Labor & Employment Law

Unauthorized absence is disqualifying misconduct for purposes of qualifying for unemployment insurance benefits

Unauthorized absence is disqualifying misconduct for purposes of qualifying for unemployment insurance benefits
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved

There is no right to collect unemployment insurance. If an employee is terminated for misconduct, she is not eligible to collect. The question becomes what is misconduct. Matter of Britter v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Aug. 7, 2008), holds that an employee who was discharged for unauthorized absences is not eligible for misconduct. The court, however, left the door open a bit. If the employee could have established that she was legitimately ill on the days in question there is language in the decision that indicates that the result may have been different. As the court stated:

A claimant's unauthorized absence from work has been found to constitute misconduct disqualifying the claimant from receiving unemployment insurance benefits (see Matter of Sedlack [Commissioner of Labor], 40 AD3d 1235, 1236 [2007]; Matter of Chiou [Commissioner of Labor], 22 AD3d 1024, 1024 [2005]). Claimant here conceded that she did not get the manager's approval prior to taking the days off because she felt the manager was unapproachable. Although she maintained that she was sick on the days in question, this presented a question of credibility for the Hearing Officer to resolve given that she had requested these days off in advance (see Matter of Kessler [Commissioner of Labor], 40 AD3d 1236, 1237 [2007]). Consequently, we find no reason to disturb the Board's decision.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on September 08, 2008 (boomark / email).