Opinion
518609
12-11-2014
Cooper Sapir & Cohen, P.C., Melville (David M. Cohen of counsel), for appellant. Michelle I. Rosien, Philmont, for Laura Q. Sullivan, respondent.
Cooper Sapir & Cohen, P.C., Melville (David M. Cohen of counsel), for appellant.
Michelle I. Rosien, Philmont, for Laura Q. Sullivan, respondent.
Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and CLARK, JJ.
Opinion Appeal from a decision of the Unemployment Insurance Appeal Board, filed January 3, 2014, which ruled that claimant was entitled to receive unemployment insurance benefits.
Claimant worked for almost seven years as a senior speech language pathologist for the employer until she was terminated in May 2013. The termination resulted from her running afoul of the employer's written policy prohibiting employees from posting on social media “during work hours, unless for specific and approved business purposes.” The Unemployment Insurance Appeal Board thereafter determined that claimant was entitled to receive unemployment insurance benefits because, in its view, she had not lost her job due to disqualifying misconduct. The employer now appeals.
The question of whether a claimant engaged in actions sufficient to disqualify him or her from receiving unemployment insurance benefits is a factual one for the Board to resolve, “and its determination will not be disturbed if supported by substantial evidence” (Matter of Jaiyesimi [ISS Action Inc.-Commissioner of Labor], 114 A.D.3d 983, 983, 979 N.Y.S.2d 720 [2014] ; see Matter of Morris [Lenox Hill Neighborhood House Inc.-Commissioner of Labor], 110 A.D.3d 1333, 1334, 973 N.Y.S.2d 445 [2013] ). Not every discharge for cause rises to the level of misconduct, which is defined as “a willful and wanton disregard of the employer's interest” (Matter
of Rahaman [New York Convention Ctr. Operating Corp.-Commissioner of Labor], 101 A.D.3d 1206, 1207, 955 N.Y.S.2d 287 [2012] [internal quotation marks and citations omitted] ). Claimant did not dispute that she was aware of the employer's policy on social media usage and that she nevertheless posted an item during work hours. The record also reflects, however, that it was an isolated incident and that claimant had a clean disciplinary record prior to her termination. Substantial evidence thus supports the determination of the Board that claimant's behavior, while reflective of a momentary lapse in judgment, did not rise to the level of disqualifying misconduct (see Matter of Nangreave [United Health Servs. Hosps., Inc.-Commissioner of Labor], 107 A.D.3d 1211, 1212, 967 N.Y.S.2d 480 [2013] ; Matter of McKoy [LB&B Assoc., Inc.-Commissioner of Labor], 27 A.D.3d 922, 923, 810 N.Y.S.2d 585 [2006] ).
ORDERED that the decision is affirmed, without costs.