EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

Here is another interesting case - Mailed and Filed: AUGUST 05, 2011 IN THE MATTER OF: Appeal Board No. 554048:

 "FINDINGS OF FACT: The claimant worked for seven years at a health plan, ending with the title of recertification representative. In the course of investigating another employee, the employer discovered e-mails between that employee and the claimant which the employer found objectionable. The other employee was a close friend of the claimant's both at work and outside of work. The claimant's e-mails to her co-worker involved the claimant's contention that a member of the employer's Human Resources staff had referred her to the employer's Employee Assistance Program and was requiring her to attend anger management counseling that she didn't need, and that the therapist was producing a report for the Human Resources staffer to express the therapist's opinion that the claimant didn't need anger management counseling. The claimant also referred to the Human Resources staffer using a Spanish word that the employer understood to mean a filthy and revolting woman. The claimant sent the last of these objectionable e-mails on the morning of February 12, 2010. Approximately one week before the claimant was discharged, the employer sent an e-mail warning the claimant and approximately six other employees against sending personal or derogatory e-mails. The claimant apologized for any offense that she might have committed. The employer had previously issued a final warning to the claimant dated January 22,2010 based on her participation in a shouting match with another employee within ear shot of other co-workers, which disrupted the workplace and undermined the employer's maintenance of a pleasant, safe work environment. The warning also referred to a recent counseling for insubordination based on "inappropriate, challenging behavior towards" management. The final warning did not specifically mention e-mails.The employer fired the claimant on February 23, 2010 for her use of the employer's e-mail system to send messages that were derogatory and insubordinate in nature. The employer found that the claimant misrepresented the Employee Assistance Program by stating that the therapist was going to report to the employer on the claimant's therapy needs. The Employee Assistance Program is provided by an outside company, and not by the employer directly. The Human Resources staffer understands that the Employee Assistance Program therapist only advises the employer that a claimant is  "incompliance" or "not in compliance" with counseling, with no further elaboration. Misrepresentation of the Employee Assistance Program process could cause employees to question whether their participation in this program would be confidential as theemployer promised. The Human Resources staffer also found the claimant's use of the derogatory Spanish word in reference to herself to be insubordinate. The misrepresentation of the Employee Assistance Program was the communication that the employer found most objectionable.After she was fired, the claimant filed a claim for benefits over the internet and certified that she lost her job when she was "discharged" by the employer. The Department of Labor's website did not offer the claimant any way of explaining that she was "fired."From the week ending March 14, 2010 through the week ending June 13, 2010, theclaimant received $345 in regular benefits and $25 in FAC benefits each week.