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Friday, October 28, 2011

Violating workplace rules may disqualify dismissed individual for unemployment insurance benefits


Violating workplace rules may disqualify dismissed individual for unemployment insurance benefits
Smith v Commissioner of Labor, 296 AD2d 803

Violating the employer's policy or work rules concerning sexual harassment may result in the termination of the employee. It may also disqualify the individual for unemployment insurance benefits.

The Appellate Division, Third Department, said that it is clear that an employee who is terminated because he or she "knowing" violated his or her employer's established policy or workplace rules may have been dismissed for "disqualifying misconduct" for the purposes of his or her eligibility for unemployment insurance benefits is concerned. In the Smith case, the Appellate Division, citing the Campbell decision, [In Re Campbell, 271 AD2d 787], demonstrated this principle in a case involving an employee's termination for violating the employer's policy prohibiting sexual harassment.

William F. Smith was fired for violating his employer's policy prohibiting its employees from "sending inappropriate communications by e-mail." When his application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board, Smith sued.

According to the evidence introduced in the course of an unemployment insurance administrative hearing, Smith had sent "questionable e-mail" to his co-employees to notify them of a meeting with the subject line reading "NUDE PICTURES - NUDE PICTURES". Smith's explanation for this: he had used the phrase as a means of gaining the attention of his readers.

About a year later Smith was fired following his sending an e-mail to his co-employees containing a list of "Top Ten" sayings at second jobs. One of the sayings listed by Smith: "Another table dance?"

At the unemployment insurance hearing, Smith's supervisor testified that after this episode he told Smith that "that this language violated the employer's policy against sexual harassment and the misuse of electronic communications." The supervisor also testified that he had told Smith that his repeating such inappropriate conduct would be severely sanctioned. Smith testified at the hearing that he had never received any such warning.

The Appellate Division sustained the Unemployment Insurance Appeals Board's decision that Smith had lost his employment under disqualifying circumstances -- i.e., he lost his employment due to his misconduct.

The court said that there was substantial evidence in the record to sustain the Board's determination and any issue concerning the credibility of the testimony of witness was for the Board to resolve.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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