JOHN H ZEGERS, Employee

G & K SERVICES CO OF WI, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2005, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed March 8, 2006
zegerjo . usd : 135 : 8  MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

In his petition for commission review, the employee contends that in the seven years he worked for the employer there was no formal written policy on the internet use. However, Exhibit 2 submitted at the hearing supports the conclusion that the employer had a written policy regarding internet use contained in its employee handbook. Exhibit 3 is also evidence that the employee acknowledged receipt of the employer's employee handbook. The employer's handbook provides a specific reference to internet use, encouraging the use of the internet for business purposes, including research, professional development and locating information relevant to the employer's customers. The employer's internet use policy however prohibits accessing any material which is "defamatory, derogatory or discriminatory to any individual or group" and downloading programs, graphics or pictures of any kind as they may carry computer viruses. Downloading from the internet is limited to restricted files such as federal regulations, statutes and company financial information.

The employee argues that the employer's policies and procedures called for a three-step process of disciplinary action listed in its handbook and that he should have received a warning for his conduct before being discharged. Generally, the commission finds that for misconduct purposes an employee must be warned of the conduct in question before misconduct is found, unless the alleged conduct is sufficiently egregious. Brojanac v. Ackerville Garage, Inc., UI Hearing No. 03602624WB (LIRC January 7, 2004). By his own admission, the employee accessed inappropriate websites for at least 45 minutes during the time in question. The commission is satisfied that the employee's conduct in question was sufficiently egregious to support a finding of misconduct without prior warning. Under these circumstances, the appeal tribunal decision is affirmed.

ROBERT GLASER, COMMISSIONER (dissenting):

While I do not condone the employee's action one must look at the circumstances. The employee, a mechanic, received an email and clicked on an attachment which took him to inappropriate sites. The employee admitted to going to those sites from approximately 45 minutes but said it was during break and lunch times. The employee had a good record and admitted a mistake. The employer testified that it had been lax in its policy on internet usage as such I would find that the employee should have received a warning before being discharged and as such a finding of misconduct is not warranted.

/s/ Robert Glaser, Commissioner

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uploaded 2006/03/13