JOHNY L SIMMONS, Employee
WM K WALTHERS INC., 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 eligible for benefits as of week 16 of 2012, if otherwise qualified.
Dated and Mailed November 21, 2012
BY THE COMMISSION:
Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
On June 27, 2012, the ALJ issued two appeal tribunal decisions involving the employee and employer. Hearing number, 12604654MW, dealt with the issue of whether the employee had due notice of work actually available that he was unavailable or unable to perform. The decision for this hearing number, 12604656MW, dealt with the employee's eligibility for benefits given the nature of separation in the calendar week ending April 21, 2012 (week 16).
On June 29, 2012, the employer submitted an electronic petition for review. The petition referenced hearing number 12604654MW but made arguments for reversal of the ALJ's decision regarding the discharge, hearing number 12604656MW. The commission treated the petition as a timely petition for review of both decisions. A commission decision for the companion case is being issued simultaneously.
As it relates to the discharge issue, the record reflects that the employee worked six years as a "show room attendant" for the employer, a distributing and manufacturing company. On Monday, April 9, 2012, the employee attempted to forward an email(1) he received at work from a customer to his brother using the employer's computer and email system. Instead of sending the email to his brother "Mark," the employee forwarded it to all email addresses on the employer's "Master List" at 4:19 p.m. After realizing what happened, at 4:53 p.m., the employee sent an apology to the master list, indicating that he never intended to send it to the master list and "was truly sorry if this offended anyone." On Tuesday, April 10, 2012 (week 15), the employee was suspended pending review by the HR manager. The employee was discharged for this event and he filed a claim for unemployment insurance benefits.
Several months prior to the discharge, the employee signed a copy of the employer's 2011 policies on November 18, 2011. The policy, Exhibit 3, provided that a worker may be terminated for a number of items including misuse of property or violation of company rules. Any serious offense or series of minor offenses might be reason for termination. The employer also had policies against personal use of the employer's telephones, electronic equipment, digital documents and personal computers. Further the policy explained that the
display or transmission of sexually explicit images or messages, . . . or anything that may be construed as harassment of others based on their race, national origin, sex, sexual orientation, age, disability, religion or political beliefs is never permissible.
The employee had no prior warnings regarding use of the employer's computer equipment. The employee received a warning on November 9, 2011, for smoking in an unauthorized area and for taking excessive breaks. The warning also directed the employee not to take personal calls during work time.
The employer contended that the employee's discharge was for misconduct connected with the employment. In particular, the employer argued that, while the employee may not have intended to forward the email to the master list recipients, he did admit to knowingly using the employer's computer and email for personal use, namely intending to send the email to his brother. Additionally, the employer cited to the content of the email in arguing for a misconduct finding.
Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).
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. Boynton at 260.
In addition, the commission has consistently held that except for the most serious offenses, the employer has an obligation to warn a worker that her performance is not satisfactory and give her an opportunity to improve before a finding of misconduct can be made. Marcolini v. Alma Public School, UI Dec. Hearing No. 7820774EX (LIRC May 29, 1979).
In cases, involving personal use of the employer's email and computer system, the commission has found:
Misconduct where:
• the employee viewed offensive and pornographic material on a computer at the workplace and transmitted it to others on a daily basis from the workplace via e-mail; the commission found that the employee should have been aware it was unacceptable to view pornography at workplace or e-mail pornography to others from work, regardless of whether employee read the employer's policy specifically prohibiting this. See, Polgar v. Efunds Corp., UI Dec. Hearing No. 01402092AP (LIRC Nov. 21, 2011).
• the employer's policy prohibited all personal use of the internet and e-mail, and, after previous discipline and warning for excessive personal e-mailing, the employee downloaded music at work and used e-mail to locate an old friend. See, Hollenberger v. Wisconsin Physicians Service Insurance Corp., UI Dec. Hearing No. 06002829MD (LIRC Nov. 30, 2006).
• the employee, in direct violation of employer's policies, sent and forwarded numerous inappropriate e-mails including sexual jokes and innuendo and inappropriate photographs. The commission found this sufficiently egregious to support a misconduct finding without prior warning. See, Cadotte v. Prime Care Health Plan, UI Dec. Hearing No. 03608737MW (LIRC July 7, 2004).
• the employee used the employer's computer system to send personal photos, files and e-mails over the company network to personal websites, he sent an inordinate number of e-mails, and was using the employer's server to store personal items, in violation of employer's electronic communications system policy. See, Meyer v. C & D Technologies, UI Dec. Hearing No. 02603079MW (LIRC Sept. 19, 2002).
• the employee, an assistant manager, sent an e-mail to other managers in which she disagreed with her supervisor's decision, calling it "retarded" and where the employee had been warned about sharing her challenges of management decisions with other employees. See, Merkel v. The Learning Shop, UI Dec. Hearing No. 01609430MW (LIRC March 13, 2002), aff'd Merkel v. LIRC and Teach 'n' Toys, d/b/a The Learning Shop, Case No. 02-CV-002912 (Wis. Cir. Ct. Milwaukee Co., Oct. 30, 2002), aff'd per curiam unpublished decision, Ct. App. District 1, June 17, 2003.
• the employee accessed a non-work related internet site for non-work related reasons while on company time (specifically, resumes and pictures of Eastern European women looking for dates/husbands); while this was not pornographic in nature, it was clearly an inappropriate site to visit on a computer in a middle school. See, Hoppe v. Adecco Field Management Inc., UI Dec. Hearing No. 01600754MW (LIRC Sept. 26, 2001)
No misconduct where:
• the employee used the employer's iPad for personal reasons; although the employer's policies warned against "abuse" of the internet they 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; and the commission noted 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, Gavin v. NUK USA LLC, UI Dec. Hearing No. 12002659MD (LIRC Oct. 31, 2012).
• the employee's discharge was for alleged excessive use of telephone and e-mail for personal purposes but the employee was never warned that employer considered her personal use of email or telephone to be a problem; the phone use was minimal (2 hrs/mo) and the e-mail was not used for any improper purposes. See, McCarville v. Walnut Hollow Farm Inc., UI Dec. Hearing No. 07003617MD (LIRC March 7, 2008).
• the employee included obscene phrases in e-mail message to co-workers, as (he said) part of a running joke in the work place. The commission found that the phrases, while juvenile and unprofessional, were not unambiguously or objectively offensive; also the recipients did not complain. See, Kiesow v. Best Buy Stores Ltd. Ptrshp., UI Dec. Hearing No. 05001411MD (LIRC June 24, 2005).
• the employee improperly used the employer's email system to send (from home) email to a colleague's work computer containing sexually suggestive images, which were prohibited by the employer's rules but the employee was not warned that such a violation jeopardized her employment. The commission found this single occasion was not sufficiently egregious to warrant misconduct without proper warning. See, Hoppe v. Perfecseal Inc., UI Dec. Hearing No. 04400033OS (LIRC June 29, 2004).
• the employee sent e-mails to a few former and current employees, complaining about coworkers, the employer's management and the work environment; the employer's policies allowed personal use of e-mail but release of confidential info, or messages "disruptive, offensive to others, or harmful to morale" were prohibited. The commission distinguished this case from Merkel, as the employee's criticisms were not publicized to the same extent, and because the employee, unlike the employee in Merkel, had not bee previously warned. See, Holcomb v. Catholic Family Life Insurance, UI Dec. Hearing No. 03605434MW (LIRC March 18, 2004).
• the employee used the employer's fax machine to transmit a personal message, where the fax was not threatening, no vulgar language was used and the employer allowed use of its fax machine for personal use. Further, the commission found that it was not foreseeable that the employer would have been affected by the fax, which was clearly from the employee and in connection with a personal matter. See, Masterson v. Jewelers Mutual Ins. Co., UI Dec. Hearing No. 98401508AP (LIRC Aug. 28, 1998).
Under the circumstances of this case and within the context of the cases summarized above, the commission affirms the no misconduct finding; the employee's violation was isolated and the magnitude of the forwarding was unintentional. Had the forwarding been done as the employee intended, given the prior phone warning for similar policy language, it would have been reasonable to expect a similar warning for limited personal use of the employer's computer and email prior to discharge. Thus, while the employer certainly may have made a valid business decision in discharging the employee for this rule violation, it does not find that this isolated incident rises to the level of misconduct.
Finally, the employer's petition questions the ALJ's partiality and the manner in which she conducted the hearing. It does not assert that any of its material evidence was excluded by the ALJ. As part of its complaint, the employer's representative argues that when the representative asked the ALJ for her name, the ALJ "told me I would read it on the decision she would make within the next two weeks." Given the nature of these complaints, the digital record was reviewed. First, with respect to the name question, the petition omitted the fact that, after referencing the decision, the ALJ did provide her name. Further, the record reflects that the ALJ elicited the material facts and there was nothing to reflect bias on her behalf. It is understandable that the petitioner is unhappy with the results of the hearing. However, the rejection of a particular argument based on the evidence and the law, should not be confused with bias. More importantly, the commission has reviewed this matter and it has done so without bias. The commission agrees with, and declines to overturn, the appeal tribunal decision.
simmojo : 150 : 5
cc:
Brenda Voss
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uploaded 2012/12/07