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

JOEL L ACCOLA, Employee

DEPARTMENT OF NATURAL RESOURCES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02201441EC


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked as a limited term employee over 11 years, most recently as a fisheries technician for the Department of Natural Resources. His last day of work was April 13, 2002 (week 15).

The employee accessed pornographic internet sites from his work computer. He testified he did this during non-work hours. The employee and his employer agree that as an LTE he was never given the written work rules and computer policies which forbid this practice. However, the employee testified that he knew his employer would disapprove of this conduct and he took pains to do this outside of work hours in most cases.

The issue for the commission to decide is whether the employee committed misconduct by looking at pornography on his work computer.

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 commission concludes from the employee's testimony that he was aware that his actions in this regard constituted a disregard of the conduct the employer had a right to expect from him. He testified that he knew it was wrong even if he had not actually received a copy of the employer's policy stating it was a rule violation. Consequently, the commission concludes that the employee was guilty of intentional misconduct.

The commission therefore finds that in week 15 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 $575 for weeks 16 through 18 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 15 of 2002, and until seven weeks have elapsed 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 $575 to the Unemployment Reserve Fund. The initial Benefit Computation (form UCB-700), issued on April 15, 2002 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

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.

Dated and mailed February 27, 2003
accoljo . urr : 178 : 1   MC 687  MC 690

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ prior to deciding to reverse. The ALJ indicated that he believed the employee may have been aware that his conduct was wrong but that he was unaware of the work rule and he did not consider his conduct was a dischargeable offense. The commission considered the ALJ's impressions but believes that the employee was aware that his conduct was a significant breach in the conduct he owed the employer and as such amounts to misconduct.

cc: Attorney Richard W. Henneger


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