You are here: / Unemployment Insurance
,

CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT).

The Third Department determined claimant was properly denied unemployment insurance benefits for the first seven weeks of a strike because an alternative work site was available:

Pursuant to Labor Law § 592 (1), unemployment insurance benefits are suspended during the first consecutive seven weeks of a strike or industrial controversy beginning the day after a claimant ceases working due to a strike, unless there has been a peremptory lockout by the employer … . The record reflects that claimant did not work during the relevant period due to the strike, and that he refused his manager’s directive to report to an alternate work site that was open, staffed by supervisors and operational during the strike. Thus, substantial evidence supports the Board’s determination to suspend his benefits pursuant to Labor Law § 592 (1) … . The record also demonstrates that the employer did not, at any point, institute a work stoppage or lockout preventing employees from working but, rather, the union initiated the strike and work stoppage, in which claimant participated. Further, as the Board correctly determined, the employer’s decision to consolidate operations due to the strike and to temporarily assign claimant to a nearby work site did not constitute a “lockout[]” … , which only occurs upon “the refusal by an employer to furnish available work to [its] regular employees” … . Matter of Parron (Commissioner of Labor), 2018 NY Slip Op 01696, Second Dept 3-15-18

UNEMPLOYMENT INSURANCE (STRIKES, CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT))/EMPLOYMENT LAW (UNEMPLOYMENT INSURANCE, STRIKES, CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT))/STRIKES (UNEMPLOYMENT INSURANCE, CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT))

ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined that, although the employer had cause to fire the claimant for tardiness and absences, substantial evidence supported the Board’s finding her tardiness and absences did disqualify her from receiving unemployment benefits. Although claimant had been informed that her tardiness and absences were not acceptable, she was never informed that she could be fired as a result. Claimant was not fired until after she put in a claim for workers’ compensation benefits after an injury at work:

… “[W]hether a claimant’s actions rise to the level of disqualifying misconduct is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct”… . The Board’s determination in this regard will not be disturbed if it is supported by substantial evidence … .

The record reveals that, although claimant’s tardiness and attendance problems began in December 2014, she was not served with any notices of discipline until May 4, 2015, just after her work-related injury. Claimant’s immediate supervisor testified that she instructed claimant on the proper procedure for entering her work hours into the computer system and told her that she had to be at work between the hours of 9:00 a.m. and 5:00 p.m. In fact, claimant received emails in December 2014 and March 2015 reminding her of these requirements. She was not, however, advised that adverse employment consequences would result if she did not follow the proper protocol. Likewise, the notices of discipline did not set forth the disciplinary measures that would be taken if claimant continued to engaged in the objectionable behavior. Furthermore, claimant’s termination occurred shortly after she was placed on suspension without affording her an opportunity to correct her behavior … . Under the circumstances presented, although the employer had cause to discharge claimant, she did not exhibit a willful and wanton disregard of the employer’s interest rising to the level of disqualifying misconduct … . Matter of Jelic (Ama Research Labs. Inc.–Commissioner of Labor), 2018 NY Slip Op 00588, Third Dept 2-1-18

UNEMPLOYMENT INSURANCE (ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/DISQUALIFYING MISCONDUCT (UNEMPLOYMENT INSURANCE, ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/TARDINESS (UNEMPLOYMENT INSURANCE, ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/ABSENCES (UNEMPLOYMENT INSURANCE, ALTHOUGH THE EMPLOYER HAD CAUSE TO FIRE CLAIMANT FOR TARDINESS AND ABSENCES, CLAIMANT’S ACTIONS DID NOT DISQUALIFY HER FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT).

The Third Department determined claimant was not entitled to additional unemployment benefits in connection with his enrolling in a barber training program. Claimant did not enroll in the program until after his regular unemployment benefits had been exhausted:

​

Labor Law § 599 provides an avenue whereby a claimant who participates in an approved training program may be eligible for additional unemployment insurance benefits after his or her regular benefits are exhausted” … . However, in order to receive benefits under this statute, the claimant “must have been accepted into an approved program, or demonstrated an application for such a program, while still receiving regular unemployment benefits” … . Here, it is undisputed that claimant’s regular unemployment benefits were exhausted more than a month before he filed his application for additional benefits under Labor Law § 599. In view of this, and in the absence of any legal authority excusing the delay, we find that substantial evidence supports the Board’s decision. Matter of Simpson (Commissioner of Labor), 2018 NY Slip Op 00594, Third Dept 2-1-18

UNEMPLOYMENT INSURANCE (CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT))/TRAINING PROGRAMS (UNEMPLOYMENT INSURANCE, CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT))/LABOR LAW 599 (UNEMPLOYMENT INSURANCE, CLAIMANT ENROLLED IN A BARBER TRAINING PROGRAM AFTER HIS REGULAR UNEMPLOYMENT BENEFITS HAD RUN OUT, HE WAS NOT ENTITLED TO ADDITIONAL BENEFITS (THIRD DEPT))

,

CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT).

The Third Department, reversing the appeal board, determined claimant was not entitled to the presumption of an employee-employer relationship afforded by Labor Law 511, which specifically applies to the performing arts. Claimant is a “caller” paid to participate in radio call-in shows to promote the shows. The caller need have no artistic skill or talent. Therefore the Labor Law 511 presumption did not apply:

In this case, as there is no dispute that the callers' services did not require artistic or technical skill or talent, we find that the statutory presumption for an employee in the performing arts has not been established. As such, we find that the Board's interpretation of the statute was erroneous and its decision must be reversed. Additionally, we note that only general information about the endeavors of the radio stations — which are not deemed to be the employers of the callers — was provided, which was insufficient to support the Board's finding that such endeavors required an artistic or technical skill or talent to produce. Inasmuch as the Board did not address whether United [the employer] exercised sufficient direction and control over claimant and those similarly situated to establish an employer-employee relationship, we remit the matter for the Board's consideration. Matter of Minefee (United Stas. Radio Networks, Inc.–Commissioner of Labor), 2018 NY Slip Op 00210, Third Dept 1-11-18

UNEMPLOYMENT INSURANCE (CALLERS, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))/LABOR LAW (UNEMPLOYMENT INSURANCE, PERFORMING ARTISTS, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))/PERFORMING ARTISTS (UNEMPLOYMENT INSURANCE, LABOR LAW, CALLERS, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))/CALLERS (UNEMPLOYMENT INSURANCE, LABOR LAW, CLAIMANT NOT ENTITLED TO PRESUMPTION OF AN EMPLOYER-EMPLOYEE RELATIONSHIP PURSUANT TO LABOR LAW 511 WHICH IS AFFORDED TO PERFORMING ARTISTS, CLAIMANT IS PAID TO PROMOTE CALL-IN RADIO SHOWS BY CALLING DURING THE SHOWS, AN ACTIVITY THAT REQUIRES NO ARTISTIC TALENT (THIRD DEPT))

OFFICE LEASING BROKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined an office leasing broker was an employee of Kaufman Leasing Company LLC and was entitled to unemployment insurance benefits:

​

Here, the record establishes that claimant, a licensed real estate salesperson, submitted his resume and was interviewed twice before being hired as an office leasing broker and signing an independent contractor agreement. Kaufman provided claimant and those similarly situated an extensive training program that included assignment of a mentor and instruction by a third-party vendor hired by the Kaufman that took place either at Kaufman’s offices or the vendor’s location. The training included instruction on best practices, basic leasing terminology, how to identify prospects, how to make cold calls and how to negotiate a transaction. Even after claimant successfully completed the training program within the probationary period, the services of the vendor were still available to him. Claimant was paid a draw during the probationary and training period, for which Kaufman did not seek reimbursement. Kaufman also provided claimant and those similarly situated an office with equipment and supplies — including desks, computers, Internet and multiple listing service — where claimant and those similarly situated were expected to report when the office opened at 8:30 a.m. or otherwise inform a supervisor of his or her whereabouts during the day.

In addition, Kaufman issued claimant and those similarly situated a work email address, as well as business cards with the salesperson’s name and Kaufman’s name on them. Pursuant to the signed agreement, Kaufman reimbursed claimant and those similarly situated for certain professional expenses, set the commission rates, reserved the right to request monthly reports, required confidential final transaction reports, provided health insurance at Kaufman’s expense, prohibited the performance of similar services outside the company and required that the services be performed to the best of the salesperson’s abilities in a timely and productive manner. Matter of Slater (Kaufman Leasing Co. LLC–Commissioner. of Labor), 2017 NY Slip Op 09218, Third Dept 12-28-17

 

UNEMPLOYMENT INSURANCE (OFFICE LEASING BROKER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

, ,

SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT).

The Third Department determined a substitute teacher had not been given reasonable assurance of employment following the summer break and should not have been denied unemployment benefits on that ground:

​

This Court has well-established precedent interpreting the identical phrase in Labor Law § 590 (10), “reasonable assurance,” regarding two successive academic years or terms to require “a representation by the employer” as to future employment . This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities … .

​

Here, it is uncontested that the employer never sent any letter to claimant or provided him with any other form of notice that made a representation regarding claimant’s employment after the recess. Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Third Dept 12-7-17

 

UNEMPLOYMENT INSURANCE (TEACHERS, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/EDUCATION-SCHOOL LAW (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/LABOR LAW (UNEMPLOYMENT INSURANCE, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/TEACHERS (UNEMPLOYMENT INSURANCE, LABOR LAW, SUBSTITUTE TEACHER WAS NOT GIVEN REASONABLE ASSURANCE OF FUTURE EMPLOYMENT AS REQUIRED BY THE LABOR LAW, UNEMPLOYMENT BENEFITS SHOULD NOT HAVE BEEN DENIED ON THAT GROUND (THIRD DEPT))/E

MEDICAL LAB DRIVERS WERE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department determined drivers for a medical lab (Empire City) were employees entitled to unemployment insurance benefits:

​

Although some of the control exercised by Empire City was occasioned by the regulated nature of the work performed by the drivers, many aspects of control exercised by Empire City went well beyond such regulation … . Empire City assigned delivery routes based on driver availability, and the drivers were required to make the stops and deliveries along those routes as specified by Empire City. To this end, Empire City provided the drivers with route sheets containing instructions for pickups and, on occasion, imposed pickup times for its clients. Drivers were required to make same-day delivery of any specimens that were picked up and, at the conclusion of each day, drivers were required to submit route sheets to Empire City and confirm that no specimens remained in their vehicles. Empire City also provided the drivers with assistance if they experienced difficulty making a delivery and, if a driver was unable to report to work and find a substitute driver, Empire City asked for advance notice so that it could cover the route by assigning another driver of its choosing to the route. Empire City provided supplies, including ice boxes and ice packs, to facilitate the deliveries and handled client complaints. Matter of Raupov (Empire City Labs., Inc.–Commissioner of Labor), 2017 NY Slip Op 08068, Third Dept 11-16-17

 

UNEMPLOYMENT INSURANCE (MEDICAL LAB DRIVERS WERE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))/DRIVERS (UNEMPLOYMENT INSURANCE, MEDICAL LAB DRIVERS WERE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT))

,

CLAIMANT WAS NOT TOTALLY UNEMPLOYED WHEN WINDING UP HIS CORPORATION’S BUSINESS, ACTUAL FINANCIAL GAIN IS NOT A PREREQUISITE TO FINDING A CLAIMANT IS NOT TOTALLY UNEMPLOYED (THIRD DEPT).

The Third Department determined claimant was not totally unemployed and was therefore not entitled to unemployment insurance benefits. Claimant was winding up his corporation’s business during the relevant period of time:

​

“[A] corporate officer who performs activities in connection with the winding up of a corporation will not be considered totally unemployed, even if his or her activities in this regard are minimal” … . Following the sale of the business, claimant took measures in winding up the business during the time period in question, including changing the company name with the Department of State as required by the purchase agreement, distributing the monthly installment payments received from the purchaser of the business, and writing checks from the company account for accountant and counsel fees, taxes, insurance costs, a charitable contribution, office supplies and other business expenses. Under these circumstances, the Board’s determination that claimant was not totally unemployed is supported by substantial evidence and will not be disturbed … . “Contrary to claimant’s assertion, actual financial gain is not a prerequisite to a finding that a claimant is not totally unemployed” … . Matter of Lasker (Commissioner of Labor), 2017 NY Slip Op 07924, Third Dept 11-9-17

 

UNEMPLOYMENT INSURANCE (CLAIMANT WAS NOT TOTALLY UNEMPLOYED WHEN WINDING UP HIS CORPORATION’S BUSINESS, ACTUAL FINANCIAL GAIN IS NOT A PREREQUISITE TO FINDING A CLAIMANT IS NOT TOTALLY UNEMPLOYED (THIRD DEPT))/CORPORATION LAW (UNEMPLOYMENT INSURANCE, CLAIMANT WAS NOT TOTALLY UNEMPLOYED WHEN WINDING UP HIS CORPORATION’S BUSINESS, ACTUAL FINANCIAL GAIN IS NOT A PREREQUISITE TO FINDING A CLAIMANT IS NOT TOTALLY UNEMPLOYED (THIRD DEPT))

DESPITE CLAIMANT’S SIGNING A STIPULATION AGREEING TO RESIGN, A HOSTILE WORK ENVIRONMENT PROVIDED GOOD CAUSE FOR HER RESIGNATION 3RD DEPT.

The Third Department determined claimant was properly awarded unemployment insurance benefits, despite her signing a stipulation agreeing to resign. The stipulation did not mention any misconduct by the claimant. Claimant’s testimony demonstrated a hostile work environment which provided good cause for her leaving:

As a general proposition, a claimant who voluntarily leaves his or her employment without good cause will not be entitled to receive unemployment insurance benefits … , and the same holds true for a claimant who engages in disqualifying misconduct … . That said, “[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct” … . “Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” … .

Claimant and the employer’s witnesses presented competing accounts of claimant’s work history, her work product, her general demeanor and her interaction with others in her office. Without recounting the extensive testimony offered on these points, suffice it to say that the employer portrayed claimant as an insubordinate malcontent who failed to timely and appropriately complete assignments or respond to various emails or directives. Claimant, on the other hand, testified at length as to the “bullying” and harassment that she endured at the hands of her supervisors, recounted the manner in which she was verbally threatened by certain individuals in her office and disputed the employer’s account of her overall work performance. This conflicting testimony presented factual and credibility issues for the Board to resolve … . As noted previously, the stipulation of settlement entered into between claimant and the employer contained no finding or admission of wrongdoing on the part of claimant. Further, upon crediting claimant’s testimony as to the nature of her work environment and her reasons for resigning, the Board agreed with the ALJ’s findings that claimant’s actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her “hostile” and “untenable” work environment — an environment that, in turn, provided “a compelling reason for her to resign.” Matter of Cohen (Commissioner of Labor), 2017 NY Slip Op 05885, 3rd Dept 7-27-17

 

UNEMPLOYMENT INSURANCE (GOOD CAUSE, DESPITE CLAIMANT’S SIGNING A STIPULATION AGREEING TO RESIGN, A HOSTILE WORK ENVIRONMENT PROVIDED GOOD CAUSE FOR HER RESIGNATION 3RD DEPT)/HOSTILE WORK ENVIRONMENT (UNEMPLOYMENT INSURANCE, DESPITE CLAIMANT’S SIGNING A STIPULATION AGREEING TO RESIGN, A HOSTILE WORK ENVIRONMENT PROVIDED GOOD CAUSE FOR HER RESIGNATION 3RD DEPT)

EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.

The Third Department determined claimant, an exotic dancer, was an employee of a club (Jacaranda) entitled to unemployment insurance benefits:

Here, the record establishes that, before claimant was permitted to work in the club, she was required to attend an audition for Jacaranda to determine whether to hire her. While claimant provided the club with the dates on which she was available to perform, her proposed work schedule had to be approved by the club’s managers. Claimant testified that, once her schedule was set, she was required to report to work by a particular time. Claimant was also required to sign in when she arrived at the club, and, according to claimant, she was expected to notify the club’s managers when she could not come to work for her scheduled hours and was required to make up for any absences. Claimant testified that, while she provided her own costumes, each costume had to meet certain standards set by the club and be approved by the club’s managers. Claimant was required to use the stage, private dance rooms, sound equipment and music provided by the club. Furthermore, claimant testified that the club charged patrons an admission fee, set the prices that she could charge patrons for private dances and retained a percentage of those private bookings. Claimant also testified that, besides performing dances, she was required to sell alcohol to patrons and attend weekly meetings conducted by the club’s owners or managers. Lastly, claimant testified that she was prohibited from working for Jacaranda’s competitors while performing services for Jacaranda. Matter of Commissiong (Jacaranda Club LLC–Commissioner of Labor), 2017 NY Slip Op 04337, 3rd Dept 6-1-17

UNEMPLOYMENT INSURANCE (EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)/EXOTIC DANCERS (UNEMPLOYMENT INSURANCE, EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy