A recent decision from the Third Department should be noted by counsel for Claimants (and perhaps a direction for counsel to Employers.
The case is Matter of Lopresti (Commissioner of Labor) 2013 NY Slip Op 05035 Decided on July 3, 2013 Appellate Division, Third Department and I note the following quote:
"Even where an employee has been fired for legitimate reasons, the [*2]"behavior may fall short of misconduct and, therefore, he or she may still be entitled to receive benefits" (Matter of Dunham [Commissioner of Labor], 68 AD3d 1328, 1329 [2009]; see Matter of Clum [All-Lifts, Inc.— Commissioner of Labor], 51 AD3d 1171, 1172 [2008]). Although a knowing violation of an employer's established policies that has a detrimental effect on the employer's interests can constitute disqualifying misconduct (see Matter of Spierto [Commissioner of Labor], 78 AD3d 1365, 1365 [2010]; Matter of Clum [All-Lifts, Inc.—Commissioner of Labor], 51 AD3d at 1172; see also Matter of Briskie [Commissioner of Labor], 98 AD3d 786, 786-787 [2012]), we find that claimant's misconduct in this case did not rise to a disqualifying level. While we do not quarrel with the Board's finding that claimant violated the employer's established policies, which provided a basis for terminating her employment, the hearing testimony reveals that claimant's actions were in keeping with a longstanding practice that was at least partially condoned by her former supervisor and were necessary because claimant did not have check writing authority. Moreover, inasmuch as she was terminated immediately after her new supervisor learned of this practice, claimant was unable to demonstrate her willingness to reform her conduct consistent with this supervisor's expectations. Significantly, the record is devoid of any evidence that claimant misappropriated program funds or that her actions were detrimental to the employer. As a result, even though claimant's transgression provided justification for her termination, we cannot conclude on the record before us that substantial evidence supports the Board's decision to disqualify her from receiving benefits (see Matter of Spierto [Commissioner of Labor], 78 AD3d at 1366; Matter of Dunham [Commissioner of Labor], 68 AD3d at 1329-1330)."
Showing posts with label Violation of Company Policy. Show all posts
Showing posts with label Violation of Company Policy. Show all posts
Tuesday, July 16, 2013
Tuesday, June 15, 2010
UNEMPLOYMENT INSURANCE - MISCONDUCT
Here is the most recent case I found on violation of company policy as misconduct from the Appellate Division, 3rd Dept:
IN MATTER OF BRAUNEISEN v. GEICO INS. CO., 2010 NY Slip Op 03217, [3d Dept 4-22-2010]
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed December 5, 2008, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.
Meredith Brauneisen, East Islip, appellant pro se.
Collazo, Florentino & Keil, L.L.P., New York City (John P. Keil of counsel), for Geico Insurance Company, respondent.
Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.
Before: Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ.
MEMORANDUM AND ORDER
Claimant worked as a telephone adjuster for the employer. Claimant's employment was terminated after it was discovered that the ringer of her telephone had been turned off in violation of the employer's written standards of conduct. In her
application for unemployment insurance benefits, claimant denied violating company policy and was initially awarded benefits. The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. The Board
also charged her with a recoverable overpayment of benefits and imposed a forfeiture penalty upon finding that she made a willful misrepresentation to obtain benefits. The Board adhered to its decisions upon reconsideration and claimant now appeals.
Substantial evidence supports the Board's decision finding that claimant's employment was terminated due to disqualifying misconduct. "It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct" (Matter of Wise [Commissioner of Labor], 19 AD3d 795, 795 [2005] [citations omitted]; see Matter of Cruz [Commissioner of Labor], 54 AD3d 1082, 1083 [2008]). The record establishes that claimant was aware that the employer considered manipulating the telephone to avoid customer contact to be grounds for termination. Further, claimant's supervisor testified that he was monitoring claimant's phone activity the day of the termination and, after noting an unusual absence of incoming calls into her extension, he discovered that the telephone's ringer had been turned off. Although claimant admitted that she had turned the telephone's ringer off on one
occasion in the past, she testified that she did not turn it off on the day in question. This created a credibility determination for the Board to resolve (see Matter of McFarlane [Commissioner of Labor], 51 AD3d 1317, 1318 [2008], lv denied
11 NY3d 710 [2008]). Moreover, substantial evidence supports the Board's determination that, by stating that she had not violated a company rule or policy in her application for benefits, claimant made a willful misrepresentation to obtain benefits (see Matter of Barbera [Commissioner of Labor], 28 AD3d 973, 975 [2006]).
Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur.
ORDERED that the decisions are affirmed, without costs.
IN MATTER OF BRAUNEISEN v. GEICO INS. CO., 2010 NY Slip Op 03217, [3d Dept 4-22-2010]
Appeals from two decisions of the Unemployment Insurance Appeal Board, filed December 5, 2008, which, upon reconsideration, adhered to its prior decisions ruling, among other things, that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.
Meredith Brauneisen, East Islip, appellant pro se.
Collazo, Florentino & Keil, L.L.P., New York City (John P. Keil of counsel), for Geico Insurance Company, respondent.
Andrew M. Cuomo, Attorney General, New York City (Dawn A. Foshee of counsel), for Commissioner of Labor, respondent.
Before: Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ.
MEMORANDUM AND ORDER
Claimant worked as a telephone adjuster for the employer. Claimant's employment was terminated after it was discovered that the ringer of her telephone had been turned off in violation of the employer's written standards of conduct. In her
application for unemployment insurance benefits, claimant denied violating company policy and was initially awarded benefits. The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct. The Board
also charged her with a recoverable overpayment of benefits and imposed a forfeiture penalty upon finding that she made a willful misrepresentation to obtain benefits. The Board adhered to its decisions upon reconsideration and claimant now appeals.
Substantial evidence supports the Board's decision finding that claimant's employment was terminated due to disqualifying misconduct. "It is well settled that failure to abide by a known policy of the employer can constitute disqualifying misconduct" (Matter of Wise [Commissioner of Labor], 19 AD3d 795, 795 [2005] [citations omitted]; see Matter of Cruz [Commissioner of Labor], 54 AD3d 1082, 1083 [2008]). The record establishes that claimant was aware that the employer considered manipulating the telephone to avoid customer contact to be grounds for termination. Further, claimant's supervisor testified that he was monitoring claimant's phone activity the day of the termination and, after noting an unusual absence of incoming calls into her extension, he discovered that the telephone's ringer had been turned off. Although claimant admitted that she had turned the telephone's ringer off on one
occasion in the past, she testified that she did not turn it off on the day in question. This created a credibility determination for the Board to resolve (see Matter of McFarlane [Commissioner of Labor], 51 AD3d 1317, 1318 [2008], lv denied
11 NY3d 710 [2008]). Moreover, substantial evidence supports the Board's determination that, by stating that she had not violated a company rule or policy in her application for benefits, claimant made a willful misrepresentation to obtain benefits (see Matter of Barbera [Commissioner of Labor], 28 AD3d 973, 975 [2006]).
Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur.
ORDERED that the decisions are affirmed, without costs.
Sunday, June 13, 2010
UNEMPLOYMENT INSURANCE - MISCONDUCT
Here are some typical instances of Employer's claiming that a violation of company policy constitutes misconduct:
1. Claimant violated an unwritten policy and did receive a prior warning but was discharged.
2. Claimant violated an unwritten policy and did receive a prior warning, and, after violating a different unwritten policy, was discharged for violating a different unwritten or written policy.
3. Claimant violated an unwritten policy and did not receive a prior warning but was discharged.
4. Claimant violated an unwritten policy and did not receive a prior warning and, after violating a different unwritten policy, was discharged for violating a different unwritten or written policy.
5. Claimant violated a written policy, received a prior warning, and, after violating a different written or wunwritten policy, was discharged for violating a different written or unwritten policy.
4. Claimant violated a written policy, received a prior warning, and, after violating the same written policy, was discharged for violating that written policy.
4. The policy violated was clearly detrimental to the Employer's interests, viz., sexual harrassment, continued lateness, theft of funds, drug use, etc.
5. The policy violated was not clearly detrimental to the Employer's interests.
Most Employers objecting to benefits are going to claim that all of the above constituted misconduct under the theory that any violation of company policy is detrimental to the Employer's interests and thus constitutes misconduct.
1. Claimant violated an unwritten policy and did receive a prior warning but was discharged.
2. Claimant violated an unwritten policy and did receive a prior warning, and, after violating a different unwritten policy, was discharged for violating a different unwritten or written policy.
3. Claimant violated an unwritten policy and did not receive a prior warning but was discharged.
4. Claimant violated an unwritten policy and did not receive a prior warning and, after violating a different unwritten policy, was discharged for violating a different unwritten or written policy.
5. Claimant violated a written policy, received a prior warning, and, after violating a different written or wunwritten policy, was discharged for violating a different written or unwritten policy.
4. Claimant violated a written policy, received a prior warning, and, after violating the same written policy, was discharged for violating that written policy.
4. The policy violated was clearly detrimental to the Employer's interests, viz., sexual harrassment, continued lateness, theft of funds, drug use, etc.
5. The policy violated was not clearly detrimental to the Employer's interests.
Most Employers objecting to benefits are going to claim that all of the above constituted misconduct under the theory that any violation of company policy is detrimental to the Employer's interests and thus constitutes misconduct.
Saturday, June 12, 2010
UNEMPLOYMENT INSURANCE - MISCONDUCT
Is every act of an employee in violation of company policy an act of misconduct, thus disqualifying Claimant from Unemployment Insurance? That is the position of many Employers and is an issue that I am facing in an appeal and several upcoming hearings. I will discuss my research in this blog. Let's begin with the general introduction of the rules from the Appeals Board website:
"Under Section 593.3, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. (See Field Memo 2-99 for further detail)
The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated.
Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:
Mere inefficiency,
Inadequate performance as the result of inability or incapacity,
Inadvertence or ordinary negligence in isolated instances,
Good faith errors in judgement or discretion.
On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness."
"Under Section 593.3, if a claimant lost employment prior to the filing of his claim through misconduct in connection with his employment, he is disqualified from benefits beginning with such loss of employment and ending when he has worked in subsequent employment and earned remuneration at least equal to five times his weekly benefit rate. In addition, any wages earned in employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits. (See Field Memo 2-99 for further detail)
The term "misconduct" is not defined in the statute. However, the Court of Appeals in Matter of James(34 NY 2d 491; A-750-1775) has indicated that "misconduct" is any volitional act or omission which is detrimental to an employer's interests. Subsequent Appeal Board decisions have indicated that "misconduct" may include acts or omissions off the job as well as on the job, if adverse effect on the employer is demonstrated.
Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:
Mere inefficiency,
Inadequate performance as the result of inability or incapacity,
Inadvertence or ordinary negligence in isolated instances,
Good faith errors in judgement or discretion.
On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness."
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