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February 06, 2019

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"


Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"
Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while employed simultaneously being employed by VEEB. The problem was that the employee was alleged to have conducted some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work.

This resulted in the employee being charged with and found guilty of, misconduct, characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."
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