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

SCOTT W ROBBINS, Employee

HERRSCHNERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03002698WR


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 approximately two years as a customer service representative for the employer, a mail order company. The employee's last day of work was March 18, 2003 (week 12) when the employer discharged the employee.

In October 2002, the employer discovered a virus on the employee's work computer and warned him not to download items to his work computer. Thereafter the employer issued a written warning notifying all of its workers that computers are for business use only and under no circumstances are employees to download items on to their work computers; doing so could result in termination. Shortly before the employee's last day of work, a co-worker reported to a supervisor that the employee was viewing non-work websites and making personal telephone calls from his desk. When the employer confronted the employee, he admitted that he had viewed non-work websites from his work computer but had not downloaded anything since the warning issued in October of 2002. The employee also admitted that for several months he had used his work telephone to make long distance phone calls to his sick grandfather in Marion, Indiana.

The employer discharged the employee for violating the employer's computer policy and making long distance phone calls without permission or notice to the employer.

The issue for review therefore is whether the employee's conduct constitutes misconduct within the meaning of Wis. Stat. § 108.04(5). 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."

Exhibit 2 the employer's written warning specifically prohibits employees from downloading items to their work computers. Thus, while the employee admitted viewing a non-work website to get sports scores he did not directly violate the employer's prohibition of downloading items to its computers. Furthermore, the cited prohibition was vague in its direction and content leading the employee to believe that viewing non-work related websites was acceptable as long as the websites were not downloaded.

The employee admitted making the long distance phones calls without permission or notice to the employer. When the employer discovered these phone calls on its long distance bills, the employer informed the employee that he should have come to management to explain the extenuating circumstances surrounding the phone calls. Given these extenuating circumstances, the commission is unwilling to conclude that the employee's failure amounts to an intentional disregard of the employer's interests.

Therefore, the employer's complaints, taken either singly or collectively, present a picture of a less-than-model employee, an employee whose performance was not at the level acceptable to the employer. However, there is no evidence that the employee's actions were taken in any wilful or substantial disregard of the employer's interests or that any negligence was so gross as to demonstrate equal culpability. Thus, under the standard set forth in Boynton Cab, supra, it cannot be held that the employee's discharge was for misconduct connected with the employee's employment.

The commission therefore finds that in week 12 of 2003, the employee was discharged, but that the discharge was not for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 12 of 2003, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed November 25, 2003
robbisc . urr . 135 : 1  MC 690

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

Because the commission's reversal is not based on any differing credibility determination, the commission did not consult with the administrative law judge. The commission's reversal is based essentially on the same set of facts as found by the administrative law judge.


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uploaded 2003/12/03