A momentary lapse in judgment resulting in the employee’s termination may not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law
Sullivan (Brookville Ctr. for Children's Servs., Inc.-- Commissioner of Labor), 2014 NY Slip Op 08703, Appellate Division, Third Department
A claimant for unemployment insurance benefits [Claimant] had been employed for almost seven years. She was terminated from her position as the result of her violating the employer's written policy prohibiting employees from posting on social media "during work hours, unless for specific and approved business purposes."
The Unemployment Insurance Appeal Board determined that Claimant was entitled to receive unemployment insurance benefits because, in its view, she had not lost her job due to disqualifying misconduct. The employer appealed.
The Appellate Division commenced its discussion by noting that “The question of whether a claimant engaged in actions sufficient to disqualify him or her from receiving unemployment insurance benefits is a factual one for the Board to resolve.” Further, court said that the Boar’s “determination will not be disturbed if supported by substantial evidence."
The court explained that not every discharge for cause rises to the level of misconduct, which is defined as "a willful and wanton disregard of the employer's interest."
Noting that Claimant did not dispute that she was aware of the employer's policy on social media usage and that she nevertheless posted an item during work hours, the Appellate Division commented that the record indicated that it was “an isolated incident” and that Claimant had a clean disciplinary record prior to her termination.
Citing Matter of Nangreave, 107 AD3d 1211, the court sustained the Board’s determination as “Substantial evidence thus supports the determination of the Board that ‘Claimant's’ behavior, while reflective of a momentary lapse in judgment, did not rise to the level of disqualifying misconduct”
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