Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: Brian D. Hollenbeck v. State of Wisconsin Labor and Industry Review Commission and Department of the Air Force, 440th Airlift Wing, Case 04-CV-6205 (Wis. Cir. Ct., Milwaukee Co., April 11, 2005)

Digest Codes:   MC 630.07   MC 640.01    MC 690

The employee worked as a computer technology specialist for the employer, the U.S. Air Force. His primary duties involved computer network security, such as monitoring Internet and email traffic for inappropriate use by other employees. He was put in charge of an 18 year old female intern and began having an affair with her. He made it possible for this intern to bypass firewall safe guards and access other workers’ computers as well as unauthorized websites. The employer’s investigation revealed that he also had been exchanging a large number of personal emails with the intern, even though personal emails were prohibited. Finally, a check of his computer revealed that he had downloaded pornographic material and that he had emailed it to the intern.

The appeal tribunal found no misconduct because the employer failed to bring firsthand evidence to the hearing. The commission reversed and found misconduct based on the employee’s own admissions that he had given the intern the unauthorized access, transacted the personal email, and downloaded pornography. He alleged that he had not intended to allow the intern unauthorized access, that some personal email was allowed by the employer, and that he had downloaded the pornography as part of an investigation that had not been completed.

Held: The commission’s finding of misconduct is affirmed. The employee’s excuses for his behavior are undercut by inconsistencies in his own testimony. The intern had deliberately been given unauthorized access and that access had never been removed, the volume of the applicant’s email was much too large to have been condoned, the email contained pornography, and the alleged investigation of pornography had taken place over 18 months previously. The employe is incredible and his behavior constituted misconduct.
 

[LIRC decision]


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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