Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, September 27, 2010

Employee Fired For Misconduct Not Eligible For Unemployment


Matter of Peters v. Commissioner of Labor, ___A.D.3d____(3rd Dep't. June 24, 2010), is a tough case. In finding that an employee committed misconduct by failing to document his inability to report to work, the court explained:

The failure to return to work following an authorized absence has been found to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits (see Matter of Conescu [Commissioner of Labor], 67 AD3d 1234, 1235 [2009]; Matter of McCullough [Publisher's Clearing House — Commissioner of Labor], 307 AD2d 567, 568 [*2][2003]). Here, it is undisputed that claimant did not report to work as scheduled at the end of his authorized vacation. Although he maintained that he experienced problems with customs that delayed his return for several days, he admittedly did not provide the employer with requested documentation to substantiate his claim. In addition, the employer's representative testified that claimant left a message advising that he could not return to work on the date scheduled, but failed to indicate when he could return to work. Although claimant maintained that he advised the employer's representative of his return date, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Alvarado [Commissioner of Labor], 273 AD2d 563, 564 [2000]). Given that claimant was absent from work without authorization and did not take the steps necessary to protect his employment, substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct (see Matter of Jimenez [A & L Pen Mfg. Corp. — Commissioner of Labor], 27 AD3d 941, 942 [2006]).

Mitchell H. Rubinstein

Employment Law | Permalink


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