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Inability to Find Sufficient Childcare Was “Good Cause” for Leaving Employment

In affirming the Unemployment Insurance Appeal Board’s determination claimant had good cause for leaving her employment, the Third Department wrote:

“Whether a claimant has good cause to leave his or her employment is a factual determination to be made by the Board, and its decision will not be disturbed when supported by substantial evidence” … . Claimant offered multiple reasons that she was dissatisfied with her employment, but the record supports the Board’s conclusion that the impetus for her resignation was an inability to arrange appropriate childcare despite having made sufficient efforts in that regard.  We find that substantial evidence supports the Board’s determination that, under all of the circumstances presented here, claimant had good cause to leave her employment… . Matter of Cottone…, 516338, 3rd Dept 9-19-13

 

Claimant Who Provided Computer-Training for Company’s Clients Properly Found to Be Employee of Company

In affirming the Unemployment Insurance Appeal Board’s determination claimant was an employee of a company (Eden Technologies) which provides computer-training personnel to clients, the Third Department wrote:

The existence of an employer-employee relationship is a factual determination for the Board to resolve and its determination will not be disturbed if supported by substantial evidence … .  This Court has held that “‘an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship'” … . In this case, there is proof that Eden sought, interviewed and selected claimant to perform services at the request of a client. On a weekly basis, claimant was required to submit time sheets provided by Eden, including information about what services were provided.  Eden then paid claimant directly on a biweekly basis at a set hourly rate and billed the client separately. Additionally, certain restrictions were placed upon claimant’s provision of services to Eden’s clients and other entities during her employment and for one year following separation.  Thus, although there is evidence that could support a different result, we find substantial evidence to support the Board’s decision… . Matter of Lamar…, 516039, 3rd Dept 9-19-13

 

Salesman Properly Found to Be an Employee

In affirming the Unemployment Insurance Appeal Board’s conclusion that claimant was an employee of Village Wine, the Third Department wrote:

Claimant was a salesperson for Village Wine Imports Ltd., a wine importer and distributor.  Substantial evidence supports the Unemployment Insurance Appeal Board’s conclusion that claimant and those similarly situated were Village Wine’s employees and not independent contractors.  Village Wine set claimant’s commission rate, paid him a draw on his commission for a period of time, and reimbursed his travel and telephone expenses. Claimant was also trained by Village Wine, which assisted his sales efforts by providing product samples and business cards bearing the company name.  Village Wine also set the price, terms and conditions for all sales, gave claimant sales leads, required him to obtain approval for sales, and handled all shipping and invoicing matters.  While evidence in the record could support a contrary result, the Board was free to determine from the above that Village Wine exercised sufficient control over claimant to establish an employer-employee relationship… . Matter of Miciletto…, 515852, 3rd Dept 9-19-13

 

Hearing Officer’s Factual Misconduct Findings Cannot Be Ignored

In reversing the Unemployment Insurance Appeal Board’s grant of unemployment benefits to the claimant, the Third Department explained that the hearing officer’s factual findings of disqualifying misconduct cannot be ignored:

While the Board was free to make “independent additional factual findings” and draw its own independent conclusion as to whether claimant’s behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the Hearing Officer’s “factual findings regarding claimant’s conduct and his conclusion” that claimant had been insubordinate … .  Despite the fact that “the question of claimant’s conduct leading to his termination necessarily had to be considered” in making that assessment, the Board here inexplicably failed to consider whether claimant’s actions … constituted disqualifying misconduct… . Matter of Winters…, 515809, 3rd Dept 9-19-13

 

Employee’s Use of Personal Checking Account Did Not Amount to Misconduct

The Third Department reversed the Unemployment Insurance Appeal Board’s denial of benefits finding that, although the practice of depositing money in the employee’s bank account for reimbursement to her and others for out of pocket expenses violated company policy, it did not amount to misconduct:

Even  where  an  employee  has been  fired for legitimate reasons, the “behavior may  fall short of misconduct and, therefore, he  or she  may  still be  entitled to receive benefits”….   Although a knowing violation of an employer’s established policies that has a detrimental effect on  the employer’s interests can  constitute disqualifying  misconduct  …, we find that claimant’s misconduct  in this case did not rise to a disqualifying    level.    While we do not quarrel with the Board’s finding that claimant violated the employer’s established policies, which  provided a basis for terminating her employment, the hearing testimony reveals that claimant’s actions were  in keeping  with a longstanding practice that was at least partially condoned by her former supervisor and were necessary because claimant did not have  check  writing authority… . Matter of Lopresti, 516109, 3rd Dept 7-3-13

 

Employer’s Late Request for a Hearing Could Not Be Excused

In affirming the Unemployment Insurance Appeal Board’s ruling that an employer’s request for a hearing was untimely, the Third Department noted there was no provision allowing an extension of time:

“Pursuant to Labor Law § 620 (2), an employer has 30 days from the mailing or personal delivery of a contested determination  to  request a  hearing”….  The employer acknowledged receiving the determination, but was unsure of the date of such receipt. Pursuant to the unrebutted presumption found in 12 NYCRR 461.2, the determination was deemed mailed on January 12, 2009 and received by the employer within five days thereafter. Although the employer contends that the admittedly late written request for a hearing was due to law office failure, “the statutory time period in which to request a hearing is to be strictly construed, and the statute contains no  provision permitting an extension of time in which an employer can request a hearing”… . Matter of Agarwal, 515007, 3rd Dept 7-3-13

 

Board’s Determination Business Was Claimant’s “Employer” Reversed

In reversing the Unemployment Insurance Appeal Board’s determination that “Quick Change” was claimant’s employer and therefore was liable for contributions to unemployment benefits, the Third Department noted:

Here, Quick Change did not screen claimant but, rather, retained his services based upon his reputation in the industry. Claimant was  free to accept or reject an  assignment  from  Quick Change,  was  not prohibited  from  working  for others,  did  not  sign a written contract and  received no  fringe benefits. Although Quick Change arranged for claimant to begin working at a specific time and place designated by the client, the work schedule thereafter  was  dictated  solely by  the  client, and  a  representative from  Quick Change  was  never present at the job site. Quick Change did not train claimant or instruct him in any aspect of how to perform his work, and claimant was not required to report to Quick Change in any manner. Claimant furnished his own supplies and received no reimbursement from Quick Change. Once the work was completed, claimant submitted invoices to Quick Change for payment. Quick Change set the rate of pay; however, it was based upon the established market  for such  services. Moreover, while the owner of Quick Change hypothesized that she would likely pay claimant in the event that the client did not pay, this was based  upon  a sense of personal obligation rather than a  contractual  commitment.  In the Matter of Richins…, 515330, 515370, 3rd Dept 6-27-13

 

Employee’s Submission of Amended Time Card Did Not Constitute Misconduct

In affirming the Unemployment Insurance Appeal Board’s finding the employee did not commit “misconduct” which justified the denial of benefits, the Third Department wrote:

“Whether a claimant lost his or her employment through disqualifying  misconduct  presents  a  factual  issue  for the  Board, and  its resolution thereof will not  be  disturbed if supported  by substantial  evidence”  ….   Significantly, “not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct”  ….   Here, contrary to the employer’s  argument,  the  Board  was  free  to  credit  claimant’s testimony that she performed work for the employer while waiting in the  parking  lot between  7:30  a.m. and  8:00  a.m…..   Inasmuch  as substantial evidence supports  the  Board’s  conclusion  that  claimant’s  isolated “submission  of the  corrected time  sheet  was  an  act of poor judgment,”  we  find no  basis to disturb the  Board’s ruling that claimant’s  conduct  did  not  rise to  the  level of  disqualifying misconduct… .  Matter of Nangreave…, 515686, 3rd Dept, 6-13-13

 

Deputy Sheriff Fired for Incompetence and Insubordination Was Entitled to Unemployment Benefits

In upholding the finding that a former sheriff’s deputy was entitled to unemployment insurance benefits, even though he was terminated for incompetence and insubordination, the Third Department noted that collateral estoppel applied to the factual findings in the Civil Service proceeding, but the Unemployment Insurance Appeal Board could make its own determination whether the facts supported denial of unemployment benefits:

Given that claimant had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law § 75 hearing, the Board properly accorded collateral estoppel effect to the factual findings of the Hearing Officer… .  It was, however, incumbent upon the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying claimant from receiving unemployment insurance benefits….  Significantly, “[t]he  same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes….  The Board’s decision in this regard will not  be  disturbed  if supported  by substantial evidence … . Matter of Guynup, 515235, 3rd Dept, 5-23-13

 

Claimant’s Non-Work-Related Felony Deemed to Breach Express or Implied Duty Owed to Employer

The Third Department determined claimant was ineligible for unemployment insurance benefits because of an act constituting a felony which took place at the claimant’s home, not at work, but which generated negative publicity, breaching a duty owed to the employer (a car dealership).  The Third Department wrote:

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board that claimant lost his “employment as a result of an act constituting a felony in connection with such employment” (Labor Law § 593; see Labor Law§  597). Claimant, a car salesperson, was fired after his arrest on charges stemming from, among other things, his surreptitious videotaping of individuals who used the bathroom of his home. The charges, which generated negative publicity and numerous customer complaints, ultimately were resolved when claimant pleaded guilty to one count of unlawful surveillance in the second degree. Given the public nature of claimant’s position and the detrimental effect his continued employment could have had upon the employer’s business, the Board properly determined that claimant’s actions constituted a breach of  an  express  or implied duty owed to the employer… Matter of Engel [Commissioner of Labor], 515513, 3rd Dept, 5-16-13

 

 

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