Articles Posted in Unemployment

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Yarelyn Mena and Edgar M. Rivera, Esq.

For a claimant to qualify for unemployment insurance benefits, the claimant, among other things, must have lost their job through no fault of their own. This generally means if the claimant was terminated, it must not have been for misconduct. Usually, whether the reason for termination rises to misconduct is simple: stealing, harassment, or fighting is misconduct while forgetfulness, occasional lateness, or being unable to do the job is not. The following two cases are examples of uncertainty; uncertainty in whether the behavior amounts to misconduct and uncertainty as to what actually happened.

In the first case, claimant Shawn Roy appealed his disqualification from receiving unemployment insurance benefits on the grounds that there was no misconduct. The Appellate Division found substantial evidence that supported the Unemployment Insurance Board’s determination that Mr. Roy was discharged as a food service worker due to disqualifying conduct, specifically, he created “violent and sexually explicit videos using LEGO characters, including characters depicting the executive director of the nursing home, claimant’s department head and two female coworkers, and posted the videos online.” The Board was convinced that Mr. Roy was obligated “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him… ” As such, the Board decided that the videos constituted misconduct and, as a result, he was disqualified for collecting unemployment insurance benefits. This case is a lesson in that at least in some circumstances, legal conduct outside of work can constitute misconduct.

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On October 8, 2014, attorneys for a class of plaintiffs from twelve states filed a notice of motion requesting court approval of a $12 settlement in the case Evan Hightower et al v. Washington Mutual Bank et al. (Defendant was later terminated and replaced by J.P. Morgan Chase, N.A.) The lawsuit is a fairly straightforward Fair Labor Standards Act (FLSA) action brought against the financial giant by non-exempt employees from the company’s retail branch offices– Chase tellers, bankers, assistant branch manager trainees and sales specialists–who allege that they “(1) performed work ‘off-the-clock’ and, accordingly, were not properly paid all the wages owed for hours worked (including overtime hours worked); (20 were not provided duty-free meal periods and rest breaks; (3) were not provided accurate itemized wages statements; (4) were not reimbursed for all expenses incurred in the performance of their duties; and (5) were not paid all wages due upon cessation of employment.”

This class action, filed in 2011 in the Central District of California, consilidates thirteen separate lawsuits filed against J.P. Morgan Chase Bank (“Chase”) in the last two years, each involving similar allegations under the applicable state laws as well as the FLSA. Noting that Plaintiffs and their expert had reviewed over three million payroll records, over 7 million time-clock records, and over 204 million transactions records, the court approved distribution of $3,600,000 million for attorney’s fees and $200,000 for plaintiffs’ costs, as well as $25,000 for regulatory penalties and $222,500 for incentive and service awards for named plaintiffs.

The remaining $7,952,500 is to be distributed to the approximately 145,000 members of the settlement class according to a formula: the number of hours worked, multiplied by the average pay for their position at their location. The resulting total is then multiplied by the applicable State Modifier, in order to cover additional state law claims.

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On June 23, 2014, Justice Hunter of the New York State Supreme Court issued a judgment and order in the Vanacore v. City of New York and New York City Administration for Children’s Services (ACS). In that case, petitioner Ralph Vanacore alleges that he was wrongfully terminated and seeks a judgment vacating ACS’s decision to terminate his employment and reinstating him to his position with back pay and benefits. His other request, which is more at issue in the present Court order, is that ACS reimburse him for all medical expenses he incurred as a result of being wrongfully terminated.

Prior to his termination, Vanacore had worked for ACS as a caseworker for over twenty years. He then suffered a job-related injury in April of 2012, after which he took approved medical leave. While on leave, he received a letter dated March 11, 2013 which indicated that he must “resolve his employment status.” To that end he was presented with several options: first, he could return to work with a doctor’s statement saying he was able to work, either with or without restrictions; second, if he could not return to work, he could file for social security or some other benefits; third, he could resign; or fourth, if he chose none of these first three options, he would be terminated. The letter referred to Section 71 of the Civil Services Law, which states that “…an employee who has been continuously or cumulatively due to a work-related injury absent for one year or more, may be separated from staff.”

Mr. Vanacore had been on worker’s compensation leave for almost one year when he received the letter. He then returned to work on April 15, 2013, and provided a doctor’s note saying he could work, but soon after returning he started another medical leave due to the same work-related injury. On June 24 he was again admitted to the hospital, where he stayed for two days. The next day, on June 25, the hospital informed him that he no longer had insurance coverage through his employer and would be responsible for paying all of his medical expenses himself. Only then did he learn that the City had, unbeknownst to him, terminated his employment effective June 14, 2013.

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On January 1st, about thirty-seven stores across the state of Colorado were able to legally sell marijuana for recreational use for the first time, as a result of the state’s legalization and regulation of the drug pursuant to a law passed on November 2012. Many marijuana activists have celebrated the passage of this law as a great success for their efforts. However, employees must be aware that the new law includes a provision allowing employers to retain the ability to have policies restricting their employees’ use of marijuana.

Pursuant to Amendment 64 of the new law, employees opting to consume recreational marijuana in the privacy of their homes may be subject to dismissal by employers who decide to administer drug tests, despite the fact that Colorado allows for legal consumption of the drug. Because urine drug tests, which are the tests commonly used by employers, do not indicate when the drug was last ingested, a positive result does not allow employers to determine whether the drug was used during working hours or not. Under the Amendment, employers retain full discretion to establish their marijuana policies. As a result, employers having a strict no-drug policy may thus not care whether the employee consumed the drug during non-working hours and the law does not provide protections for employees.

Critics of this provision argue that Amendment 64 imposes a double standard because employees will face the risk of being penalized for consuming marijuana while off-duty, whereas they do not face this risk for consuming alcohol in the privacy of their homes. Furthermore, an employer may decide to fire an employee based on the results of a medical tests even where the employee’s off-duty activities do not affect his or her performance.

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The Department of Labor (“DOL”) recently issued a Final Rule amending portions of the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”) and Section 503 of the Rehabilitation Act of 1973. The Rule creates new obligations for certain employers in relation to affirmative action and nondiscrimination of veterans and disabled individuals. It is designed to provide relief to these employees, who often face difficulties in finding a job as a result of their status. The Rule establishes requirements aiming to increase the number of workers hired by federal contractors who fall under these categories.

Pursuant to the new changes, employers and their subcontractors engaged in employment contracts with the federal government in excess of $10,000 must take affirmative steps to hire, employ and provide equal employment opportunities to veterans and disabled individuals. Employers will have the obligation to record their efforts and results in an Affirmative Action Plan (AAP), which may be reviewed and analyzed by the DOL’s Office of Federal Contract Compliance Programs (OFCCP). This office has established a nationwide employment benchmark of seven percent (7%) for qualified disabled individuals and eight percent (8%) for veterans for qualifying employers.

Furthermore, employers must conduct an annual utilization analysis ensuring that these benchmarks are met, and identifying problem areas to establish specific programs tackling any issues. Contractors must create and maintain a record of quantitative comparisons for a period of three-years, reflecting the number of disabled individuals and veterans who apply for jobs and are employed by the con. To keep track of these figures, contractors must also encourage applicants to identify themselves as disabled individuals or veterans while applying for the jobs and after accepting employment offers. Additionally, employers must invite these employees to self-identify every five years, according to the language specified on the OFCCP website. Moreover, the Final Rule requires contractors to allow review of documents and records by the OFCCP per request, and maintain the Office informed of all formats in which it maintains records. Employers subject to the VEVRAA will also be under the oversight of the DOL’s Veterans’ Employment and Training Service (VETS).

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The U.S. Department of Labor is supporting the State of Oregon’s Self-Employment Assistance Program with a federal grant of $332,576, to support entrepreneurship, and promote business startups. This aid is part of the Department of Labor’s initiative to improve the federal Unemployment Insurance program, which was expanded through the Middle Class Tax Relief and Job Creation Act of 2012.

Created in 1995, the Self-Employment Assistance Program is designed to aid business entrepreneurs in focusing on developing their business and in making it more profitable. Individuals enrolled in the program may continue receiving financial assistance equal to unemployment insurance without fulfilling the state’s work search requirements. The program protects startup founders owners for six months, when they must either continue searching for jobs or withdraw from the assistance program.

The Self Employment Assistance Program will be using the federal grant to improve one-on-one counseling for entrepreneurs to help them succeed. Also, the funds will help implement intensive training for potential entrepreneurs and improve online services.

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In the years since the recession, income inequality has been exacerbated by the replacement of middle-class with low-income jobs. According to Labor Department data, the total number of workers earning the minimum wage or less has increased over 100%. In a similar study, the Royal Bank of Scotland found that roughly half of the jobs created in the United States in the past three years have been low-paying jobs.

Some of the strongest job growth has been in in leisure and hospitality, which added 43,000 jobs, 38,100 of which were at bars and restaurants. Retail jobs also increased, growing by 27,700. While growth in these areas is perhaps a sign of stronger consumer spending, these jobs are mostly low-wage and low-benefit. Given the amount of Americans currently working in low-paying jobs the administration has pledged to increase the minimum wage.

In President Obama’s State of the Union speech last February, he said:

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Here’s the good news: the economy is adding jobs at a rate that leaves economists optimistic. The Labor Department released the employment data for April late last week: those numbers were fairly strong, with 165,000 jobs added. Even better was the government’s revisions of the figures from February and March—in both periods, tens of thousands more jobs were created than previously thought.

Altogether, it adds up to a healthy 196,000 jobs added per month since the beginning of 2013. On the other hand, as New Yorker blogger John Cassidy points out, other macroeconomic indicators are less promising: GDP growth, for example, remains weak. More concretely, too many people are still unemployed; the “recovery” is painfully absent for millions. The New York Times reports that “the jobless rate remains far higher than it typically would be this far into a recovery.”

As we noted, there haven’t been this many Americans unemployed for six months or more since the 1940s.

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We’ve written several times recently about the discrimination faced by the unemployed when looking for new work.

A study out of Northeastern University found that “candidates with long gaps in their resumes received fewer callbacks than the candidates with shorter gaps — even if the fictional resume showed no experience relevant to the job.”

A worker enters “long-term” unemployment after six months without a job; there are more such workers now than any time since the 1940s. In the study, which submitted fictional resumes to real job openings, resumes representing recently jobless workers without relevant experience were called back at a rate of nine percent; resumes representing long-term unemployment that did have relevant experience were called back at a rate of three percent.

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With a glut of potential workers to choose from, some companies are being extraordinarily choosy. The New York Times wrote about employers who are “Wait[ing] for Perfection.”

The article paints a harrowing picture of the current job search process:

[E]mployers are bringing in large numbers of candidates for interview after interview after interview. Data from, a site that collects information on hiring at different companies, shows that the average duration of the interview process at major companies like Starbucks, General Mills and Southwest Airlines has roughly doubled since 2010.

“After they call you back after the sixth interview, there’s a part of you that wants to say, ‘That’s it, I’m not going back,’ ” said Paul Sullivan, 43, an exasperated but cheerful video editor in Washington. “But then you think, hey, maybe seven is my lucky number. And besides, if I don’t go, they’ll just eliminate me if something else comes up because they’ll think I have an attitude problem.”

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