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

DAVID A POLGAR, Employee

EFUNDS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01402092AP


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 worked for the employer, an electronic fund transfer business, for approximately five years as a software support analyst. His last day of work was June 15, 2001 (week 24).

On or about May 31, 2001, a co-worker walked past the employee's cubicle and observed pornographic images displayed on his computer screen. The co-worker reported this to the employer. The employer conducted an investigation and discovered that the employee frequently received and sent e-mail with pornographic content to co-workers and friends. He was discharged for violating the employer's electronic mail policy.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

". . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employe, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employe's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' within the meaning of the statute."

The employee admitted that he e-mailed the material in question from the employer's computer about once or twice a day, but attempted to characterize the e-mails as dirty jokes which were not sexually explicit. However, many of the examples presented at the hearing went well beyond off-color jokes and were plainly pornographic. Indeed, the employee acknowledged that the documents could be offensive to others, and made efforts to conceal them from general view. The employee also stated that he was unaware of the employer's policy prohibiting his conduct. He had been told by the employer that its policies were available to him on a program called "e-zoom," but was never specifically required to read and familiarize himself with them. While the employer certainly could have done a better job of disseminating its policies to its workers, the commission believes the employee should nonetheless have been aware that it was not acceptable to view pornography at the workplace or e-mail pornography to others from work, regardless of whether the employer had a policy specifically prohibiting this.

Overall, the commission believes that the employee understood the material in question was offensive and inappropriate, and it concludes that his actions in viewing that material at the workplace and transmitting it to others on a daily basis from the workplace evinced a wilful and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect of him.

The commission, therefore, finds that in week 24 of 2001, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in weeks 24 through 31 and 33 through 45 of 2001 in the total amount of $6,289, for which he was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he 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 24 of 2001 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. He is required to repay the sum of $6289 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on June 10, 2001, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed November 21, 2001
polgada . urr : 164 : 1 MC 687  MC 690

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission conferred with the administrative law judge about witness credibility. The administrative law judge credited the employee's testimony that he believed it was okay to send the documents as long as they were sent to people who wanted to receive them and as long as he was discreet. The administrative law judge also credited the employee's testimony that he was unaware of the employer's policy prohibiting him from doing so. However, the commission finds the employee's actions to be inherently objectionable and it believes that, even in the absence of a specific policy, the employee should have been aware that they would not be considered acceptable by the employer.


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uploaded 2001/11/26