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The Uncertainty in Characterizing Misconduct for Unemployment Insurance Benefits

Yarelyn Mena and Edgar M. Rivera, Esq.

For a claimant to qualify for unemployment insurance benefits, the claimant, among other things, must have lost their job through no fault of their own. This generally means if the claimant was terminated, it must not have been for misconduct. Usually, whether the reason for termination rises to misconduct is simple: stealing, harassment, or fighting is misconduct while forgetfulness, occasional lateness, or being unable to do the job is not. The following two cases are examples of uncertainty; uncertainty in whether the behavior amounts to misconduct and uncertainty as to what actually happened.

In the first case, claimant Shawn Roy appealed his disqualification from receiving unemployment insurance benefits on the grounds that there was no misconduct. The Appellate Division found substantial evidence that supported the Unemployment Insurance Board’s determination that Mr. Roy was discharged as a food service worker due to disqualifying conduct, specifically, he created “violent and sexually explicit videos using LEGO characters, including characters depicting the executive director of the nursing home, claimant’s department head and two female coworkers, and posted the videos online.” The Board was convinced that Mr. Roy was obligated “even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him… ” As such, the Board decided that the videos constituted misconduct and, as a result, he was disqualified for collecting unemployment insurance benefits. This case is a lesson in that at least in some circumstances, legal conduct outside of work can constitute misconduct.

In the second case, claimant Coretha D. Gallman was awarded her unemployment insurance benefits following her employer’s appeal of the Board’s decision. Ms. Gallman was a home health aide for an assisted living facility and was terminated for sleeping on duty during her night shift; she had received a final warning advising her that such conduct could lead to her discharge. Ms. Gallman testified that she had not been sleeping. The employer provided testimony from two employees who were unsure of the day in question where Ms. Gallman was caught sleeping, and testified that Ms. Gallman had completed all of her duties that night. Furthermore, one of the employer’s witnesses admitted that no one attempted to wake Ms. Gallman up despite a purported concern for the residents at the facility. The Board decided that the conflicting testimony was not credible and central to whether there was misconduct. Without the testimony of the employer’s witnesses, the claimant’s testimony took precedence. As such, the Board found that Ms. Gallman did not engage in any misconduct that led to her termination and was awarded her unemployment insurance benefits. This case illustrates the methods used to determine whether misconduct took place, and the role evidence plays in that process.

It is important for individuals applying for unemployment benefits to know the reason for their termination and ensure that it was not for misconduct. It is also important to note that the above cases are not about whether the termination was legitimate, just whether the employee was entitled to unemployment insurance.

If you have any questions or concerns about your termination and qualification to receive unemployment insurance benefits, please contact The Harman Firm, LLP.

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