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

DANA A FICHTNER, Employee

COUNTY OF ROCK, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03007158JV


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 for the employer, a county government, for three years as a correctional officer. His last day of work was August 27, 2003 (week 35).

During the employee's employment, the employer permitted some personal Internet usage during work time. However, the employer has an Information Technology Resources Policy which prohibits the transmission of obscene or lewd material.

The employee was interested in motorcycles and would frequently access motorcycle-related web sites at the work place. Some of these web sites contained pictures of topless women or women wearing wet t-shirts. The employee did not visit the sites in order to look at the photographs in question, but was primarily interested in the motorcycles.

The employee also played computer games while at work. Some of the game sites the employee visited generated "pop-up" ads for pornographic web sites. The employee would close out the pop-up ads without accessing them. On one occasion the employee was unable to close out the pop-up ads, and asked the employer's technology support specialist to assist him in getting rid of them. Shortly before, or as a result of this request, the employer began an investigation of the employee's personal computer use. The employer went through the employee's hard drive and created a "user profile," which showed that the employee had visited numerous web sites containing pornographic images, most of which appeared to be consistent with pop-up ads. After considering the types of web sites the employee had viewed at work time, the employer decided to terminate his employment.

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

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employer contended that the employee was discharged for searching for and downloading pornography at the workplace. However, the images of topless women or women in wet t-shirts which the employee viewed on the motorcycle web sites were not pornographic in nature, as even the employer's sheriff acknowledged at the hearing. Moreover, the employee did not go to those web sites for the purposes of viewing such images, but because he was a "big motorcycle buff." Although the employee did go to web sites which generated pop-up ads containing pornographic material, the employee did not search for these ads, which popped up on the screen without any action on his part while he was playing computer games. The employee would click the ads shut, and did not access any of the adult web sites in question.

The employee exercised poor judgment in continuing to visit web sites which contained questionable content or where he knew he was likely to encounter advertisements for pornographic material. However, the evidence does not indicate that he deliberately searched for or downloaded pornography, the conduct for which he was discharged. Moreover, the employer tolerated some personal Internet use during work time, and the employee was not on notice that his actions could jeopardize his employment.

The commission, therefore, finds that in week 35 of 2003, the employee was discharged and not for misconduct connected with his employment, 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, if otherwise qualified.

Dated and Mailed July 16, 2004
fichtda . urr : 164 : 1   MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

 

NOTE: The commission conferred with the administrative law judge about his impressions of witness credibility and demeanor. The administrative law judge indicated that he did not credit the employee's testimony that he did not seek out the web sites in question because of their prurient content. However, the commission does not find the employee's testimony on this point to be incredible. If the employee was actively seeking pornography, he could have searched pornographic web sites, rather than relying on random "pop-up" ads from a site devoted to computer games.

 

 

ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority opinion. The employer conducted a thorough investigation and issued discipline according to the severity of the conduct. The employee continually returned to web sites containing explicit pop- up ads, and his exposure to this material was more than accidental. The employee also continually visited motorcycle web sites which contained inappropriate content. The sheriff's denial that these pictures were pornographic was qualified. The timing of the employee's request for assistance in deleting the pop-ups is suspect, and suggests that he knew his conduct was prohibited and was concerned about being caught. For these reasons, I believe there is sufficient evidence to support the administrative law judge's decision.


______________________________
/s/ Robert Glaser, Commissioner

 

cc:
Jeffrey S. Teelefson
Thomas Larsen


Appealed to Circuit Court.

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uploaded 2004/07/19