Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, February 2, 2017

The End of Employees

The Wall Street Journal has a thought provoking Feb. 1, 2017 peace entitled The End of Employees. It is about how business are contracting out more and more. Why? Because it is cheaper of course. As the article states:

Steven Berkenfeld, an investment banker who has spent his career evaluating corporate strategies, says companies of all shapes and sizes are increasingly thinking like this: “Can I automate it? If not, can I outsource it? If not, can I give it to an independent contractor or freelancer?”

Hiring an employee is a last resort, Mr. Berkenfeld adds, and “very few jobs make it through that obstacle course.”

Visitors arriving at SAP, based in Walldorf, Germany, likely don’t notice that about 30 receptionists at its U.S. facilities work for contractor Eurest Services, part of Compass Group PLC. It happened in 2014 after SAP executives concluded during a review of potential outsourcing opportunities that some managers were paying their receptionists above-market wages.

SAP handed over hiring, training and oversight of receptionists to an outside firm. They were told they could leave SAP or keep their jobs through Eurest, which pays the receptionists in line with the overall market.

This is of course, nothing new. There is a ton of law concerning the issue of who is an employee which myself and others have written about. This article focuses on cost, but employers also contract out to avoid potential liability as an  employer under our labor and employment laws. This article also leaves out one important fact. While many of the contracted out employees may not be employees of the firm, they may, under certain circumstances become employees of the contractor.

Mitchell H. Rubinstein


February 2, 2017 in Employers, Employment Law | Permalink | Comments (0)

Tuesday, December 20, 2016

Intentional Misconduct Disqualifies a Nurse From Obtaining Unemployment Benefits

In New York and several other states, employees who commit misconduct are not entitled to unemployment insurance. But, what is misconduct? The closer the act comes to an intentional action, as opposed to a negligent action,  the more likely it will be found to constitute disqualifying misconduct. Matter of Trunzo v. Commissioner of Labor, ____A.D. 3d____(3rd Dep't. Dec. 15, 2016), is illustrative of this concept. As the court stated:

"An employee's violation of an employer's reasonable policy, which has a detrimental effect on the employer's interest, has been found to constitute disqualifying misconduct" (Matter of Sutton [Albany Med. Ctr.—Commissioner of Labor], 84 AD3d 1621, 1622 [2011] [citations omitted]). Here, claimant received an employee handbook and was aware of the employer's policy that a physician's order is required for any medication or therapeutic agent placed in a mediset. Claimant knew that the purpose of the policy was to keep the physician informed of any substances being combined with the patient's prescribed medications in order to address any potential harmful interactions. To the extent that claimant asserts that her conduct was unintentional as she just forgot to obtain a physician's order and that such conduct amounted to mere negligence, we note that "[w]hether a claimant's actions rise to the level of [*2]disqualifying misconduct is a factual issue for the Board to resolve" (Matter of Muniz [Mitarotonda Servs., Inc.— Commissioner of Labor], 140 AD3d 1426, 1427 [2016] [internal quotation marks and citation omitted]; see Matter of Arroyo [Dry Harbor Nursing Home—Hartnett], 145 AD2d 886, 887 [1988]). Under the circumstances here, where claimant's conduct took place over a period from November 2014 to April 2015, substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct and its decision will not be disturbed (see Matter of Strang [Memory Gardens, Inc.—Commissioner of Labor], 112 AD3d 1254, 1255 [2013]; Matter of Farnsworth [Ellis Hosp.—Commissioner of Labor], 108 AD3d 1008, 1009 [2013]; Matter of Meagher [Commissioner of Labor], 89 AD3d 1269, 1269 [2011]), notwithstanding the fact that claimant did not receive any prior warnings.

Mitchell H. Rubinstein

December 20, 2016 in Employment Law | Permalink | Comments (0)

Tuesday, November 22, 2016

Excessive Absenteeism Disqualifies Individual For Unemployment

Matter of Mead v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Nov. 21, 2016) is an interesting case. The case holds that an individual who is excessively absent can be disqualified for unemployment, reasoning:

        Excessive absenteeism, which continues despite repeated warnings, has been held to constitute misconduct disqualifying a         claimant from receiving unemployment insurance benefits (see Matter of Berkeley [Commissioner of Labor], 94 AD3d 1328,         1328-1329 [2012]; Matter of Seabrook [Commissioner of Labor], 45 AD3d 1165, 1165-1166 [2007]). Here, it is undisputed         that claimant was continually absent from work even after she was warned that further absences would result in disciplinary         action, including discharge. Although claimant [*2]maintains that she did not realize that the last warning was her final one,         this does not excuse her behavior under the circumstances presented.

I believe there is also case law finding no misconduct, for unemployment purposes, when a person is excessively absent through no fault of his own, ie because of medical issues.

Mitchell H. Rubinstein


November 22, 2016 in Employment Law | Permalink | Comments (0)

Wednesday, October 12, 2016

Supremes Grant Cert In Case That Has Implications For Summary Judgement Motions In Discrim Cases

The Supremes recently granted cert in  Zigler v. Turkmen, which involves pleading discriminatory intent. Though not an employment law case, intent and pleading issues are an important issue in employment discrimination cases-particularly in the summary judgement stage after Twombly and Iqbal. From Scotusblog, via Workplace Prof Blog, the issue in the case includes:

"whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims."

Mitchell H. Rubinstein

Hat Tip:   Workplace Prof Blog

October 12, 2016 in Discrimination Law, Employment Discrimination, Employment Law, Supreme Court | Permalink | Comments (1)

Friday, January 15, 2016

Exotic Dancers Are Employees

Exotic Island Enterprises v. Commissioner of Labor, ___A.D.3d___ (3rd Dep't. Jan. 14, 2016), raises a whole host of legal questions for which law review commentary is welcome. 

Factually, the court held that exotic dancers are employees for unemployment purposes. Applying the right to control test, the court reasoned:

The corporations challenge the brevity and thoroughness of the investigation by the Department auditor, arguing that it was insufficient to establish that the dancers were employees. However, any evidentiary gaps in the initial investigation were filled through the testimony of Slifstein and the corporations' accountant at the hearing. Slifstein testified that the venues attracted new dancers by placing advertisements in trade magazines and newspapers. Before permitting a dancer to perform at the venues, he would inquire into their prior experience, ask them what schedule they would like, and assess their appearance. If a dancer was not physically fit, he would not permit them to perform at the venues. The dancers were required to provide a driver's license or other form of identification and would not be allowed to dance at the venue if they did not do so. If a dancer lacked experience, he would instruct them to observe a more experienced dancer in order to learn how to "move sexy." Although dancers were not required to report to work at any set time, upon advising the owner of their availability, they would be placed on a nightly schedule posted in the venue for the patrons to view. The venues set the prices that the dancers would charge patrons for private dances and retained a percentage of the money earned. Although the dancers provided their own makeup and costumes, the venue provided the stage for the dancers to perform on, sound equipment and, at times, the music accompanying the dances. The corporations' accountant also testified that the corporations carried workers' compensation coverage for the dancers. Thus, despite other evidence that may have supported a contrary result, we find the Board's decision that the corporations exercised sufficient direction and control over the dancers to be supported by substantial evidence (see Matter of Enjoy the Show Mgt. [Commissioner of Labor], 287 AD2d 822, 822-823 [2001]; see also Matter of Human Performance, Inc. [Commissioner of Labor], 28 AD3d 971, 972 [2006]).

If this is so and a dancer is sexually harassed, can they bring a Title VII case, an OSHA case is their is a safety issue etc. I would think so. 

Mitchell H. Rubinstein

January 15, 2016 in Employment Law, Law Review Ideas | Permalink | Comments (10)

Thursday, July 16, 2015

DOL Issues Administrator Interpretation on Employee Status

On July 15, 2015, Wage and Hour Administrator David Weil issued Administrator Interpretation No. 2015-1 entitled "The Application of the Fair Labor Standard's Act's "Suffer or Permit" Standard in the Identification of Employees Who Are Misclassified as Independent Contractors",  Download DOL

There are no surprises here. The DOL simply summarized the applicable case law that applies the multiple factor economic reality test as opposed to the common law right to control test to determine employee status:

Ultimately, the goal is not simply to tally which factors are met,  but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The factors are a guide to make this ultimate determination of economic dependence or independence.... The Supreme Court "has consistently construed the Act 'liberally to apply to the furthest reaches consistent with congressional direction,' recognizing that broad coverage is essential to accomplish the [Act's] goal. . . ."

The DOL makes no mention of the fact that there are at least two other tests utilized in other employment employment statutes (a hybrid economic reality test and common law right to control test; statutory purpose test) or any of the scholarly literature concerning employee status. 

While the DOL was focusing on the FLSA and on some level it is understandable why they simply focused on the economic reality test, I believe that some mention of these other tests was warranted because employers should not assume that simply because an individual is an employee under the FLSA does not mean that he or she is going to be an employee under Title VII, where for example, a hybrid test is often utilized.

Several years ago, I wrote a law review article which addressed many of these issues. Employees, Employers and Quasi Employees. 

Mitchell H. Rubinstein

July 16, 2015 in Employment Law, Federal Law, FMLA, Labor Law | Permalink | Comments (0)

Friday, February 6, 2015

Despite Failure to Call In, Claimant Is Entitled To Unemployment

Matter of Pratt (Cellular Sales) v. Commissioner of Labor, ____A.D.3d___(3d Dep't. 2015), is an interesting Unemployment decision. I bring it to the readers' attention because it demonstrates how, courts, in my view, often tip the balance in favor of the discharged employee. We all know that an employee is not eligible for unemployment for misconduct, but what is misconduct? The court explains:

The employer contends that claimant engaged in disqualifying misconduct by failing to abide by its call in policy prior to being absent for two consecutive shifts and that this amounted to a resignation under the provisions of the employee manual. Initially, we note that whether an employee's actions rise to the level of disqualifying misconduct for unemployment insurance purposes is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Cardenas [Metropolitan Cable Communications, Inc.—Commissioner of Labor], 118 AD3d 1234, 1234-1235 [2014]; Matter of Andrews [A.C. Roman & Assoc.—Commissioner of Labor], 118 AD3d 1216, 1216-1217 [2014]). Here, claimant stated that he was unaware of the employer's call in policy and did not contact his supervisor prior to his absences on August 20 and August 21 because he thought that this had been taken care of when he reported to his supervisor that he was locked out of the system, at which point he could not perform any work. In view of this, as well as the absence of any indication that claimant had time or attendance problems in the past, the Board could reasonably conclude that claimant did not engage in disqualifying misconduct (see Matter of Jaiyesimi [ISS Action Inc.—Commissioner of Labor], 114 AD3d 983, 984 [2014]). Accordingly, substantial evidence supports the Board's decision and we decline to disturb it.

Mitchell H. Rubinstein

February 6, 2015 in Employment Law | Permalink | Comments (0)

Friday, October 31, 2014

Strippers Are ‘Employees' Under Nevada Wage Law

Sometimes you cannot make these cases up. Dancers who perform at a Nevada strip club are employees, not independent contractors, and therefore are covered by the state's minimum wage law, the Nevada Supreme Court rules in a unanimous opinion (Terry v. Sapphire/Sapphire Gentlemen's Club, Nev., No. 59214, 10/30/14).

A copy of this decision can be found on the Nevada Supreme Court's web site, here. In a 20 page decision, the Court applies the economic realities test that is also applied in FLSA cases.

Mitchell H. Rubinstein

October 31, 2014 in Employment Law | Permalink | Comments (1)

Tuesday, September 30, 2014

NYS Dep't. of Labor applies right to control test to determine employee status

Dunno v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Sept. 25, 2014), is an interesting case. The court held that a security guard was an employee and not an independent contractor. The court applied the common law right to control test, reasoning:

 In making such a determination, the Board considers whether the putative employer exercised control over the [*2]results produced or the means used to achieve those results, with the means being the more important consideration (see Matter of McCollum [Fire Is. Union Free School Dist.—Commissioner of Labor], 118 AD3d 1203, 1204 [2014]; Matter of Joyce [Coface N. Am. Ins. Co.—Commissioner of Labor], 116 AD3d 1132, 1134 [2014]). Here, the testimony of both claimant and Anthony Stone, the principal of ASISS, established that claimant completed an application for employment and was hired at a rate of pay established exclusively by Stone. ASISS assigned claimant to a specific location, established his hours of work and covered him under its workers' compensation insurance. Furthermore, it provided him with an employee code of conduct and required him to call in to an automated system at the beginning and end of each shift, to sign a time sheet and to submit incident reports. The client was not informed that claimant was an independent contractor, claimant was required to request time off two weeks in advance and ASISS would find a replacement if claimant was unavailable for his shift. Claimant was required to adhere to the company dress code by wearing a dark suit and tie, as well as a company lapel pin, while on duty. Furthermore, any complaints about claimant's performance would be handled by ASISS and claimant would receive his pay even if the client did not pay ASISS. Accordingly, while there was other evidence in the record suggestive of an independent contractor relationship, we find that substantial evidence supports the Board's determination that claimant was an employee (see Matter of Anwer [Exclusive Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d 1114, 1115 [2014]; Matter of Lamar [Eden Tech., Inc.—Commissioner of Labor], 109 AD3d 1038, 1039 [2013]).

This decision is highlighted because it illustrates some of the factors courts examine in determining employee status. However, the decision is not particularly well written because it merely stated that other evidence in the record supported the opposite conclusion (that the individuals were independent contractors) and the court did not weigh this evidence.

Mitchell H. Rubinstein

September 30, 2014 in Employment Law | Permalink | Comments (2)

Monday, August 4, 2014

Instructor at Yoga School Is An Employee

Matter of Yoga Vida v. Commissioner of Labor, ___A.D. 3d___(3d Dep't. July 31, 2014), is an interesting case.  In the context of Unemployment, the court had to decide whether a Yoga instructor was an employee. In concluding that she was, the court applied the right to control test and reasoned:

                Classes were held in Yoga Vida's studios and students were solicited by the                 company. [*2]Yoga Vida published class schedules on its website and set the duration of                 each class. Instructors were compensated by check according to a negotiated rate, with                 some instructors preferring a set rate for each class and others electing to take a percentage                 of the fees that were collected from students who attended classes. Patton averred that                 the  instructors were an integral part of Yoga Vida's business (see Matter of Professional                 Career Ctr., Inc. [Commissioner of Labor], 105 AD3d 1219, 1220 [2013]), and he                 personally ensured that they were properly certified and had adequate training and                 expertise to conduct classes. While Yoga Vida disputed that it supervised the instructors,                 Patton conceded that he would personally address instructors regarding their manner of                 instruction if it posed a risk of injury to the students or if they were otherwise engaged in                 conduct that he found objectionable. Overall, despite the existence of evidence that could                 result in a contrary result, the record contains substantial evidence to support the Board's                 decision that Yoga Vida had sufficient control over the instructors' work, thereby allowing                 for a finding of an employer-employee relationship (see Matter of Anwer [Exclusive                 Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d at 1115; Matter of                 Human Performance, Inc. [Commissioner of Labor], 28 AD3d 971, 972 [2006]; Matter of                 Fitness Plus [Commissioner of Labor], 293 AD2d 909, 910 [2002])

Mitchell H. Rubinstein

August 4, 2014 in Employment Law | Permalink | Comments (0)

Sunday, March 9, 2014

Interesting Faithless Servant Decision

Henry v. Concord Limousines, Inc., ___ F. Supp. 2d ___(E.D.N.Y. 2014)(Faithless servant doctrine allows car service to seek disgorgement of bribes to dispatcher.) 
Mitchell H. Rubinstein

March 9, 2014 in Employment Law | Permalink | Comments (0)

Wednesday, February 19, 2014

Delay in Termination Does Not Change The Fact That Employee Not Eligible For Unemployment

Matter of Capello v. Commissioner of Labor, ___A.D.3d___(3rd Dep't. Jan. 16, 2014), is an interesting case. The employee tried to argue that he was not terminated for misconduct because the employer delayed firing him. The employee was absent a week after the incident and it then took the employer 2 weeks to investigate. 

Mitchell H. Rubinstein

February 19, 2014 in Employment Law | Permalink | Comments (0)

Sunday, February 16, 2014

Hospital Employee States Whistleblower Cause of Action

Galbraith v. Westchester Medical Center, ___A.D.3d___(2d Dep't. Jan. 15, 2014), is an interesting read. A hospital  perfusionist stated a cause of action under N.Y. Labor Law Section 741. He alleged that  alleging that he was demoted in retaliation for his objections to the rapid infuser policy, which he voiced because he was concerned that it threatened the quality of patient care. 

Note, that this is a public sector employment law case. The law is far my restrictive in the private sector in New York.

Mitchell H. Rubinstein

February 16, 2014 in Employment Law, Employment-At-Will & Exceptions | Permalink | Comments (0)

Wednesday, January 29, 2014

Several States Raised Minimum Wage

According to Findlaw which picked up an article from US Today, several states raised their minimum wage effective January 1, 2014. As they explain:

Workers in 13 states will see the minimum wage increase in 2014, including New Jersey, Connecticut, California, New York, and Rhode Island, reports USA Today.

Californians will eventually see the state minimum wage rise to $10 by 2016, but will have to wait until July 2014 to see it rise to $9 per hour. (In cities such as San Jose and San Francisco, however, the local minimum wage already exceeds $10 an hour.)

Mitchell H. Rubinstein

January 29, 2014 in Employment Law | Permalink | Comments (0)

Thursday, January 23, 2014

Employment Agency Is Not Employer

Matter of John Lack Associates (Commissioner of Labor), ___A.D. 3d___ (3rd Dep't. Dec. 5, 2013), is an interesting decision. In applying the Right to Control test, the court concludes that an agency that hired waitresses is not their employer, reasoning:

John Lack provides its clients with individuals fitting the client's requirements for each particular event. The agency neither interviews nor screens the workers, other than to ensure that they have the necessary uniform and equipment. However, the workers generally provide their own uniform and equipment. Although the client may provide a uniform on occasion, John Lack does not. After being retained by a client, John Lack contacts individuals from its lists and explains the details and requirements of the available job. The individual is free to refuse a job and may do so, for example, if the pay rate offered is unacceptable. Notably, most of the waiters and bartenders accept work from other placement agencies. If the worker accepts the job offered by John Lack, the agency directs him or her to report to a representative of the client at the event. However, it is the client that instructs, controls and supervises the worker at the event. In this regard, the client explains the rules of conduct to the worker and, if a worker's performance is not satisfactory, the client will instruct the individual to leave or fire him or her from the job. There is no indication in the record that John Lack provides workers with any training.

With regard to payment, the client is responsible for tracking the number of hours worked by the waiter or bartender and then completes an event report and submits it to John Lack so that payment can be tendered to the worker. Although workers are paid by John Lack, their remuneration is based upon the rate of pay offered by the client to John Lack for each particular job. Additionally, on at least one occasion, when a worker was injured on a job, the client paid the worker's hospital bills. Under these circumstances, we are unable to conclude that substantial evidence exists in the record to support the Board's decision that John Lack exercises sufficient control over the workers to establish an employer-employee relationship (see Matter of Richins [Quick Change Artistry, LLC—Commissioner of Labor, 107 AD3d at 1344; Matter of Holleran [Jez Enters., Inc.—Commissioner of Labor], 98 AD3d at 757; Matter of Mulholland [Motherly Love Care—Commissioner of Labor], 258 AD2d 855, 758 

Mitchell H. Rubinstein

January 23, 2014 in Employment Law | Permalink | Comments (0)

Sunday, January 19, 2014

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]).

Mitchell H. Rubinstein


January 19, 2014 in Employment Law | Permalink | Comments (0)

Sunday, January 12, 2014

Opting Out of Workers Comp??

Workplace Prof Blog has an interesting posting about Oklahoma which is considering opting out of mandatory Workers Comp. It is worth reading.

Mitchell H. Rubinstein

January 12, 2014 in Employment Law | Permalink | Comments (0)

Sunday, December 22, 2013

Catering Surcharge Not ‘Tip' Under FLSA or New York Law Before 2011

A mandatory 11 percent surcharge added to certain customer invoices by a New York catering business was not a tip owed to food delivery workers under the Fair Labor Standards Act, nor was it a gratuity within the meaning of the New York Labor Law prior to January 2011. Maldonado v. BTB Events & Celebrations, Inc., ___F.Supp. 2d__ (S.D.N.Y. 11/22/13).

However, the court stated that revised state law regulations effective Jan. 1, 2011, require employers to show by “clear and convincing evidence” that they provided sufficient notice to customers that a specific charge was not a gratuity, and the company failed to meet that standard

December 22, 2013 in Employment Law | Permalink | Comments (0)

Thursday, November 14, 2013

Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Matter of Tkachyshyn (Commissioner of Labor), 2013 NY Slip Op 06057, Appellate Division, Third Department
Volodymyr I. Tkachyshyn, a substitute teacher and math tutor, filed three claims for unemployment insurance benefits.
Although initially deemed eligible for benefits in each instance, following Appellate Division’s decision in Leazard v TestQuest, Inc., 74 AD3d 1414, the Department of Labor issued revised decisions finding that earnings in connection with tutoring services through TestQuest, Inc. was not covered employment for the purposes of qualifying for unemployment insurance benefits “given that tutors such as [Tkachyshyn] were independent contractors.”
The Appellate Division commented that in “TestQuest, Inc. tutors such as claimant were deemed by this Court to be independent contractors … which decision is conclusive and binding upon all such persons employed by TestQuest, Inc.,” citing Labor Law §620[1][b].* Thus, said the court, those earnings cannot qualify for inclusion as remuneration in the base periods to determine eligibility for unemployment insurance benefits.**
As the record establishes that Tkachyshyn did not have sufficient covered earnings to file a valid original claim pursuant to Labor Law §527 in either his base period or alternate base period for any of the three claims, the Appellate Division found that substantial evidence supports the Board's decision and dismissed his appeal.
* §620[1][b] of the Labor Law, in pertinent part, provides that the hearing officer’s “decision shall not be deemed limited in its effect to the immediate claimant making the claim for benefits but shall be deemed a general determination of such questions with respect to all those employed by such person or employer for all the purposes of this article, and such decision shall be conclusive and binding upon the claimant and such person or employer…”.
** The Appellate Division noted that “notwithstanding the absence of any fault on the part of Tkachyshyn, he was charged with a recoverable overpayment of federal emergency unemployment compensation funds. Whether Tkachyshyn was eligible for a waiver of recoverability of those benefits was referred back to the Department of Labor and was not at issue on this appeal.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

November 14, 2013 in Employment Law | Permalink | Comments (0)

Thursday, November 7, 2013

The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct

2013 NY Slip Op 05942, Appellate Division, Third Department
A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.
The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*
Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.
The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.
Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.
The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.
As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.
* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

November 7, 2013 in Employment Law | Permalink | Comments (0)