Tuesday, May 29, 2012

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - SEXUAL HARASSMENT

Here is a recent case from the Appeal Board - in this case, the conduct occurred while claimant was on a break off-premises but in uniform:

Mailed and Filed: MARCH 26, 2012

IN THE MATTER OF: Appeal Board No. 562761:

"OPINION: The credible evidence establishes that the claimant lost his job, in part, because the senior vice-president accused him of behaving in a lewd manner as a female passed by him, a charge denied by the claimant. (The claimant was also accused of making inappropriate comments, but at the hearing the senior vice-president conceded she could not hear anything that the claimant said.) However, even if the claimant behaved in the manner of which he was accused, the record does not establish that his behavior rose to the level of misconduct for the purpose of establishing eligibility for unemployment insurance. The employer has no policy prohibiting sexual harassment, but only a policy requiring basic good manners. It is noteworthy that when the employer suspended and then discharged the claimant, it referenced the smoking and cell phone use, not merely the alleged behavior towards the woman. While his behavior, if true, would certainly be inappropriate and would justify the employer's decision to discharge him, the record does not establish that the claimant knew or should have known that he was placing his job in jeopardy. Accordingly, I conclude that the claimant was separated from employment was under non disqualifying circumstances."

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