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

MICHELE P HOLLENBERGER, Employee

WISCONSIN PHYSICIANS SERVICE INSURANCE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002829MD


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 almost five years as a payment adjustor for the employer, a health insurance administrator. She was discharged by the employer on June 13, 2006 (week 24).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

In January of 2006, the employee received a two-day disciplinary suspension for using the employer's email system to engage in 263 non-work-related email exchanges during work hours over a period of three days, and to forward several pornographic emails to coworkers. In the written notice of suspension, the employer advised the employee in part that "...continued use of email (including the internet) for personal, non-work related business without authorization" would result in further disciplinary action including termination of employment.

The employer's Internet Use policy, which the employee received on June 1, 2006, states that "[a]ll personal use of the Internet is prohibited." The employer's work rule #8 states in relevant part that, "Employees shall not conduct personal business, including use of...electronic mail."

The employee admits that, on June 9, 2006, she used the employer's Internet account to access her page, and the pages of other individuals, on the myspace.com web site, in order to download and listen to music during work hours, and, during non-work hours, to locate and initiate contact with a friend she had not seen in five years.

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 employee'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 commission has consistently held that the employer has to show that the employee engaged in some other culpable act, after a written warning or other disciplinary action has been imposed, in order to prove that the employee was discharged for misconduct. Bebo v. Schindler Elevator Corp., UI Hearing No. 02609535MW (LIRC April 11, 2003); Rash v. Maynard Steel Casing Co., UI Hearing No. 00606695MW (LIRC Dec. 5, 2000).

The employee argues that, since her June 2006 actions primarily involved downloading music, she had not engaged in a further intentional violation of the employer's policies after her suspension, since workers were permitted to listen to music at their desks during work hours. Given, however, that both the notice of suspension and the employer's Internet policy, without exception, prohibit the use of the employer's Internet account for personal purposes, this argument is unpersuasive.

Moreover, the employee's actions in June of 2006 were not limited to the downloading of music from the Internet, but also to using the employer's Internet account to attempt to locate and contact a friend. Even though the employee appears to argue that she was not aware that using the employer's Internet account in this manner outside working hours was prohibited, given the clear and unambiguous prohibition stated in the notice of suspension and the employer's Internet policy, this argument is disingenuous and unpersuasive.

The employee's June 2006 actions clearly constituted 'further culpable conduct," and, considered in conjunction with her egregious violations of the employer's policies in January of 2006, support a conclusion of misconduct.

The file in this matter does not reveal that the employer failed to provide correct and complete information on a timely basis to the department in regard to this matter, or that the employer was otherwise at fault for the erroneous payment of benefits to the employee.

The commission therefore concludes that the employee was discharged in week 24 of 2006 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 $4,262, $4,040 of which is attributable to this decision, 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 employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because, although the overpayment did not result from the fault of the employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2006, 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. The employee is required to repay the sum of $4,262, $4,040 of which is attributable to this decision, to the Unemployment Reserve Fund.

Dated and mailed November 30, 2006
hollemi . urr : 115 : 2  MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.



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