NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT AND FINAL WARNING

From IN THE MATTER OF: Appeal Board No. 554787 (AUGUST 24, 2011):

"The credible evidence establishes that on June 28, 2010, the claimant allowed a registered nurse to sit on his knee with his arm around her waist in the nurses' station while she put his cell phone on "vibrate" and told an LPN she could send her cell phone picture of this to his home e-mail. We recognize that the claimant was on a general final warning facing the consequence of discharge for any further violation of the employer's policies. However, the final warning of May 18 had to do with a HIPAA violation that the claimant incurred by accessing a former patient's medical records without authorization. This was unrelated to the final incident on June 28. Specifically there was no image in the LPN's cell phone photo of any patients on the unit which would have been in violation of patient privacy rules under HIPAA. The conduct that the claimant "allowed" from his subordinates reflected yet another instance of his general exercise of poor professional judgment under the circumstances, rather than a repeat of what he had already been warned for. Therefore, we conclude that the claimant could not have known from the May 18 warning that his job would be in jeopardy for the incident of June 28. We also note that the employer's witness admitted that the claimant had never been trained in requisite skills necessary to be an efficient supervisor. Thus, we are not persuaded by the employer's citations to Court cases in which claimants were found to have committed misconduct for a repeated violation of a specific employer policy after final warning. We conclude that the claimant, a long term employee, failed to meet the employer's standards for good professional judgment in a variety of situations. However,we have long held that poor performance is not misconduct. While an employer may discharge an unsatisfactory employee for any legal reason, not all discharges for cause rise to the level of misconduct for unemployment insurance purposes. Accordingly, we conclude that the claimant lost his job under non disqualifying conditions and is eligible for benefits."