Knocking Down Barriers to Unemployment Benefits - McDermott Will & Emery

Knocking Down Barriers to Unemployment Benefits


After managing her own mental health issues since she was a child, Lisa Smith* decided to become a social worker so she could help others struggling with mental health issues.

Lisa earned a Master of Social Work and then took a job counseling people with disabilities and their support staff on how to control various (sometimes dangerous) behaviors. But the work soon became overwhelming. Lisa was working 10- to 12-hour days, serving 40 clients in five different locations and completing extensive paperwork. The load exacerbated her symptoms of anxiety and depression, and although she spoke with her employer about her concerns and transitioned to a different role, the conditions did not improve.

Lisa’s therapist recommended that Lisa leave her job and seek other employment, which she did.


As a recent graduate, Lisa did not have a financial safety net. To help pay her bills while she searched for a new job, she applied for unemployment benefits with the New York State Department of Labor (DOL). The application was denied. To mount a successful appeal, Lisa needed to demonstrate that she had made efforts to preserve her employment and ultimately had “good cause” for leaving her job.


Through Volunteers of Legal Service, Lisa connected with a McDermott pro bono team, Andrew Kratenstein and Cindy Ham. She retained the team to help her appeal the denial and secure unemployment benefits.


Following a hearing before an administrative law judge, the court granted Lisa her full benefits.

The McDermott team guided Lisa through every step of the legal process, advised on her testimony, direct-examined her, cross-examined Lisa’s former employer and dismantled the DOL’s arguments for denying her benefits.

The DOL alleged that Lisa failed to take a leave of absence to try to preserve her employment. With the McDermott team’s help, Lisa established that she had in fact tried to preserve her employment by switching to a new position within her company. The DOL also claimed that Lisa did not provide contemporaneous evidence of mental health issues during the time she was an employee. To counter that argument, with Lisa’s permission, the McDermott team secured notes from her therapy sessions during the time she was employed. The notes corroborated Lisa’s testimony that her therapist recommended that she leave the job because of her increasing mental health challenges.

The court agreed with McDermott’s arguments, holding that the record established 1) Lisa had resigned for good cause because the job exacerbated her mental health issues and 2) she had tried to preserve her employment by changing positions before separating. Accordingly, the court found that Lisa was entitled to full unemployment benefits.


Lisa has found new employment as a school social worker, where she will help children who suffer from mental health issues. She was extraordinarily grateful for the McDermott team’s work and the result that they were able to achieve together.

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* Name changed to protect anonymity.