Admitting evidence of prior disciplinary action taken against the charged party

Admitting evidence of prior disciplinary action taken against the charged party

OATH Index No. 2310/17

Although the New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls ruled that evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct, she said that prior disciplinary events may be used to rebut employee’s testimony that he was unaware of work rules.

Judge McGeachy-Kuls then admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. This evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.

In contrast, if an employee's personnel history will be considered by the hearing officer to determine the penalty to be imposed if the individual is found guilty of some, or all, of the disciplinary charges and specifications filed against the individual, he or she must be advised of such action.

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that an employee's personnel records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2310.pdf

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

Court upholds appointing authority's rejection of hearing officer findings concerning employee's residence

In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757

Although the hearing officer found that she was living outside the City on January 1, the Commissioner held that she was a resident of the City on that date. This determination made the contact provision inapplicable to her.

The Appellate Division concluded that the record contained substantial evidence affording a rational basis for the Commissioner’s finding that Ziehm was a City resident from 1973 until June 1979 and that she did not qualify for the exemption contained in the collective bargaining agreement and upheld his determination.

The Appellate Division then considered the issue of whether Respondent's final determination was supported by substantial evidence. It found that it was, noting that "As relevant here, neglect is defined as an action 'that breaches a custodian's duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient.'"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03407.htm

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