Wednesday, January 4, 2017

WHEN DOING SOMETHING OFF THE JOB IS MISCONDUCT



MATTER OF ROY v. Commissioner of Labor, 2016 NY Slip Op 2885 - NY: Appellate Div., 3rd Dept. 2016:

"Substantial evidence supports the Unemployment Insurance Board's determination that claimant was discharged from his position as a food service worker in a nursing home due to disqualifying misconduct. Claimant was obligated "even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation" (Matter of Markowitz [New York City Human Resources Admin.—Roberts], 94 AD2d 155, 156 [1983]; see Matter of Punter [Ross], 43 NY2d 743, 744 [1977]; Matter of Moniz [Nucor Steel Auburn, Inc.—Commissioner of Labor], 126 AD3d 1251, 1252 [2015]). Here, the record contains evidence that claimant created violent and sexually explicit videos using "LEGO" characters, including characters depicting the executive director of the nursing home, claimant's department head and two female coworkers, and posted the videos online. Although claimant testified that he was depicting celebrities and fictional characters in his movies, and not his coworkers, this presented a credibility issue for the Board to resolve (see Matter of Manieson [Commissioner of Labor], 119 AD3d 1312, 1313 [2014]; Matter of Portis [Commissioner of Labor], 118 AD3d 1195, 1196 [2014]). Under these circumstances, we perceive no basis to disturb the Board's determination that claimant engaged in disqualifying misconduct."

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