Thursday, October 20, 2016

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits


Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits
New York City Dept. of Citywide Admin. Servs. (Commissioner of Labor), 2016 NY Slip Op 06526, Appellate Division, Third Department

The New York City Taxi and Limousine Commission [TLC] had a “limited-use policy”  permitting its employees limited personal use of TLC's office and technology resources as long as such use does not interfere with official duties and responsibilities.

TLC received an anonymous complaint that an individual [Employee] was using TLC's resources to conduct his campaign for election to the City Council. TLC requested the New York City Department of Investigation [DOI] to investigate Employee’s campaign-related activities during his employment. Employee then advised TLC that he was taking a leave of absence from his position pursuant to a directive requiring him to do so upon, among other things, publicly declaring his intent to seek elected public office.

Upon completing its investigation, DOI concluded that Employee had misused TLC's resources prior to taking a leave of absence and so advised TLC. TLC terminated Employee, prompting him to apply for unemployment insurance benefits.

The Department of Labor subsequently determined that Employee was disqualified from receiving benefits because his employment was terminated for misconduct and found that Employee had made a willful misrepresentation on his application for benefits insofar as he claimed that he had been discharged for lack of work. The Department charged Employee with an overpayment of $4,050 in benefits, reduced his right to receive future benefits by eight effective days and imposed a civil penalty of $607.50.

Ultimately, the Unemployment Insurance Appeal Board upheld the Department's initial determination and penalties imposed pursuant to that determination. Employee appealed the Board’s decision.

The Appellate Division affirmed the Appeal Board’s decision, explaining "Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence," noting that “It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct.”

The court’s decision noted that evidence in the record, including the report detailing the findings of DOI's investigation, established the Employee’s use of TLC's resources, such as his work computer and telephone, to further his political campaign efforts “was extensive” and  telephone calls made from his office telephone were unrelated to Employee's employment.

Although Employee denied that he used his work computer and the telephone at TLC to pursue his campaign efforts, including soliciting contributions for his campaign, at the hearing, the Appellate Division observed that this “presented issues of credibility within the exclusive province of the Board” to resolve and the Board was entitled to credit the competing evidence presented at the hearing and reject Employee's exculpatory claims.

In addition, noted the court, Employee inaccurately represented that he was unemployed due to a lack of work when applying for unemployment insurance benefits although he had previously been made aware of DOI's investigation of him.

Accordingly, the Appellate Division said that it found “no reason to disturb the Board's imposition of a recoverable overpayment or forfeiture penalty based upon the [Employee’s] willful misrepresentations.”

The decision is posted on the Internet at:

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

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

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