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

RODNEY A MCCULLOUGH, Employee

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04202302EC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits as of week 33 of 2004 and thereafter, if he is otherwise qualified.

Dated and mailed February 9, 2005
mcculro . usd : 150 : 2   MC 690

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee's extensive personal use of the employer's e-mail system violated its policies and constituted misconduct connected with the employment. While the employer's policy prohibits personal use of the employer's e-mail system, the supervisor acknowledged that workers violated the policy and were discharged only if their personal e-mail use was found to be excessive. The employer's policy does not address what constitutes excessive personal use and the employee had no prior warning to put him on notice that his use of the system was excessive and/or jeopardized his employment. As such, the commission agrees with the administrative law judge, that the employee's personal use of the employer's e-mail system did not evince a wilful and intentional disregard of the employer's interests so as to constitute misconduct connected with the employment. The commission therefore adopts the appeal tribunal decision as its own.

cc: Attorney Thomas A. Siedow



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