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

RHONDA A GAVIN, Employee

NUK USA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No 12002659MD


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 15 years as a quality assurance auditor for the employer, a producer of plastic products for the baby industry. In her position, the employee was a union member and abided by an agreement negotiated between the union and the employer.

Pursuant to Article 25 of the agreement, a "flagrant violation" of the employer's rule did not require progressive discipline prior to discharge. Article 25.2 items "g" and "h" provided that workers were subject to immediate dismissal if they:

- Display behavior that intentionally causes an adverse impact on product quality, productivity or safety.
- Knowingly submit inaccurate or untruthful information for or on any Company record, report or document. Falsify or conceal information, documents or records which have an adverse affect [sic] on the Company.

On April 22, 2009, the employee attended a training session on the employer's Business Equipment Usage policy. The policy provided that use of the employer's equipment and Internet access should be for business purposes only and that use of the employer's equipment would be monitored, with abuse of Internet access considered a violation of the policy.

In 2010, Internet access was removed from the employer's business equipment for all union members. Although the quality assurance workers originally retained their Internet access, it was subsequently removed.

The employer's HR manager, Harrison, conceded that the employee did not receive a hard copy of the Business Equipment Usage policy. While the policy offered at the hearing was a copy dated after the training, the employer did not assert that the policy language changed.

In the beginning of May 2012, an iPad was introduced to the quality assurance department. Prior to the arrival of the iPad, the employee's supervisor, Boyer, conducted iPad work application training using a desktop computer. She instructed her staff that the iPad was to be used for business purposes only. In an attempt to avoid Internet browsing by the quality assurance workers, the workers were not told that they could access the Internet on other than company sites with the iPad.

When the employer reviewed records of the iPad usage at the end of May, the history reflected that multiple non-work related Internet sites had been accessed. In particular, the iPad history reflected multiple Facebook logins and the viewing of multiple Facebook pages. The history indicated that the pages visited belonged to the employee's family members. These pages were accessed on May 24, 25 and 29, 2012, with twelve history notations on the 24th, three on the 25th and twenty-four on the 29th.

On June 4, 2012, the employee was confronted and asked whether she accessed Facebook with the employer's iPad. Boyer testified that the employee stated that she had accessed Facebook by accident because she was curious and that she had received an error message. She indicated that she only tried Facebook one time and admitted showing a few coworkers a recipe contest on the employer's website. When shown the multiple page access, the employee denied knowledge of the additional Internet access.

On June 8, 2012 (week 23), the employee was again questioned about her usage of the employer's iPad. The employee's responses were similar and the employee was discharged for improper use of the iPad and her alleged dishonest responses when questioned by the employer.

Following the discharge, the employee filed a claim for unemployment insurance benefits.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, the issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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.

Like the ALJ, the majority finds that the employee accessed the Facebook sites recorded in the iPad history records. However, the majority does not find that the employee's actions in doing so constituted misconduct. In particular, the employer's policies warned against "abuse" of the Internet but did not define such abuse. The employer did not establish the amount of time involved, when the pages were accessed, or that this conduct affected the employee's work negatively. More importantly, the commission notes that if the employer planned to implement a policy against any personal use of its business equipment and to argue that this violation would be misconduct, it had an obligation to warn the employee and her coworkers that any use, not just "abuse," jeopardized the employment. See Harrison v. Kickhaefer Mfg. Co. LLC, UI Dec. Hearing No. 12601158MW (LIRC August 24, 2012), and cases cited therein. This is especially true where the employer conceded it did not supply the employee with a copy of the policy at the training over two years earlier, the policy language did not change when the employer removed Internet access for its union workers, and the Internet policies were not discussed when the new technology introduced into the quality assurance department.

While the employee's actual personal use of the iPad did not rise to the level of misconduct, the more difficult question is whether employee's responses during the investigation constituted misconduct. The commission has held that intentional dishonesty in an investigation constitutes misconduct. See Fenceroy v. Department of Corrections, UI Dec. Hearing No. 02601115MW (LIRC July 11, 2002), affm'd Fenceroy v. LIRC and Department of Corrections, Case No. 02-CV-7593 (Wis. Cir. Ct. Milwaukee Co., Jan. 9, 2003)(probation and parole agent violated employer's fraternization rule by living with offender under the supervision of the employer and lied about it during the employer's investigation); Krueger v. Voith Paper Fabrics Appleton Inc., UI Dec. Hearing No. 06401483AP (Sept. 15, 2006)(employee left work site before scheduled break, without permission and without clocking out and then fabricated a story about his actions). Unlike these decisions, the employee's responses minimizing her behavior were not such a deliberate disregard of the employer's standards and expectation as to rise to the level of misconduct as set forth in Boynton Cab. Specifically, the context of this questioning cannot be separated from the nature of the violation alleged and the notice the employer had given regarding the magnitude of such a violation. Again, the employer had not put the employee on notice that any Internet access jeopardized the employment or that her answers to the questions were so significant as to jeopardize her employment, without prior discipline. Without this, the employee's failure to fully disclose her Facebook usage was simply poor judgment and not an intentional disregard for the employer's interests. The employer may have made a valid business decision in discharging her; however, it was not misconduct connected with the employment.

The commission therefore finds that in week 23 of 2012, the employee's discharge was not for misconduct connected with his work, 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 October 31, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

NOTE: The ALJ was consulted regarding her demeanor impressions. The ALJ indicated that she did not credit the employee's testimony. She found the employee's general responses to specific questions regarding her Facebook usage to be evasive. The majority reverses the ALJ based upon a differing legal conclusion regarding the nature of the employee's behavior and the lack of proper warning from the employer regarding the significance of her behavior.

 

LAURIE R. MCCALLUM, Commissioner (dissenting):

I respectfully dissent from the majority opinion. The employee's discharge was the direct result of her deliberate disregard of the employer's clear policy against personal use of its technology, and her dishonesty when questioned about it.

The employee intentionally accessed the Internet, and individual Facebook pages, on the employer's business equipment. She had no work purpose for doing so and her purported "testing" was solely for her personal benefit. This was repeated on three separate days and involved visiting a number of pages and viewing a number of items. The employee was necessarily aware that use of the company iPad for personal purposes was strictly prohibited. Her actions were a knowing and intentional violation of the employer's clear policy.

Moreover, the employee was dishonest during the employer's investigation of this conduct. The employee stated to the employer that she had accessed Facebook only once, and that was by accident. This was clearly dishonest. As the ALJ and the majority found, the employee accessed Facebook on three different days, and viewed numerous Facebook pages and items for reasons unrelated to her work.

The commission has held in prior decisions that dishonesty to an employer in the course of its investigation of a worker's conduct constitutes misconduct because mutual trust is such an essential component of the employment relationship. See, e.g., Mischler v. Harbor Senior Concepts LLC, UI Dec. Hearing No. 06401778GB (LIRC Nov. 25, 2006)(employee's dishonesty during investigation of her actions was misconduct); Fenceroy v. Dept. of Corrections, supra.

The employee's evasiveness during the employer's investigation was, as noted by the ALJ in her credibility conference with the commission, mirrored in her hearing testimony. The ALJ indicated in particular that the employee was evasive even as to very simple and clear questions relating to her logging on to her Facebook page, her accessing Facebook on the three separate dates, her viewing of Facebook pages and items personal to her and to her relatives, and her investigative interview with the employer. It is disturbing to me that an employee who has demonstrated such a disregard for the truth, and such a failure to take responsibility for her actions, should be awarded benefits.

In my opinion, the employee's dishonesty during the employer's investigation would be sufficient, standing alone, to establish misconduct. Considered in combination with the employee's knowing violation of the employer's clear and strict technology policy renders the result reached by the ALJ even more sound.

As such, I would affirm the decision of the administrative law judge and conclude that the employee engaged in misconduct.


/s/ Laurie R. McCallum, Commissioner

 

gavinre : 150 : 2


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