Wednesday, September 14, 2016

Misconduct and Eligibility for Unemployment Compensation

Here's a common question:  I was fired from my job because of alleged misconduct.  Am I entitled to unemployment compensation?  The answer is:  maybe.

In New York, a discharged employee is entitled to unemployment compensation unless they either quit or engaged in misconduct.  Misconduct for purposes of unemployment compensation is defined as "willful and wanton disregard of the employer's interest."  (In re Wlos, 839 N.Y.S.2d 330 (NYAD 2007)).  Just because you did not get along with your boss is not enough for a finding of misconduct. Even where a former employee's "personal traits provided a basis for discharge, but unless those traits rise to the level of misconduct, they are not a proper basis for the denial of unemployment insurance benefits."  (Llano v. Levine, 377 N.Y.S.2d 808 (NYAD 1976)).  Hence, just because the boss "didn't like your attitude and you didn't like hers," Raven v. Levine, 338 N.Y.S.2d 183 (NYAD 1972), a finding of misconduct is not warranted.

In order to find misconduct, the unemployment compensation board will look to whether or not the alleged misconduct adversely affected the employer's interest.  For example, if your job is taxicab driver and you refuse to accept a fare, you will be found to have engaged in misconduct.  (AB A-750-1284).

Another thing to consider is whether your conduct would "sustain a finding that the claimant should have realized that her conduct would probably provoke her discharge and there is certainly no substantial evidence to support an inference that the claimant desired to have her employment cease." (Raven, supra).  This notion of engaging in conduct that "provoked" your discharge is found only when the employee knew or should have known that his/her conduct would result in dismissal and engaged in the conduct anyway.

And what if the employer is claiming actual misconduct but it is just not true?  Well, the unemployment compensation process affords you the opportunity to participate in a hearing (usually by telephone) with an administative law judge, who will take testimony from both the employee and the employer and determine whether or not the misconduct occurred. 
The question of whether or not conduct in the workplace rises to the level of "misconduct" or "resignation" is a fact specific question.  Give Charny & Associates a call for a free consultation (845-876-7500) and we will let you know what we think and whether you have a claim for unemployment compensation benefits.

Nathaniel K. Charny


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