Friday, December 26, 2014

Unemployment Benefits Survive Worker's Lone Facebook Posting

ALBANY - A speech pathologist who was fired for making one Facebook posting while on the job did not engage in conduct that disqualified her from receiving unemployment insurance benefits, an upstate ... :

Sent from Bryan Glass

Tuesday, August 27, 2013

Collateral Estoppel Effect of MIsconduct Arbitration

Matter of Chohan (Commissioner of Labor)
2013 NY Slip Op 05280 [108 AD3d 920]
July 11, 2013
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 21, 2013

In the Matter of Adil J. Chohan, Appellant. Commissioner of Labor, Respondent.
[*1] Adil J. Chohan, Coram, appellant pro se.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 8, 2012, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Claimant, a mail carrier, lost his employment following an incident whereby he was found to have left the employer's vehicle unattended with the engine running in violation of the employer's known policy. Claimant contested his discharge and, following an evidentiary hearing, an arbitrator concluded that there was just cause for his termination. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits on the basis that he lost his employment due to misconduct. This appeal ensued.
We affirm. Significantly, "as there was a full and fair opportunity to litigate the issue in the prior proceeding, collateral estoppel effect must be given to the arbitrator's factual findings regarding claimant's misconduct" (Matter of Redd [Commissioner of Labor], 98 AD3d 791, 791 [2012], lv denied 20 NY3d 857 [2013] [internal quotation marks and citation omitted]; see Matter of Mordukhayev [Commissioner of Labor], 104 AD3d 1005, 1006 [2013]). Here, inasmuch as the Board appropriately took into account the arbitrator's factual findings and made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance" (Matter of Nwaozor [City of New York—Commissioner of Labor], 82 AD3d 1475, 1475 [2011]), we find no basis to disturb the Board's ruling. While claimant maintains that, at worst, the alleged conduct constituted an excusable error in judgment, the Board disagreed, noting that claimant had been counseled by the employer prior to this incident "for various safety violations." Notably, "[a] claimant's disregard of an employer's established procedures and policies, particularly where it is potentially detrimental to the employer's best [*2]interest" (Matter of Song [Commissioner of Labor], 105 AD3d 1241, 1241 [2013]), may, as in this instance, be sufficient to constitute disqualifying misconduct (see Matter of Cedrone [Warren County Head Start ACC Childcare Ctr.—Commissioner of Labor], 69 AD3d 1251, 1252 [2010]).
Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed, without costs.

Tuesday, June 4, 2013

New York City Statute Establishes Unemployed As A Protected Group

Later this month, a NYC Local Law goes into effective which establishes unemploymed as a protected group. An excellent, summary of this new law is Geoffrey Mort, Implications of Statute Establishing Unemployed As A Protected Group, NYLJ (May 20, 2013). As the article explains:
When the New York City Council in March voted to override Mayor Michael Bloomberg's veto and enacted a law prohibiting employment discrimination against unemployed persons, it created the first new protected group in New York since the state Sexual Orientation Non-Discrimination Act was passed some years ago. The new act, with several exceptions discussed below, makes it unlawful for employers with four or more employees to discriminate with respect to hiring, compensation or the terms and conditions of employment against any unemployed person seeking a job or to advertise for a position and require current employment as a qualification. The purpose of the New York City Local Law Prohibiting Discrimination Based on an Individual's Unemployment is straightforward: in advocating for its passage, City Council Speaker Christine C. Quinn stated that "[w]e want to do everything we can to help people work" and said that a psychological stigma attached to being unemployed is "completely unfair."

Hat tip: Adjunct Law Prof Blog

Saturday, June 1, 2013

Voluntary Quit to Take Severance Package

Matter of Rubscha v. Commissioner of Labor, ____A.D.3d____(April 18, 2013), demonstrates an important point about leaving work to take advantage of an early retirement package. Basically, that would disqualify an individual from receiving benefits. As the court explained:
Claimant had worked as a mechanical design engineer for 29 years when his employer instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. He had no information that his job would be eliminated, but nevertheless accepted the severance package out of concern that he or his coworkers would be laid off. Inasmuch as leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment, substantial evidence supports the determination of the Unemployment Insurance Appeal Board that claimant voluntarily left his employment without good cause (see Matter of Keane [Commissioner of Labor], 93 AD3d 1002, 1003 [2012], lv denied 20 NY3d 854 [2013]; Matter of Powell [Commissioner of Labor], 79 AD3d 1507, 1507 [2010], lv denied 17 NY3d 701 [2011]). Substantial evidence further supports the Board's finding that claimant received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job" (Matter of Biedka [Hudacs], 196 AD2d 944, 944 [1993]; see Matter of Fisher [Levine], 36 NY2d 146, 153 [1975]).
Mitchell H. Rubinstein

Sunday, April 7, 2013

Workforce with no workers

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Workforce with no workers

As I was was preparing to write this column about the March unemployment results, a seemingly stray e-mail popped up among the usual ads from JCrew and Zappos. This e-mail came from something called the Assistance.Network — a sort of JDate interface for people looking to put themselves on the...

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Thursday, April 4, 2013

Unemployment For Family Members

In a major decision, the Minnesota Court of Appeals held that a state law prohibiting family-member personal care assistants from obtaining unemployment insurance benefits is unconstitutional (Weir v. ACCRA Care, Minn. Ct. App., No. A12-0764, 2/25/13).
Judge Jill Flaskamp Halbrooks reasoned that the law that defined family-member PCAs as “noncovered employees’’ for unemployment insurance purposes violates the Minnesota Constitution's equal protection clause. 

Hat tip: Adjunct Professor Law Blog