EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

A common issue with respect to employee's right to speak is addressed in Mailed and Filed: DECEMBER 11, 2012 IN THE MATTER OF: Appeal Board No. 567018:

"OPINION: The credible evidence establishes that the claimant was discharged on April 9, 2012, because he used nicknames for his co-workers that were construed asdefamatory, offensive, and harassing. It has been held that offensive behavior in theworkplace, including the utterance of religious or ethnic slurs, is conduct that isdetrimental to the employer's interest and can constitute misconduct, (Matter of Selzer,241 AD2d 743). Even though the employer has a personnel policy prohibiting unlawfulor unwelcomed harassment, we note that the employees in the maintenance departmentcommonly used the nicknames to describe coworkers. The board has previously foundno misconduct where profanity or offensive language was commonly used in theworkplace and generally accepted, even though there was policy prohibiting suchconduct (AB 544101). While the employer has drawn a distinction between the claimant'sstatements and another employee's use of a discriminatory word, the claimant was noton notice that he would be terminated for such behavior. As such, the claimant could nothave reasonably anticipated that using nicknames would place his job in jeopardy or thathe would be discharged. Furthermore, the employer witness did not immediately reportthe incident to the employer. Therefore, the conduct was not so egregious that theclaimant needed to be immediately removed from his employment. Under these circumstances, the claimant did not engage in misconduct and so his employment endedunder non-disqualifying conditions.