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Employee?s termination for off-duty misconduct bars unemployment insurance award

Employee?s termination for off-duty misconduct bars unemployment insurance award
Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961

A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper?s actions were in violation of the Division?s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.

The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.

While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.

The Trooper, however, was subsequently acquitted of the driving under the influence charge.

Following his termination the Trooper applied for unemployment insurance benefits. An Administrative Law Judge [ALJ] ruled that the Trooper?s behavior had not risen to the level of disqualifying misconduct.

The decision indicates that the ALJ?s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ?s decision. The Division of State Police appealed.

The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper?s termination was not a result of disqualifying misconduct.

The court?s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved ? constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:

Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.

The Division had argued that the Trooper's conduct in, among other things, ?getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.? According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."

The court ruled that ?Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.?

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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Full post as published by New York Public Personnel Law on February 23, 2011 (boomark / email).