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Claimant Did Not Receive a Bona Fide Offer of Suitable Employment that She Was Compelled to Accept After Her Lay Off—Details of Project Not Finally Established—Terms Less Favorable than Those of Prior Job

The Third Department determined claimant was entitled to unemployment benefits because she did not receive a bona fide offer of employment and, even she had been given a bona fide offer of employment she was not compelled to accept it because the terms were substantially less favorable than the terms of her employment prior to her layoff:

Initially, it is for the Board to decide whether a claimant has refused an offer of suitable employment for which he or she is reasonably fitted by training and experience (see Labor Law § 593 [2]), and its decision in this regard will be upheld if supported by substantial evidence … . Here, evidence was presented that the details of the project were not finally established at the time the employer made its inquiry, and the time frame and required hours were also not definitive … . In view of this, substantial evidence supports the Board’s finding that claimant was not given a bona fide offer of suitable employment which she refused. Moreover, even if we were to conclude that she was given a bona fide offer of employment, the terms were substantially less favorable than the terms of her employment prior to her lay off and, consequently, she was not compelled to accept it … . Matter of Gibbons …, 2014 NY Slip Op 06351, 2nd Dept 9-25-14

 

Quitting in Anticipation of Discharge Is Not “Good Cause” for Leaving Employment

The Third Department noted that quitting a job in anticipation of discharge does not constitute good cause for resignation.  Matter of Gijacalone…, 2014 NY Slip Op 06355, 3rd Dept 9-25-14 

 

Under the Circumstances, Caring for Husband While Awaiting a Kidney Transplant in Florida Did Not Constitute “Good Cause” for Claimant’s Leaving her Employment–Employer Had Offered to Accommodate Claimant with Leaves of Absence

The Third Department determined claimant voluntarily left her employment without good cause.  Claimant moved to Florida to care for her husband while they awaited a kidney transplant.  Claimant’s employer had offered to accommodate claimant’s needs for leaves of absence:

“Relocating to retire with and care for one’s spouse does not constitute good cause for leaving employment absent proof of a compelling medical necessity for the move” … . Claimant provided no medical documentation indicating that she had received medical advice to join her husband in Florida …, nor did she explain the five-month delay in relocating to Florida after she resigned. In any event, claimant’s husband received a kidney transplant six months after she resigned, and the employer indicated both that it would have granted her an additional leave of absence and that continuing work was available to her. Under these circumstances, substantial evidence supports the Board’s determination that claimant voluntarily left her employment without good cause. Matter of Marie C Lahens…, 2014 NY Slip Op 06349, 3rd Dept 9-25-14

 

Claimant Was an Employee Notwithstanding a Written Agreement Describing Her as an Independent Contractor

The Third Department determined claimant was an employee of Prometric Inc.  Claimant was hired as a nurse aide evaluator (NAE) to evaluate nursing assistant candidates.  The fact that the written agreement labeled claimant as an independent contractor was not determinative:

It is well settled that the existence of an employment relationship is a factual issue for the Board to decide and its determination will be upheld if supported by substantial evidence …. Significantly, where, as here, the work of medical professionals is involved, the pertinent inquiry is whether the purported employer retained overall control over the work performed … .

Here, Prometric developed an assessment tool to be used to evaluate the skills that a test candidate needed to perform and conducted annual training sessions with claimant and other NAEs to ensure consistency in testing. Prometric interviewed individuals that it wished to retain as NAEs and reimbursed them for mileage and travel expenses. It established an hourly rate of pay for specific work activities, but other rates were sometimes negotiated depending upon the circumstances. The work of the NAEs was performed off site either at nursing homes or training facilities and the NAEs chose their work assignments from a computer-generated list. Although the NAEs had flexibility in scheduling their assignments and did not have set hours, if an NAE was unable to show, Prometric was responsible for finding a replacement or canceling the test. Notably, Prometric provided claimant with all testing materials and other equipment needed to evaluate the candidates, had him wear an identification badge and required him to maintain strict confidentiality. Furthermore, Prometric had a senior nurse evaluator conduct an annual review of claimant’s work who assisted him in correcting any deficiencies. The foregoing indicates that Prometric retained sufficient overall control over the work of claimant and other similarly situated NAEs to be considered their employer … . Accordingly, notwithstanding the written agreement labeling claimant an independent contractor …, substantial evidence supports the Board’s decisions. Matter of Makey, 2014 NY Slip Op 06226, 2nd Dept 9-18-14

 

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Teacher’s Refusing to Agree to One Year Extension of Probationary Period Did Not Constitute Disqualifying Misconduct

The Third Department reversed the Unemployment Insurance Appeal Board and determined that a teacher’s refusing to sign an agreement that would have extended her probationary period was not disqualifying misconduct:

Refusing to comply with an employer’s reasonable directive to sign a document can constitute insubordination and, thus, disqualifying misconduct … . This is not a situation, however, in which claimant was asked, and refused, to sign a document that was necessary to the operation of the employer’s business … . Under the Education Law, where a teacher has been on probationary status for three years, the employer must either grant the teacher tenure, terminate the employment or agree to an extension of the probationary term (see Education Law § 2573 [1]; … see also Education Law §§ 2509 [1]; 3012 [1]; 3014 [1]). Here, the employer chose not to grant claimant tenure and, instead, offered her an extension of probation. As opposed to refusing to perform a job duty, claimant merely declined to enter into a new contract with the employer on its proffered terms … . Although claimant’s refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for denying unemployment insurance benefits …, the employer did not assert that claimant quit. Matter of Jackson, 2014 NY Slip Op 06237, 2nd Dept 9-18-14

 

“Contract Attorney” Properly Determined to Be an Employe

The Third Department determined an attorney who was hired by a firm as a “contract attorney” was entitled to unemployment benefits:

“[I]t is well settled that the existence of an employer-employee relationship is a factual issue for the Board to decide and its determination will not be disturbed if supported by substantial evidence” … . Inasmuch as the work at issue here involved professional services that generally do not lend themselves to close supervision or control of the details of the work, the pertinent inquiry is whether the employer has retained “overall control,” and “substantial evidence of control over important aspects of the services performed other than results or means is sufficient to establish an employer-employee relationship” … . In that regard, West hired claimant after an interview and based upon his analytical expertise acquired during a federal clerkship. West set his rate of pay at $100 an hour or on a per project basis, and provided him with a parking pass, office, desk, computer, receptionist, a firm email address and information technology support. Two attorneys supervised him, gave him instructions on how to perform his tasks, told him to ask permission before pursuing new legal issues, reviewed his work and made revisions. He was also covered under West’s malpractice insurance. In our view, the foregoing constitutes substantial evidence to support the Board’s decision that claimant was an employee of West, even if evidence exists to support a contrary conclusion… . Matter of Lavalley, 2014 NY Slip Op 06232, 3rd Dept 9-18-14

 

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Failure to Subpoena Witness Required Reversal

The Third Department reversed the Unemployment Insurance Appeal Board because the putative employer, Brody, was entitled to call the claimant as a witness in a proceeding to determine whether Brody was required to make further unemployment insurance contributions. Claimant had done work for Brody and had subsequently applied for and was granted unemployment insurance benefits. Brody asked that claimant be subpoenaed to testify but the administrative law judge (ALJ) denied the request:

Brody was entitled to call claimant as a witness and, moreover, had the right to request that the ALJ issue a subpoena to compel her attendance (see Labor Law § 622 [1]; 12 NYCRR 461.4 [c]…). Claimant plainly had relevant testimony to offer as to whether an employer-employee relationship existed between her and Brody. The ALJ nevertheless declined to issue the requested subpoena, pointing out that counsel for Brody could have subpoenaed claimant directly. The failure to either issue a subpoena or to adjourn the proceedings so that counsel could do so constituted an abuse of discretion under the circumstances of this case and, thus, “we believe that the proper course is to reverse the Board’s decision and remit this matter for further proceedings”… . Matter of Philip…, 2014 Slip Op 06129, 3rd Dept 9-11-14

 

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Hearsay Deemed Insufficient to Support Determination

The Third Department annulled the disciplinary determination because the hearsay information upon which it was based was deemed insufficient:

“While hearsay evidence in the form of confidential information may provide substantial evidence to support a determination of guilt, the information must be sufficiently detailed to allow the Hearing Officer to make an independent assessment to determine its reliability and credibility” … . Notably, where the Hearing Officer obtains such information through the testimony of a correction officer who has interviewed a confidential informant, the questioning must be thorough and specific, to allow an adequate basis to gauge the informant’s knowledge and reliability … . The Hearing Officer may not base his or her conclusion solely upon the correction officer’s assessment of the confidential informant’s truthfulness … .

Here, the captain who prepared the misbehavior report stated that an inmate he spoke with identified petitioner as the individual who told other inmates in the mosque not to participate in the ILC election process. He stated that another inmate, who he apparently did not interview, gave a note to another correction official that similarly implicated petitioner. The correction official who received the note testified that he received several confidential letters from inmates indicating that petitioner was a major participant in the scheme to force inmates to boycott the ILC election process. He stated that he personally interviewed three inmates and, without revealing their identities to the Hearing Officer, related the information that they disclosed to him.

A number of deficiencies with the in camera interview lead us to conclude that it did not provide an adequate basis for the Hearing Officer to independently assess the credibility and reliability of the confidential information. First, the captain did not provide any testimony to establish whether the inmate he interviewed had previously provided credible information to him or other officials, and he admitted that he did not even know the inmate who gave the note to the other correction official. Similarly, the correction official who interviewed the three unidentified inmates did not articulate the bases for finding their statements to be believable. Significantly, none of the letters or notes written by inmates allegedly implicating petitioner were admitted into evidence … . Further, the statements of the inmates interviewed by the two officials lacked adequate specificity to establish petitioner’s status as a leader of the boycott, or his act of threatening violence … . Given these deficiencies, and as the confidential information was instrumental to the finding of guilt, we conclude that the determination is not supported by substantial evidence and must be annulled … . Matter of Muller v Fischer, 2014 NY Slip Op 06024, 3rd Dept 9-4-14

 

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SORA Point Assessments Affirmed Over Two-Justice Dissent Arguing the Proof of Online Sexual Conduct Was Insufficient, the Evidence of “Grooming” the Victims Was Insufficient, and the Social Immaturity of the Defendant Should Have Been Considered as a Mitigating Factor

The Third Department, over a two-justice dissent, determined that the points assessed by County Court in a SORA proceeding were appropriate.  The charges were based entirely upon online communication between the defendant and three underage girls.  The decision is notable for the extensive dissent which found the evidence defendant had masturbated during online communication through a webcam, and the evidence that the defendant engaged in “grooming” the victims was insufficient, and further found that certain mitigating factors, including that defendant functioned socially at the level of a young teenager, should have been considered:

FROM THE DISSENT:

Here, the record lacks clear and convincing proof of prohibited sexual conduct with the third victim referenced in the indictment — as to whom defendant pleaded guilty to endangering the welfare of a child and aggravated harassment in the second degree. During the plea allocution, defendant admitted that he had engaged in conversations of a sexual nature with this victim, and the victim testified before the grand jury that defendant had contacted her by webcam video, during which time he touched himself in the area of his genitals, over his clothing. There was no physical sexual contact between the two at any time. As defendant argues, the grand jury testimony included too little factual detail to constitute clear and convincing evidence that he was masturbating. Although this might be inferred, it was not clearly revealed; viewed objectively, the testimony demonstrates nothing more than a brief swipe of defendant’s hand in his genital region, accompanied by innuendo. Our precedent establishes a significantly higher standard of misconduct … .

We further find that the record supports defendant’s contention that he was improperly assessed 20 points under risk factor 7 because his conduct was not “directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). The majority accepts County Court’s finding that defendant and the victims were not “strangers,” but that defendant had engaged in “grooming” behavior; we disagree. An example of grooming behavior provided in the guidelines is that of a scout leader who chose the position in order to gain access to his victims (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006]). As defendant argues, the record does not establish this type of calculated behavior on his part, nor was there a showing of emotional manipulation, undue influence or other customary indicia of grooming conduct. People v Izzo, 2014 NY 05679, 3rd Dept 8-7-14

 

Costs Properly Assessed Against Carrier for Instituting Proceedings Without Reasonable Ground

The Third Department affirmed the Workers’ Compensation Board’s assessment of costs against the carrier for instituting proceedings without reasonable ground:

Workers’ Compensation Law § 114-a (3) (i) permits the Board to assess costs against a party who has “instituted or continued [a proceeding before the Board] without reasonable ground.” Here, the carrier previously had been warned that counsel’s failure to respond to its request for an updated work search history — standing alone — would be insufficient to reopen the underlying claim and, more to the point, was apprised “in very clear terms of the requirements for [the] supporting evidence necessary to reopen this claim on the question of whether . . . claimant ha[d] voluntarily removed herself from or [wa]s no longer attached to the labor market.” Despite that express directive, the carrier nonetheless made a second request to reopen premised solely upon counsel’s failure to respond to the carrier’s request for additional information. Under these circumstances, we discern no abuse of discretion in the Board’s decision to assess costs against the carrier … . Matter of Bailey v Achieve Rehab & Nursing, 2014 NY Slip Op 05475, 3rd Dept 7-24-14

 

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