FOSTER V SVENSON - ART AND RIGHT OF PRIVACY

Many years ago, I was consulted on a similar (but less "Rear Window") matter where an individual was, without consent, prominently featured in a crowd scene in a music video. There is much commentary on this case (I just read about it in Readers Digest):

Foster v. Svenson 2013 NY Slip Op 31782

On October 24, 2013, the Appellate Division, First Department (M- 4562/ Index No. 651826/13) issued the following order:

"An appeal having been taken to this Court from the order of the Supreme Court, New York County, entered on or about August 5, 2013,

And plaintiffs-appellant having moved for an order in the nature of a preliminary appellate injunction pursuant to CPLR 5518 directing defendant-respondent from refraining from all display, dissemination and sale of the subject photos and from photographing plaintiffs-appellants and/or their children in their apartment, pending hearing and determination of the appeal taken therefrom,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is ordered that the motion is granted to the extent that defendant-respondent is enjoined from photographing plaintiffs and their children in their apartment and from displaying disseminating and/or selling the subject photographs of plaintiffs and/or their children, pending hearing and

determination of the appeal, on condition the appeal is perfected on or before January 27, 2014 for the March 2014 Term."

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.
 

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."

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.

EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

The opinion in Appeal Board No. 555846 was as follows:

"OPINION: The credible evidence establishes that the claimant was discharged on April 29, 2010, because the employer believed she had violated its policy on confidential information. I find that the terms of the "annual" statement of compliance that the claimant had signed almost two years before her discharge were too vague to have placed her on adequate or reasonable notice that her conduct in discussing her subordinate's work-related issues with his wife, who was also an employee, was either prohibited by the policy or would lead to her discharge. Although the claimant may have performed poorly, and exercised poor judgment, in her capacity as a supervisor, this does not rise to the level of  misconduct for unemployment insurance purposes. Accordingly, I conclude that the claimant was not separated under disqualifying circumstances, although an employer may discharge an employee for any lawful reason. As the claimant was not disqualified, she was entitled to receive benefits and was not overpaid. Regarding the allegation of wilful misrepresentation to obtain benefits, the record does not reflect the choices the claimant was presented as to the reason of separation at the time she filed her claim. Accordingly, I am unable to conclude that the claimant made a knowing, intentional, or deliberate false statement to obtain benefits in selecting inability to meet performance or production standards. Moreover, even crediting the employer's contention that the claimant was told she was discharged for breach of confidentiality and inappropriate communications, her choice would not have been unreasonable under the circumstances, considering that that the claimant had at some point been counseled about poor performance for inappropriate communications."

EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

Also noteworthy is Mailed and Filed: NOVEMBER 04, 2011 IN THE MATTER OF: Appeal Board No. 555846. The facts were as follows:

"FINDINGS OF FACT: The claimant worked as an environmental services supervisor at a hospital for about two and a half years. On July 11, 2008, she signed the employer's"Annual Statement of Compliance," which stated under the heading "Confidentiality Agreement" that the signatory understood that she could not repeat information that she may hear at work or in meetings, and that all records of the employer are private and confidential whether patient or business related.

The claimant believed that one of her subordinates had performance problems. She had also received some complaints concerning his personal hygiene. She provided him with a copy of a performance audit regarding some of these deficiencies, but she was not confident that he would take the necessary steps to improve his performance. The claimant was too embarrassed to confront this employee concerning his personal hygiene. This employee's wife also worked for the employer, as a unit secretary. The claimant felt she had a rapport with her subordinate's wife. The claimant approached her at work and suggested that she, the wife, prepare some checklists for her husband, for example on how to properly clean a patient room, to help him improve his performance. She also at some point told the employee's wife about the complaints regarding his hygiene. As a result, the employee and his wife complained to management about the claimant. On April 29, 2010, the employer discharged the claimant, because it concluded she had breached its confidentiality policy and had engaged in "inappropriate communications." The claimant had at some point been counseled for her poor performance as a supervisor regarding poor or inappropriate communications. The employer later sent the claimant a discharge letter that did not provide a specific reasonfor discharge."

EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

Noteworthy is the following Appeal Board case:

Mailed and Filed: OCTOBER 17, 2008 IN THE MATTER OF: Appeal Board No. 542073

"OPINION: The credible evidence establishes that the claimant occasionally engaged in salary discussions with other managers. However, the record fails to establish that the claimant obtained salary information for other employees in a nefarious manner. In reaching this conclusion, we find it significant that the employer's human resources vice president admitted that she never specifically questioned the claimant about how he obtained salary information on other employees. In addition, the record also fails to establish that the claimant knew or should have known that he could be discharged for having other employees unlock employer offices during his shift so he could procure supplies. Nor are we persuaded that the claimant's private discussions with fellow managers about salaries constituted a violation of employer rules. However, even if these discussions were technically a violation of employer rules, it is well established that not all such violations constitute misconduct. (See: Matter of Vassallo, 125 AD2d 771)Accordingly, we conclude that while claimant may have demonstrated poor judgment by engaging in salary discussions with other employees, his behavior does not rise to the level of misconduct for purposes of Unemployment Insurance."

EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

Here is an Appellate Division, 3rd Department case on this issue:

"MATTER OF VASSALLO

125 A.D.2d 771 (1986)

In the Matter of the Claim of Deborah A. Vassallo, Respondent. Upstate Federal Credit Union, Appellant. Lillian Roberts, as Commissioner of Labor, Respondent

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 4, 1986

Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.

---

Levine, J.

Claimant was discharged from her position as a teller with the Upstate Federal Credit Union (Credit Union) after allegedly disclosing confidential information to a third party in contravention of the Credit Union's rules. The local unemployment insurance office initially ruled that claimant was disqualified from receiving unemployment benefits on the ground that she had lost her employment as a result of misconduct in connection therewith. That determination was sustained by an Administrative Law Judge (ALJ) after a hearing. The Unemployment Insurance Appeal Board reversed the ALJ and held

[ 125 A.D.2d 772 ]

that, although claimant had disclosed confidential information in contravention of her employer's work rules, her conduct did not rise to the level of disqualifying misconduct. This appeal by the employer ensued. We now affirm.

Testimony adduced at the hearing before the ALJ established that a Credit Union member named Platt applied for a loan at the office in which claimant was employed and requested that all information about the loan be held in strict confidence. According to the Credit Union, Platt intended to use the loan proceeds to set her daughter up in business but wanted her daughter to believe that the funds consisted of accumulated savings. Claimant was acquainted with Platt, her daughter, and her daughter's employer, the proprietor of a manicure shop, having met and associated with them through her biweekly manicure appointments. Claimant testified that as a result of that acquaintance, it was Platt's habit to conduct her Credit Union business at claimant's teller window and that Platt had in fact cashed her loan check with claimant. When doing so, according to claimant, Platt informed claimant that she had obtained the loan for her daughter and then engaged in a lengthy conversation with claimant regarding the particulars of the proposed business venture.

Subsequently, Platt complained to the Credit Union that claimant had revealed to her daughter and to her daughter's employer the existence and purpose of the loan. Claimant was discharged as a result. Credit Union representatives offered proof that claimant had previously been given copies of a work rule requiring that employees keep all Credit Union member transactions confidential and that claimant had admitted to having discussed the loan with Platt's daughter. Claimant contended at the hearing that she only became aware of the loan through her conversation with Platt and was of the impression that it was not intended to be kept confidential. Additionally, she testified that although she had discussed the proposed new business with Platt's daughter, she did not inform either her or her employer of the loan. Claimant submitted into evidence a statement purportedly signed by the daughter's employer which stated that claimant had not discussed the loan with her.

Given the foregoing, there was substantial evidence to support the Board's determination that claimant could reasonably have believed that Platt did not desire to keep the existence of her loan confidential and that claimant's conduct in discussing the loan with Platt's daughter did not constitute misconduct. Not every technical violation of a work rule which results in

[ 125 A.D.2d 773 ]

an employee's termination rises to the level of misconduct (see, Labor Law § 593 [3]; Matter of Tarver [Ross], 64 A.D.2d 760, 761). Under the circumstances of Platt's disclosure of the existence of the loan to claimant and claimant's prior acquaintance and relationship with Platt and her daughter, claimant's conduct here could rationally have been viewed as a good-faith error in judgment rather than disqualifying misconduct (see, Matter of Figueroa [Levine], 50 A.D.2d 998).

Decision affirmed, without costs."

EMPLOYEES RIGHT TO SPEAK - NEW YORK UNEMPLOYMENT INSURANCE

A matter came to me for my review. I was not retained but the topic interested me. Unemployment Insurance benefits was denied to a claimant on the grounds that claimant violated company policy by disclosing confidential information to another employee. Basically, claimant, a non supervisor, told fellow EE A that claimant heard that fellow EE B was the subject of an investigation.

On the surface, it appeared to be office gossip but claimant was warned on a previous occassion not to "gossip" when claimant told fellow EEs that EE C was in the hospital.