Tuesday, July 16, 2013


A recent decision from the Third Department should be noted by counsel for Claimants (and perhaps a direction for counsel to Employers.

The case is Matter of Lopresti (Commissioner of Labor) 2013 NY Slip Op 05035 Decided on July 3, 2013 Appellate Division, Third Department and I note the following quote:

"Even where an employee has been fired for legitimate reasons, the [*2]"behavior may fall short of misconduct and, therefore, he or she may still be entitled to receive benefits" (Matter of Dunham [Commissioner of Labor], 68 AD3d 1328, 1329 [2009]; see Matter of Clum [All-Lifts, Inc.— Commissioner of Labor], 51 AD3d 1171, 1172 [2008]). Although a knowing violation of an employer's established policies that has a detrimental effect on the employer's interests can constitute disqualifying misconduct (see Matter of Spierto [Commissioner of Labor], 78 AD3d 1365, 1365 [2010]; Matter of Clum [All-Lifts, Inc.—Commissioner of Labor], 51 AD3d at 1172; see also Matter of Briskie [Commissioner of Labor], 98 AD3d 786, 786-787 [2012]), we find that claimant's misconduct in this case did not rise to a disqualifying level. While we do not quarrel with the Board's finding that claimant violated the employer's established policies, which provided a basis for terminating her employment, the hearing testimony reveals that claimant's actions were in keeping with a longstanding practice that was at least partially condoned by her former supervisor and were necessary because claimant did not have check writing authority. Moreover, inasmuch as she was terminated immediately after her new supervisor learned of this practice, claimant was unable to demonstrate her willingness to reform her conduct consistent with this supervisor's expectations. Significantly, the record is devoid of any evidence that claimant misappropriated program funds or that her actions were detrimental to the employer. As a result, even though claimant's transgression provided justification for her termination, we cannot conclude on the record before us that substantial evidence supports the Board's decision to disqualify her from receiving benefits (see Matter of Spierto [Commissioner of Labor], 78 AD3d at 1366; Matter of Dunham [Commissioner of Labor], 68 AD3d at 1329-1330)."

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