Labor & Employment Law

Disqualifying misconduct bars unemployment insurance award

By Harvey Randall, Esq.

Disqualifying misconduct bars unemployment insurance award
Matter of Mosher v Commissioner of Labor, 41 A.D.3d 1005, Appellate Division, Third Department

Bryan R. Mosher worked as a police officer for the City of Batavia from 2004 until his suspension in October 2005. He applied for unemployment insurance benefits based on his suspension from his position. Mosher ultimately resigned from his position in December 2005.

The Department of Labor initially decided that Mosher was ineligible to receive benefits because his employment was terminated due to misconduct. A Labor Department Administrative Law Judge [ALJ] overruled this initial determination, finding that Mosher?s actions did not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law.

The Unemployment Insurance Appeal Board affirmed the ALJ?s ruling and Batavia appealed.

Batavia?s testimony at the administrative hearing set out a lengthy list of infractions of police department policies and procedures committed by Mosher. However, the Administrative Law Judge determined that Mosher was eligible for unemployment insurance benefits because there did not appear to be a single, discreet incident of misconduct that formed the basis for his termination.

The Appellate Division, however, disagreed with this conclusion, observing that:

It is well settled ? that ?employee behavior that is detrimental to an employer?s interest and persists despite repeated warnings can be construed as disqualifying misconduct.?

According to the decision, the police chief?s testimony established that Mosher was counseled numerous times regarding violations of the police department?s rules and regulations, had previously received a one-day suspension for tardiness, and was given additional training. All such efforts failed to alleviate the deficiencies in Mosher?s performance.

In addition, the Appellate Division found that the notice of discipline issued to Mosher recited numerous examples of disqualifying misconduct, including, among other things, repeatedly reporting late for duty, falsifying a time record, inappropriately using radio transmissions and disobeying a direct order to handle a felony complaint before leaving work.

The Appellate Division?s conclusion: there was no substantial evidence to support the Board?s conclusion that Mosher was entitled to receive unemployment insurance benefits.

The Board?s decision was reversed and the matter returned to the Unemployment Insurance Appeal Board ?for further proceedings not inconsistent with this Court?s decision.?

Full post as published by New York Public Personnel Law on March 27, 2008 (boomark / email).