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

MICHAEL J MEYER, Employee

C & D TECHNOLOGIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02603079MW


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 about 14 months as a systems analyst for the employer, a manufacturer. His last day of work was March 11, 2002 (week 11), when he was discharged for improper use of the employer's electronic communications system (ECS).

The employer's ECS policy, Exhibit 2, permits minimum personal use of the employer's ECS. Exhibit 2, page 6, D.  Personal business using the employer's ECS is considered inappropriate. Exhibit 2, page 5, C.2.D.  The employee received that policy. The employer also issued an e-mail on January 23, 2002, reminding employees that the use of company systems to send and receive inappropriate communications and visit inappropriate Internet sites was a violation of its policy. Exhibit 3.

As a systems analyst, the employee was considered a "gatekeeper" of the employer's system. The employer trusted the employee to monitor its system for violations committed by other workers. When tracking system usage, the employer discovered that the employee had used its resources to send personal photos, files and e-mails over the company network to personal websites, sent an inordinate number of e-mails, and was using the employer's server to store personal items.

The employer met with the employee on March 6, 2002, regarding its findings. The employee verified that the websites were his. The employer presented documentation to the employee that showed he was transmitting files from his computer to those websites. The employer also found discs and zip drives containing pictures belonging to the employee of a personal nature, including family pictures and picture files used to develop websites. When confronted the employee recognized that the items were his. The employee explained that the e-mails were coming from mailing lists and that the Outlook client was set-up to access his Pop3 account every four minutes to check his e-mail.

The employer met with the employee again on March 11, 2002. The employer asked the employee if he had any comments and he indicated he did not. The employer read the discharge letter to the employee which stated that he had repeatedly violated the employer's ECS policy by using its system to conduct personal business and by the storage of a multitude of non-company related documents and information. The employee had no comment and was discharged.

The issue to be decided is whether the employee's discharge was for misconduct connected with his employment. In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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' with in the meaning of the statute."

The employee maintained that his laptop, on which he conducts personal and work-related activity, crashed on two occasions and as a result he backed up his system by putting it on the employer's server. The employee maintained that all the e-mails were work related. The employee explained that the e-mails resulted because he had his Outlook client set to check for mail every four minutes.

The commission does not find the employee's explanations to be credible. The employer testified that the files and e-mails were sent to the employee's personal websites. The employee acknowledged when confronted by the employer that the websites were his. The employer further found personal pictures and files used to develop websites on discs. The employer's controller credibly testified that the employee confirmed that the discs were his. The employee did not mention at either the March 6 or March 11 meeting that the reason there were such a large number of personal items stored on the employer's system was because his laptop had crashed twice. The employee maintained that he did not mention it at the March 6 meeting because the focus was on the e-mails, and he did not mention it at the March 11 meeting because it was clear the employer had already made its decision to discharge him. However, it was clear that the employer was questioning the presence of personal items on its server at both meetings and the employee had the opportunity at both meetings to explain the presence of personal items on the employer's system.

The commission therefore finds that in week 11 of 2002, the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,229.00 for weeks 11 through 23 of 2002, and week 36 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2002, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,229.00, of which $324.00 is included in another decision, 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account. The initial benefit computation (UCB-700) issued on September 9, 2002, 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 September 19, 2002
meyermi . urr : 132 :  MC 690

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he found the employee's testimony to be persuasive. The ALJ believed the focus of the March 6 meeting was the e-mails and that the employee was not given an opportunity to respond at the discharge meeting. For reasons set forth in its decision, the commission disagrees with the ALJ's credibility assessment.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.

cc: 
Attorney Jason A. Kunschke
Sherry Kopca


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uploaded 2002/09/30