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

JUDITH C HOLCOMB, Employee

CATHOLIC FAMILY LIFE INSURANCE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605434MW


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 over five years as a member services representative for the employer, an insurance business. Her last day of work was May 21, 2003 (week 21).

On May 21, 2003, the employer's IT manager notified the employer's vice president and corporate secretary that the employee had sent a questionable electronic mail (email) message to a former worker of the business. In it, she forwarded an email question from a coworker. The employee forwarded the message to highlight the worker's poor grammar. She also included additional criticism and mocking comments about her coworkers, the employer's management and the work environment. The vice president and corporate secretary was upset not only by the criticism but also because a policy number was forwarded with it. Although the policy number was listed, no other identifying client information was sent.

The vice president and corporate secretary asked the IT manager to search the computer records for other similar emails from the employee. He did and informed the vice president and corporate secretary that the employee sent multiple emails that were worse than the one he brought to her. He reviewed approximately 20 email messages sent by the employee in 11 months. A majority of the messages were sent to the same former worker, while some were sent to another former worker of the business and one was sent to a coworker.

While the employer's policies indicate that electronic mail systems should be used for conducting company business, personal use is allowed during non-working times such as breaks, lunch and before or after work. However, workers are prohibited from using the electronic mail system to disseminate confidential proprietary interests of the employer, personnel information or using the electronic mail system in a manner that may be "disruptive, offensive to others, or harmful to morale." The policies further prohibit sending or soliciting sexually oriented messages or images. Typically, the disciplinary policy calls for an oral reminder, written warning and a counseling session with a decision making paid leave prior to discharge.

The employee was never warned that she was violating the employer's policies. When another worker violated the policy by sending multiple emails containing sexual material, the vice president and corporate secretary merely informed him such emails were not allowed.

Regardless of the lack of discipline imposed on the coworker and absence of prior warnings to the employee, the vice president and corporate secretary decided to discharge the employee immediately for her behavior. The vice president did not review the other emails prior to making the discharge decision.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

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

The commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that his or her performance is not satisfactory and give him or her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979). The respondent argues Merkel v. LIRC and Teach & Toys, d/b/a The Learning Shop, Case No. 02CV002912 (Wis. Cir. Ct., Milwaukee County, October 30, 2002); aff'd per curiam Ct. App. District 1, June 17, 2003, supports a finding of misconduct in this case. The commission disagrees. First, in Merkel, the worker had been previously counseled against sharing her disputes about the employer's management decisions with other workers. Nevertheless, in the last incident, she sent, via the employer's email system disparaging comments about the employer's lack of concern for worker safety to approximately 20 employees and managers of the employer. Next, in, Skavland v. Olden Berg Group, Inc., UI Dec. 02608860MW (LIRC April 4, 2003), the commission distinguished the Merkel case using the factors of level of criticism and scope of publication.

Similarly, the commission believes the employee's emails, while critical of her coworkers and the employer's management, were not publicized to the Merkel extent. They were intermittent messages to three individuals, two of whom no longer worked for the employer. While the policy number was included, none of the emails revealed identifying client information. Some did discuss personnel matters but these were not specifically considered in the discharge decision. More importantly, unlike the Merkel case, the employee had never been warned that her behavior jeopardized her job or that her email messages would be treated more seriously than the multiple emails containing sexual material. For these reasons, even though the employer may have made a valid business decision in discharging the employee, the commission finds that this discharge was not for misconduct connected with the employment.

The commission therefore finds that in week 21 of 2003, the employee's discharge was not for misconduct connected with her 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 21 of 2003, if she is otherwise qualified.

Dated and mailed March 18, 2004
holcoju . urr : 150 : 2  MC 610.06 MC 690

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ because of a differing assessment of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision because it reached a different conclusion when applying the law to the facts found by the ALJ.

cc: Attorney Autumn M. Kruse


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uploaded 2004/03/19