. The Department and Claimant then entered into a stipulation establishing that Claimant had sustained a 21% schedule loss of use of his right leg, payable from November 28, 2011 to February 16, 2012 at the temporary total disability rate, with the balance payable at the permanent partial disability rate and the Department was "to take credit for all prior payments."

Claimant then requested a hearing to address whether, pursuant to the terms of the parties' stipulation, the Department was entitled to reimbursement out of his schedule award for the full wages previously paid or whether a late payment penalty should be imposed against the Department for an underpayment of compensation.

A Workers' Compensation Law Judge [WCLJ] determined that the language of the stipulation permitted the Department to obtain reimbursement for the full wages paid to Claimant during compensable lost time and that there was no underpayment. The WCLJ also denied Claimant's request for imposition of a penalty. The Workers' Compensation Board affirmed the WCLJ's ruling and Claimant appeal the Board's decision.

The Appellate Division affirmed the Board's decision, noting that Workers' Compensation Law §25 (4)(a) provides that, "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instal[l]ment or instal[l]ments of compensation due, provided [the employer's] claim for reimbursement is filed before [an] award of compensation is made."

In addition, said the court, "it is well settled that, where a claimant receives a schedule loss of use award, the employer is entitled to full reimbursement of the payments made during the period of disability."

As to Claimant's argument that the Board had "departed from prior precedent without explanation.," the Appellate Division explained that:

1. The Board was not required to explain the different holdings in the various cases cited by Claimant;

2. Here, in contrast to the Board holdings in prior cases cited by Claimant, "the parties' stipulation specifically indicated that the [Department] was 'to take credit for all prior payments' [emphasis by the Appellate Division] — without any distinction drawn between wages, awards or compensation;"

3. At the Workers' Compensation Board hearing before the WCLJ at which the stipulation was executed, Claimant indicated that he was aware that the Department was entitled to take credit for any prior indemnity payments that he had received; and

4. The WCLJ order directed the Department to "take credit for prior payments."

Although, said the Appellate Division, "[a] statutory or regulatory right may generally be waived by a stipulation or by conduct evincing an intent to forgo that right," in this instance the Board's reading of the parties' stipulation that the Department did not intend to waive its right to reimbursement is supported by substantial evidence. Accordingly, the court declined to "disturbed" the Board's determination and affirmed its decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06487.htm