EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

Here is the opinion in Mailed and Filed: AUGUST 05, 2011 IN THE MATTER OF: Appeal Board No. 554048:

"OPINION: The credible evidence establishes that the employer fired the claimant for sending a co-worker/friend e-mails that the employer judged to be derogatory and insubordinate. The employer had previously warned the claimant about inappropriate workplace interactions and insubordination. Notably, however, these warnings involved inappropriate verbal interactions and did not involve inappropriate usage of the employer's e-mail system. The employer did not warn the claimant regarding her e-mail communications until approximately one week before her February 23, 2010 firing. Thus,we calculate that the warning regarding e-mails was issued on or about February 16,2010. The record shows that the claimant sent her last offending e-mail on February 12,2010. After receiving the employer's warning, the claimant apologized for any past offenses she may have committed, and she subsequently sent no further inappropriate e-mails. Thus, the record shows that the claimant had not received any prior relevant warnings at the time when she sent the e-mails now at issue. As a result, the claimant was not on notice that sending these e-mails could jeopardize her employment.Accordingly, we conclude that the claimant's actions do not constitute disqualifying misconduct for purposes of the Unemployment Insurance Law and the claimant is entitled to benefits. It logically follows, and we further conclude, that the claimant did not receive an overpayment of benefits."