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

GREGORY E HOPPE, Employee

ADECCO FIELD MANAGEMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01600754MW


On January 10, 2001, the Department of Workforce Development (department) issued its determination, finding that the employee was discharged but not for misconduct. The employer timely appealed. A hearing was held on March 28, 2001, before an administrative law judge (ALJ). On April 4, 2001, the ALJ issued his appeal tribunal decision (ATD) affirming the department's initial decision and finding that the employee's discharge in week 51 of 2001, was not for misconduct. The employer timely petitioned the Labor and Industry Review Commission (commission).

On June 1, 2001, the commission issued a remand order, ordering that the employee's supervisor, Ms. Penelope Williams, appear as well as the employee and that the employee produce specific physical evidence in his possession. A remand hearing was scheduled before the same ALJ who conducted the initial hearing. The remand hearing was held on August 1, 2001. The department subpoenaed both the employee and Ms. Williams, but only Ms. Williams appeared at the remand hearing.

The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted before the ALJ at the initial hearing as well as the remand hearing, and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately one month as an administrative assistant for the employer, an operator of a staffing business. The employee's last day of work was December 12, 2000 (week 51). The employee was discharged on December 13, 2000 (week 51) for violating the employer's policy prohibiting the personal use of electronic communications equipment.

On December 13, 2000, the employer received a call from the employee's supervisor who is employed with a public school system. The client complained that the employee had accessed and "bookmarked" an erotic website. The client requested that the employer remove the employee from the assignment. The employer discharged the employee for bookmarking an allegedly erotic website and for using e-mail on a personal basis.

At the initial hearing, the employee's supervisor did not appear at the hearing. Rather, the employee's onsite supervisor for the staffing agency testified on behalf of the employer. This witness could not offer competent firsthand testimony regarding the alleged erotic website and the employee's alleged personal use of the computer.

At the remand hearing, Ms. Penelope Williams, the employee's supervisor, appeared. Ms. Williams testified that she objected to several Internet sites the employee accessed while at work. One in particular is a site known as "Blonde Russian Woman". The website lists resumes and pictures of Eastern European women who wish to date and potentially marry interested men. The employee accessed this site as a part of a homework assignment for a course he was taking on women's studies at a local university. The employee explained that he accidentally downloaded the Internet site on to his supervisor's computer when he loaded the computer with one of his own discs to complete a work assignment for Ms. Williams. According to the employee, technical support informed him that the computer had "assumed he had accessed the Internet" and that is how the website appeared on Ms. Williams' computer.

In response to the employee's theory, Ms. Williams testified that it is not possible to download or access an Internet site simply by putting a disc into the computer. Ms. Williams explained that this is true in part because a person has to enter a clearance code in order to access the Internet. Furthermore, the client's computer is on a local area network (LAN). Ms. Williams also testified that there were numerous occasions that the employee used her computer for personal use while on company time. Since the employee did not appear at the remand hearing he failed to offer any additional testimony to refute Ms. Williams' testimony.

The commission finds that the employee accessed a non-work related Internet site for non-work related reasons while on company time. Although the internet site was not pornographic in nature, it is clearly an inappropriate site to have accessed for personal use while on company time, especially given the location of the employer's client's premises, a middle school. Ms. Williams' computer was in the library and middle schoolers often walked by during work hours. The computer screen faced the door and anyone walking in the door or by Ms. Williams' window could see the computer screen.

The commission is therefore satisfied that there is sufficient evidence in the record to support a conclusion that the employee violated the employer's work policy prohibiting the use of its clients' computers for personal use. The employee was conducting research and preparing a homework assignment for a course outside the scope of his employment with the employer. Furthermore, the employee did not have permission from Ms. Williams to use her computer for personal use or to access the Internet for personal use. The employee's actions therefore constituted an intentional disregard of the employer's interests and of the standard of conduct the employer had a right to expect of the employee.

The commission therefore finds that in week 51 of 2000, the employee was discharged for misconduct within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits, amounting to a total of $3,603.00 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 final issue to be decided is whether recovery of overpaid benefits must be waived.

Wis. Stat. § 108.22(8)(c) provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e) (a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e) (a) and (b). Rather the commission has reached a different legal conclusion when applying the law to the facts at hand.

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 departmental 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 51 of 2000, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $3,603.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed September 26, 2001 
hoppegr . urr : 135 : 1   MC 690

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

 

MEMORANDUM OPINION

In view of Ms. Williams testimony, the commission reverses the appeal tribunal decision as a matter of law. The commission is satisfied that Ms. Williams testimony competently and persuasively rebuts the employee's testimony denying the personal use of the employer's computer. The commission notes that the employee failed to comply with the subpoena served by the Milwaukee County Sheriff's Department. Since the remand hearing, the employee has informed the commission that he incorrectly wrote down the time as "1:00 instead of 10:15" and that it was an honest mistake on his part. The commission finds it difficult to believe that an individual could transpose "10:15 a.m. and 1:00 p.m." Rather the commission believes that the employee failed to comply with the subpoena ordering him to appear and produce physical evidence. Therefore, the materials the employee submitted in lieu of this appearance will not be considered.

Base upon the evidence adduced at the remand hearing, the commission concludes that the employee accessed an inappropriate non-work related internet site for personal use and without permission from the employer's client's supervisor, while at work. The employee violated the employer's work policy regarding the prohibition of personal use of computers and as such his discharge was for misconduct connected with his employment.

cc: Adecco Field Management - Milwaukee, Wisconsin


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2001/10/02