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

TAMARA G CADOTTE, Employee

PRIME CARE HEALTH PLAN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03608737MW


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 over 12 years as a claims examiner for the employer, a health insurance business. Her last day of work was August 14, 2003 (week 33), when she was discharged.

The employer's electronic mail (e-mail) and Internet policy provides that the employer's e-mail and Internet access should be used primarily for business purposes. It allows limited personal use if such use (1) occurs during nonworking time (i.e. before or after the worker's shift or during break or lunchtime); (2) does not interfere with the worker's job responsibilities and (3) is appropriate in nature. The policy further provides that obscene e-mails are prohibited under the personal use policy and refers to the employer's "Sexual or other harassment" policy, which prohibits sending or viewing "offensive materials or images, such as obscene or derogatory e-mails." Workers are also warned to use good judgment when composing and forwarding e-mail messages and attachments. Violations are subject to discipline up to and including discharge.

In March 2003, the employer sent an e-mail policy reminder to all workers explaining the limited use policy and defining inappropriate content as "offensive, harassing or sexually explicit content (including text, graphics, etc.)."

As a result of a security audit of the employer's e-mail system, the employer discovered that the employee sent and forwarded numerous inappropriate
e-mails and attachments. Included in those were jokes of a sexual nature, sexual innuendo and inappropriate photographs. Based upon this information and the employer's policies, the employee and two other workers, who engaged in similar behavior, were terminated immediately.

Following the discharge, the employee filed for unemployment insurance benefits. Departmental records reflect that the employee received benefits totaling $1,669.00 for the calendar weeks ending August 23 through November 1, 2003 (weeks 34 - 44). $47.00 in benefits was set forth as overpaid in a separate decision.

Wisconsin Stat. § 108.04(5) denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with the 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 & Industrial Comm., 237 Wis. 249 (1941).

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

The materials sent by the employee through the employer's e-mail system were in direct violation of its policies. While the employee argued that she never read the employer's policies, although she believed they existed, she cannot avoid responsibility for violating a rule by intentionally not reading the rule. Chesser v. Ameritech Services, Inc., UI Dec. Hearing No. 03606265MW (LIRC May 4, 2004).

Further, while the employee had never previously been disciplined and the commission has been consistent in holding that before a misconduct finding can be found, the employee has to be aware or have reason to be aware that his or her job is in jeopardy or will be for engaging in the subject conduct, the commission has made exception in cases in which the alleged conduct is sufficiently egregious. See, e.g., Brojanac v. Ackerville Garage Inc., UI Hearing No. 03602624WB (LIRC January 7, 2004);  Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC October 3, 2000);  Marcolini v. Alma Public Schools, UI Hearing No. 7820774EX (LIRC May 29, 1979).

The commission finds that the employee's conduct was sufficiently egregious to support a misconduct finding without prior warning. In particular, she repeatedly violated the policy by sending inappropriate emails and email attachments to friends and coworkers while at work and using the employer's computer system. Such interpretation is also consistent with the commission's treatment of other cases involving misuse of an employer's computer system. In particular, misconduct was found without prior warning where (1) an employee accessed the Internet and downloaded pornographic materials into the employer's computer system, Oechsner v. Mayville Metal Products/Danly Die Set, UI Dec. Hearing No. 00001907 (LIRC August 4, 2000); (2) an employee accessed pornographic Internet sites from a work computer during nonworking hours where the employee did not receive the policies but knew such behavior was wrong, Accola v. Department of Natural Resources, UI Dec. Hearing No. 02201441EC (LIRC February 27, 2003); and (3) an employee used the employer's computer daily to e-mail offensive and pornographic jokes, acknowledging the material as offensive and even though he was not specifically required to read the employer's policies but should have known it was not acceptable to view or e-mail pornography at work. Polgar v. Efunds Corp., UI Dec. Hearing No. 01402092AP (LIRC November 21, 2001).

Since the commission finds that the employee's discharge was for misconduct connected with her employment, she was not eligible for the $1,669.00 (1)   in unemployment benefits that she received for the calendar weeks ending August 23, 2003 (week 34) through November 1, 2003 (week 44). Generally, a worker who receives unemployment insurance benefits in error is required to repay those benefits to the department. However, current law provides that recovery of the overpaid benefits shall be waived if the overpayment occurred as a result of department error and was not caused by the claimant's fault, false statement or misrepresentation.

As such, the next issue is whether the employee must repay the overpaid benefits.

Department error is defined as error relating to computing or paying benefits, resulting from mathematical mistake, misapplication or misinterpretation of the law or mistake of evidentiary fact; or misinformation provided by the department to a claimant, on which the claimant relied.

In this case the overpayment was caused by the reversal of the appeal tribunal decision based on a differing interpretation of the law. It was not caused by department error and repayment cannot be waived.

The commission therefore finds in week 33 of 2003, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5). The commission further finds that the employee was paid benefits in the amount of $1,669.00 (2),   for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment was not due to any error by the department, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2003, and until seven weeks have elapsed since the end of the week of the discharge and the employee has earned wages in covered employment performed after the week of the discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,669.00, $47.00 of which has been already set forth as overpaid by a separate matter, to the Unemployment Reserve Fund.

Dated and mailed July 7, 2004
cadotta . urr : 150 : 2    MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission consulted with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge indicated that he found the employee credible in both her admissions of sending the e-mails and their attachments as well as her claim that other workers engaged in similar behavior. The commission's reversal is not due to a differing credibility determination. Instead, the commission finds that even if co-workers engaged in similar behavior, the employer never condoned such behavior and the employee's repeated intentional violations were so substantial as to constitute misconduct even without warning.


FURTHER NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other 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 over payment.

cc:
United Healthcare Services, Inc.
Continental Consultants
UC Express


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Footnotes:

(1)( Back ) As mentioned previously, $47.00 of this amount was set forth as overpaid by another decision.

(2)( Back ) Id. 3

 


uploaded 2004/07/12