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

Lawsuit to recover damages for wrongful death of a student dismissed

Lawsuit to recover damages for wrongful death of a student dismissed

Juerss v Millbrook Cent. Sch. Dist., 2018 NY Slip Op 03518, Appellate Division, Second Department

A student suspended from Millbrook Middle School after the school's principal concluded that the she had engaged in an act of student misconduct committed suicide later that day.

Plaintiffs, as administrators of the student's estate sued the Middle School's principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District [Defendants] alleging the student's suicide was caused by the Defendants' negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.

In this action to recover damages for wrongful death, Supreme Court granted the Millbrook Central School District's motion to dismiss the Plaintiffs' complaint. The Appellate Division the lower court's determination.

With respect to the Defendants' motion to dismiss the complaint for failure to state a cause of action, the Appellate Division said that "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Citing Michaan v Gazebo Hort., Inc., 117 AD3d 692, the court said that in so doing, said the court, "the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference."

Applying these principles, the Appellate Division explained that (a) New York does not recognize a cause of action sounding in negligent investigation and (b) "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York."

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03518.htm

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

The statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease
Singleton v New York State Off. of Children & Family Servs., 2018 NY Slip Op 03411, Appellate Division, Third Department

The employee in this action, Charles Singleton, was injured on the job and was placed on leave pursuant to §71 of the Civil Service Law, commonly referred to as "Workers' Compensation Leave."

Essentially Mr. Singleton's employer, the New York State Office of Children and Family Services, OCFS, wrote to him indicating that he had the "right to a leave of absence from [his] position during [his] disability for a period of one cumulative year or sooner if found to be permanently disabled" and that if he did not return to work prior to the expiration of his workers' compensation leave his employment could be terminated as a matter of law."*

This, however, was not a pejorative termination in the nature of "termination for cause" as the individual placed on §71 has significant rights to reinstatement to his or her position, or to a similar position. Indeed, §71 does not use the word "termination" to describe the status of the individual on "Workers' Compensation Leave" upon the expiration of his or her §71 leave but rather refers to his or her status as having be "separated" from service as demonstrated by reference in the law to his or her rights to "Reinstatement after separation for disability."

Clearly the employee may return to work prior to the expiration of his or her leave of absence if medically qualified to perform the duties of his or her position.

If the employee does not return to work prior to the expiration of his or her §71 leave of absence, he or she may be separated from service but becomes eligible for reinstatement to his or her former position, or a similar position if his or former position is not available, upon his or her making [1] a timely request to return to duty and [2] being certified as being medically qualified to perform the duties of the position.

In the words of §71, "Such employee may, within one year after the termination of such disability,** make application to the [NYS] civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission."

In the event the individual is found medically qualified to return to work and no suitable position is available, §71 further provides that "If no appropriate vacancy shall exist to which reinstatement may be made, or if the work load does not warrant the filling of such vacancy, the name of such person shall be placed upon a preferred list for his or her former position, and he or she shall be eligible for reinstatement from such preferred list for a period of four years."

* Mr. Singleton had contended that he had sustained injuries from an assault-related injury at work which entitled him to a two-year leave pursuant to §71. OCFS notified petitioner that he had been placed on workers' compensation leave and that his injuries had been classified as a "non-assault injury," and thus was only entitled to a one-year leave of absence pursuant to §71.

** N.B. It is the date of  termination of  the individual's disability, in contrast the effective date of  the individual's "separation" upon the expiration of his or her "Workers' Compensation Leave," that triggers the running of the one-year statute of limitation for the purpose of the individual applying for reinstatement to his or her former, or a similar, employment. If the individual is determined not to be qualified to return to work, he or she continues as "separated" and may apply for reinstatement and a medical re-examination at some  future date.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03411.htm

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