Welcome to Glass Krakower LLP's Unemployment Lawyer Blog!

Glass Krakower LLP frequently represents claimants in downstate New York at hearings and appeals before Administrative Law Judges. Common issues are:

(1) independent contractor and self employment eligibility issues;

(2) voluntary quit or resignation or leaving employment with good cause determinations;

(3) misconduct determinations;

(4) willful misrepresentation determinations (including claims while earning over $405 gross per week or not reporting all days worked);

(5) collateral estoppel effect of arbitration decisions;

(6) partial benefit week determinations; and

(7) availability or capability of working determinations (including availability to work while overseas or on vacation).

Feel free to contact us at bg@glasskrakower.com or (212) 537-6859 if you wish to schedule a consultation and evaluation regarding your upcoming hearing. We also will evaluate whether you may have a wrongful discharge or wage and hour claim for damages worth pursuing as well.

Tuesday, February 25, 2014

Delayed termination does not authorize benefits based on misconduct

Matter of Cappello (Commissioner of Labor)
2014 NY Slip Op 00265
Decided on January 16, 2014
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 16, 2014

516394 In the Matter of the Claim of 

[*1]CHRISTINE M. CAPPELLO, Respondent. ELRAC LLC, Appellant.



Calendar Date: November 25, 2013 
Before: Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ. 

Rivkin Radler LLP, Uniondale (Scott R. Green of 
counsel), for appellant. 
Cynthia Feathers, Glens Falls, for Elrac LLC, 

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 11, 2012, which ruled that claimant was entitled to receive unemployment insurance benefits.
From August 2007 until March 2011, claimant worked as a station manager for a car rental company at a major airport. On December 26, 2010, following an extensive snowstorm that disrupted public transportation, claimant's manager authorized her to rent a sports utility vehicle at a discounted rate so that she could drive to her home, but expected her to return the vehicle on December 30, 2010 when she reported to work. She returned the vehicle when she arrived at work on December 30, 2010, but when it became apparent that she did not have a ride home, she had one of her employees extend the rental contract at the discounted rate. She later had another employee extend the contract for additional days at the discounted rate. Claimant returned the vehicle and ended the rental on January 14, 2011. As the result of an audit report prepared on January 17, 2011, the employer discovered that claimant had the rental contract extended at the discounted rate by having other employees perform the transactions on the computer. The employer investigated the incident and, upon concluding that claimant violated the employer's policy and committed theft, discharged her on March 4, 2011. Claimant was initially disqualified from receiving unemployment insurance benefits on the ground that she lost her employment through misconduct, and this decision was upheld by an Administrative Law Judge following a hearing. The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits. The employer now appeals. [*2]
The Board concluded that claimant did not lose her employment due to misconduct because the employer delayed in terminating her after learning of her actions and did not provide a reasonable excuse for the delay. We find, however, that this conclusion is not supported by the record. The employer became aware of claimant's inappropriate conduct on January 17, 2011 and immediately proceeded to conduct an investigation, obtaining a statement from one employee on January 21, 2011. Although claimant was apparently absent from work for a week in February 2011, the employer obtained a statement from her on February 23, 2011 as part of its continuing investigation. The employer discharged claimant less than two weeks later. Under the circumstances presented, we do not find that the employer engaged in an inordinate delay in terminating claimant such that it could not rely upon her misconduct as the reason for her discharge.
It is well settled that an employee's dishonesty or failure to comply with an employer's policy and procedures constitutes disqualifying misconduct (see Matter of Jenkins [Commissioner of Labor], 109 AD3d 1073, 1073 [2013]; Matter of Farnsworth [Ellis Hosp.—Commissioner of Labor], 108 AD3d 1008, 1009 [2013]). Here, the evidence is undisputed that claimant violated the employer's policy governing employee rentals by having other employees complete rental contracts for her at an unauthorized discounted rate. Given claimant's misconduct, substantial evidence does not support the Board's decision that she was entitled to receive benefits (see Matter of Brown [Lincoln Ctr. for Performing Arts—Commissioner of Labor], 83 AD3d 1231, 1232 [2011]; Matter of Takser [New York Compensation Rating Bd.—Commissioner of Labor], 63 AD3d 1478, 1480 [2009], lv dismissed 13 NY3d 810 [2009]). Therefore, its decision must be reversed.
Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision. 

Tuesday, January 21, 2014

Qutting for being overwhelmed may not qualify for benefits

Feeling Overwhelmed Is Not Sufficient Reason For Quitting Job For Unemployment Purposes

Matter of Basciano (Commissioner of Labor), ___A.D.3d__ (3rd Dep't. Dec. 5, 2013), is an interesting unemployment case. As the court explains:
Claimant, a credit manager, notified the employer that he was overwhelmed and was going to look for other work. He further agreed to leave when his replacement was hired, even if he had not yet secured a new job. Claimant's replacement began working approximately two weeks later, marking the end of his employment. Inasmuch as claimant agreed to leave his position even if he lacked a definite plan for future employment, substantial evidence supports the determination of the Unemployment Insurance Appeal Board disqualifying him from receiving unemployment insurance benefits (see Matter of Solano [Commissioner of Labor], 50 AD3d 1425, 1426 [2008]; Matter of Kennedy [Commissioner of Labor], 294 AD2d 700, 700 [2002]).

Tuesday, April 2, 2013

March 31, 2013

Locked Out Employees Are Entitled To Unemployment

The North Dakota Supreme Court recently  ruled that American Crystal Sugar workers locked out of their jobs in a labor dispute are eligible for unemployment benefits(Olson v. Job Serv., N.D, No. 2013-ND-24, 2/26/13).
March 31, 2013 in Employment Law | Permalink
Hat tip: adjunctprofessorlawblog.com