The Interweb of Lies: Why Employers May Want to Look a Little Closer at Claimants’ Job Searches

Stop the presses — the majority of job applications are completed online now!

Obviously, this comes as no surprise in the realm of New York Workers’ Compensation Law — the Full Board Panel handled this precise issue in Matter of Suffolk County Health Services (2016 NY Wrk. Comp. 0713095). Ultimately, the Full Board slightly modified the landmark decision of American Axle and determined that, when applying online, the claimant must either:

  1. Provide a confirmation e-mail or reference number; or
  2. If no such evidence is available, document the date he or she made the online application, the position applied for, and the name of the website used.

Unfortunately, this advancement in technology has created a new Monster (not to be confused with the job search website, which ironically would help solve this problem): How easy would it be for a claimant to simply write down a date, position applied for, and a name of a website used to apply?

On April 21, 2016, the Third Department handled this issue, albeit tepidly. In Matter of Cruz v. Buffalo Bd. Of Educ., the employer argued claimant made a material misrepresentation in violation of Workers’ Compensation Law § 114-a. This allegation was based on the testimony of a vocation counselor, who contacted the 34 companies the claimant allegedly applied to by telephone. The counselor could only confirm that two of the companies had received an application, but she was unable to get in touch with 17 of the other companies and could not provide any names of individuals she had spoken to with regards to the remaining 15 companies.

As such, the Third Department determined that, while the claimant did not present sufficient evidence to prove attachment to the labor market, the employer also lacked credible evidence that claimant knowingly made a false statement or misrepresented a material fact in order to obtain benefits. Had the employer undergone an investigation that resulted in more physical evidence to prove claimant’s fraudulent behavior, the Third Department likely would have changed its tune.

Thus, if you review the claimant’s evidence of a job search and red flags start popping up, it may be worth the extra time and expenses to hire a professional to investigate a little deeper into the veracity of these applications. While this extra scrutiny may prove fruitless, it also may evince either voluntary removal from the labor market or, in more extreme cases, the beginning of a fraud claim.

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