This Shouldn't be News, but … Accessing Porn on Company Computers is Misconduct

The Michigan Court of Appeals (CA) recently came through for employers, confirming that accessing inappropriate websites is misconduct that makes a former employee ineligible for unemployment insurance benefits. In the case of Berglund v Industrial Technology Institute, 211 WL 2936772 Mich App 2011, the CA actually had to overrule the trial court's decision. At the administrative level, the Administrative Law Judge (ALJ) and the Board of Review had denied the employee unemployment benefits, but the trial court noted that the employer had not entered documentary evidence of the inappropriate conduct and thus found that there was insufficient evidence to warrant the denial of benefits.  This finding was despite the employer's production of testimony that the ALJ and Board of Review deemed superior in weight, quality, and credibility.

The discharge of the employee, Berglund, was based on two types of misuse of the employer's resources and equipment.  First, despite a warning not to use the company's equipment to help him with his outside employment (teaching a college course), the employee printed a student's paper.  Second, IT personnel and Berglund's manager confirmed that Berglund used company equipment to access a number of websites that contained nudity and scantily clad teenage girls, including some websites that were considered pornographic. The employer's evidence was deemed superior by the Board of Review in weight, quality, and credibility. The trial court, however, overturned that decision, finding that there was insufficient evidence to (1) warrant denial of benefits, and (2) prove the misconduct standard necessary to do so.

Berglund argued that his activities, regardless of their nature, did not affect his work performance.  He claimed, essentially, that his conduct did not meet the standard necessary to deny him unemployment insurance benefits.  According to Berglund, his actions did not demonstrate a "willful or wanton disregard of an employer's interest" of the kind that is "found in deliberate violations or disregard of standards of behavior which an employer has the right to expect of his employee."

Fortunately, the Court of Appeals found that there was more than sufficient evidence to confirm misconduct.  Berglund admitted that he printed a paper from one of his students at a second job, when he previously had been told to no longer use the company's resources or equipment to further his outside employment.  He also admitted receiving and keeping e-mails that the court noted that Berglund had acknowledged were inappropriate.  The information technology manager of the company testified that two company employees had examined the website visited by Berglund's computer and found that several contained nudity and were considered pornographic.  Finally, Berglund also acknowledged that he recalled an incident where other employees had been accessing websites of this nature that lead to spam, pop-ups, and cookies and that his employer had to make changes to filter its computers to prevent those types of sites from being attached. The Court of Appeals ultimately found Berglund's arguments to be unimpressive.  Berglund compared his accessing the inappropriate websites to "keeping a magazine in a desk drawer."  This argument failed to convince the Court that Berglund's actions were not willfully disregarding his employer's interests.

• Read full Fall 2011 Employment, Labor & Benefits Quarterly