Willful Misconduct???

[apacheman15]

Hello there. I recently was terminated from my job ( in Pennsylvania) for accessing a pornographic website on a company provided laptop. The laptop was being used at my home during non-business hours and I was not dialed into the company network at the time. I am not disputing that the company had cause to fire me because I did violate policy. Was it extremely stupid of me? ABSOLUTELY!!!However, I am disputing their determination to deny my Unemployment Benefits. I contend that it was not willful misconduct if I did not know at the time that I was violating policy. I did not know that it was against company policy to access these websites during non-business hours if NOT dialed into the company network. I did not sign any documents that explained that this was the company policy, although I have since found out that it is in the company policy and procedure handbook found in our corporate email database. Do I have a case to get my Unemployment Compensation approved at at an appeal hearing?

 

[ecmst12]

I think your chances of winning the appeal are EXTREMELY slim.

 

[cbg]

You also might want to consider that it is NOT the employer who makes the decision as to whether you get unemployment. The employer can contest, or not contest, but the state is the only one who makes the decision.

I have had employees denied unemployment even when I did not not contest and I was willing for them to receive benefits charged to my account, because the state decided that their employment ended for a reason that did not qualify them for benefits. ONLY the state will decide, not your employer.

 

[apacheman15]

Thanks, I had not thought of that. Assuming my employer did NOT contest and the determination was made from the unemployment office, what do you think my chances of winning an appeal are if I use the defense that it was not "willful" if I did not know of the rule ? Wouldn't it be more prudent for the employer to get a signature on this policy if / when providing employees with laptops? I am quite certain that they have a very lengthy policy / procedure handbook and it is probably not fair to assume that most employees have read the entire handbook.

 

[swalsh411]

By your own admission the employee handbook was out there on the network where employees could read it so even if you did not receive a copy or some other computer use policy (which I find very hard to believe) then the rules were still made available for your review.

If this were an unusual policy, for example "no employee shall change the wallpaper or colors on their company computer" then you would probably win but rules forbidding using company property to access pornography is standard everywhere. Even if you were not specifically told that you were not to look at porn on the company computer, you should have known that this was the expected standard of conduct. Violating expected behavior that an employer can reasonably expect of an employee is one of the definitions of willful misconduct under PA law.

I wouldn't count on winning.

 

[cbg]

I agree. I don't think your chances are very good here. There are some things there just don't have to be a rule about and using company equipment to look at porn is one of them. I'm not sure I'd want to go the route you're suggesting - common sense would tell you that looking at porn on anything belonging to the company including their equipment (no matter whose time you were on) is a no-no.

 

[apacheman15]

The research that I have done online has told me that it is smart to file an appeal because it is possible to win even if it is a weak case and that there is no drawback to filing an appeal ( provided I don't pay for an Attorney). The actual reason given to me for my termination was that " inappropriate material was found on your computer which is grounds for termination." On my paperwork filed to the unemployment center, I never used the word pornography / porn / or pornographic". I simply stated that I was " terminated for accessing an inappropriate website on a company provided laptop during non-business hours". I had worked for the company for almost 12 years and always did what was asked of me, performed my job well, and got along with co-workers. On the determination letter provided by the unemployment center, it stated that I was terminated for " violation of corporate electronic technology policy" and again, the word pornography / porn / pornographic was not used. Therefore, I am hoping that my previous employer did not contest any of the information that I wrote down on my paperwork and did not " fry me up" in their response to my claim. In your experience, is it possible that the employer does not show up at all to an appeal hearing? I have a friend who works there still and he told me that in the company handbook, it states what I did is " grounds for punishment / suspension and POSSIBLE termination". Make no mistake...I am very angry with myself for doing something so stupid, but also feel that given all of the circumstances, it was a raw deal for me to not even get a warning. Though I do know that the company had every legal right to do what they did since ignorance / stupidity is not a legal defense. Hopefully, the unemployment office has more tolerance for the "stupidity / ignorance" defense. I just feel that it is worth filing an appeal as my " hail mary". Do you agree?

 

[cyjeff]

An appeal costs nothing.

Most companies have a zero tolerance pornography policy.

 

[commentator]

Well, keep filing for weeks. Send back a timely appeal to the appeals tribunal. As you said, it costs nothing, no real downside. Do be looking diligently for another job, don't be expecting a backpay.

An in person hearing generally reduces the chances that an employer will show up, but as cbg has pointed out, even that does not give you a slam dunk win. They got the information on the termination, at least some of it, before the initial decision was made. It will be read into evidence by the hearing officer if the employer is not present.

Biiiiggg bull......to the idea you think that any normally intelligent hearing officer is going to believe you didn't know it wasn't the thing to do to look up "inappropriate material" (and doesn't know this means porn) on your company computer at home on your own time. In fact, this is going to probably be interpreted as gross misconduct, the kind you should have known it was wrong to do it, even the first time, without giving you a warning and a chance to do better.

If your initial appeal has been denied, you have already lost the first round on this. So what the employer has given them was sufficient to have them deny your claim initially. It probably wasn't necessary for them to provide extensive documentation to have this one denied.

But I suspect strongly that they will show up at a hearing and for fight this one. Having terminated you, having you caught red-handed, so to speak, (I assume they have the computer with the history in question now) they're not going to miss the chance to win an easy one. It would be bad business practice on the part of the employer to accept the charges on this unemployment claim without a fight.

I don't see much defense that will fly based on "I didn't know" when you had been told you were responsible in some way for the employee handbook by the employer at the time of your hire. In most cases, one signs something agreeing to abide by the handbook. One is also generally expected to have a pretty good idea of what is meant by "inappropriate materials" even without graphic examples being provided.

Misuse of company computers and attendance issues are the two most common ways to be terminated and not get unemployment. They gotcha, in my opinion.

 

[Hot Topic]

No matter how you dance around the issue, you used the company's laptop to access material that no one should have had to notify you in writing or verbally if you had any common sense at all that you shouldn't have accessed.

 

[cbg]

I'm not saying don't appeal, but you asked if we thought you had a case to appeal, meaning, do we think you will win. At least that's how I interpreted your question.

And I don't think you will win. Sorry, but I don't. I don't think you have much of a case if any and I think any halfway competent ALJ will think the same thing.

But you never know, maybe you'll luck out and get an incompetent ALJ.

 

[apacheman15]

I agree wholeheartedly with the responses that everyone has sent. I don't think I have much chance to win an appeal, but I know I can't win if I don't file an appeal. ( Kind of like you can't win the lottery if you don't play). I guess I am hoping for an incompetent ALJ. Stranger things have happened. Hey, if OJ was found innocent, obviously the guilty aren't ALWAYS found guilty. ( And before all of you point out that OJ was found innocent by a jury, I am only saying stranger things have happened).

 

[cbg]

Don't forget that even if you do luck into that hypothetical incompetent ALJ, in most states there are several levels of appeal and your employer will probably have another chance to contest....