STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


JEREMY L BENTON, Employee

U W EXTENSION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000739MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has worked for more than one year as a computer network support specialist for the employer, a State University Unit which provides on-line courses for the University of Wisconsin System and corporate clients. The employer suspended the employee without pay for five work days from October 28 through November 3, 1999, (weeks 44 and 45 of 1999). The employee filed a claim for unemployment benefits for those weeks.

The issue is whether the employee's suspension of his employment during weeks 44 and 45 of 1999 was a disciplinary action for good cause connected with his employment within the meaning of Wis. Stat. § 108.04(6).

The stated reason for the employee's suspension was for violating work rules prohibiting unauthorized or improper use of University property or equipment. The particular conduct alleged by the suspension letter was the employee's "excessive" use of computer resources to access Internet sites that were not work related during work hours, "including sexually explicit sites." The employee's work unit had a written policy, which stated that those with access to its information technology resources were responsible to use those resources in a manner consistent with the unit's mission. The policy specifically prohibited the use of those resources for such things as soliciting sales for goods or services or soliciting contributions, certain political activities or to represent the interests of any non-university group. The policy also provided that incidental personal use of those resources was permitted in the interest of making the use of such resources a natural part of day-to-day learning and work, but that such resources should not be used "for activities of an extensive nature that are not related to [the work unit's] purposes."

The employee admitted using the employer's computer resources to access Internet sites for personal non-work purposes during working hours, such as while on breaks or during lulls while he was performing software installations or upgrades to other computers. The employee's computer also contained a file with a film trailer from a movie. According to the description of that film from the Internet site itself, the film's rating had been changed from NC-17 to R, and the trailer contained the scene that prompted the rating change.

The employee contends that his suspension was not for good cause connected with the employment because he did not deliberately violate any rule or policy of the employer. The ALJ agreed, providing several reasons for reaching his legal conclusion. In particular, the ALJ found, "No competent evidence established that the film trailer was impermissible under the employer's policy or that the employee knew or should have known that it was impermissible. While the employer's policy was not so vague as to allow access to materials that were pornographic as a matter of law or billed as pornographic, the film trailer was not shown to be in either category." The commission respectfully disagrees with the ALJ's legal conclusion and finds that the employee's viewing of the film trailer constituted a violation of the employer's work policy sufficient to establish a finding of disciplinary suspension with good cause within the meaning of Wis. Stat § 108.04(6).

The employee admitted viewing the film trailer. He testified that it took five minutes to download the film trailer, leading the commission to infer that downloading and viewing the trailer occupied the employer's resources for a considerably long period of time. Furthermore, the commission is satisfied that the employee's viewing of this film trailer, by the employee's own admission, was inconsistent with his work unit's mission and violated the employer's policy prohibiting the use of resources to activities of an extensive nature that are not related to the work unit's purposes. Because downloading and viewing of the film trailer was not related to his work unit's purposes and was of an extensive nature, the employee violated the employer's work policy.

The commission therefore finds that beginning in week 44 of 1999, the employee's employment was suspended as a disciplinary action for good cause connected with that work, within the meaning of Wis. Stat. § 108.04(6).

The commission further finds that the employee was paid benefits amounting to $197.00 for weeks 44 and 45 of 1999, for which he is not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 44 of 1999 and is ineligible to receive benefits until three weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, which ever occurs first. The employee is thereafter eligible, if otherwise qualified. The employee is required to repay the sum of $197.00 to the Unemployment Reserve Fund.

Dated and mailed October 24, 2000
bentoje.urr  135 : 1  MC 676  MC 690

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

This reversal is as a matter of law. The commission decision does not depend upon any credibility resolution different from that of the administrative law judge. However, applying the law to the facts at hand, the commission reaches a different legal conclusion than the administrative law judge. The commission is satisfied that the employee's viewing of the film trailer violated the employer's policy as stated in its suspension letter as well as its policy for appropriate use of the employer's information technology resources.


Note: The employer did not timely petition Hearing #99004410MD regarding its non-appearance. The commission therefore cannot address the employer's arguments regarding this issue. The commission also notes that its review was limited solely to the record created before ALJ Jenkins.

cc:
BARBARA W DUEHOLM
DIRECTOR/HUMAN RESOURCES


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