Porn Keyboard.jpgA recent denial of unemployment benefits in Berglund v Industrial Technology Institute (7/21/2011) offers important insight for both employers and employees when it comes to accessing Internet pornography in the workplace and technology use policies.   

Overview of Michigan Unemployment Benefits

Under Michigan law, an employee is disqualified from receiving unemployment benefits if he or she is discharged or suspended for “misconduct connected with … work.” MCL 421.29(1)(b). Employers bear the burden of proving misconduct. And normally this is a high burden to meet because “misconduct” must evince a “willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior” that an employer has the right to expect of its employee. Carter v MESC, 364 Mich 538, 541, 111 NW2d 817 (1961). 

Willfulness can be shown by an employee’s conscious violation of an important, well-known employer policy or rule, particularly if the employee has been warned previously about such a violation. 

The Initial Denial of Unemployment Benefits

In the Berglund case, the hearing referee made an initial determination that the discharged employee, Mr. Berglund, was guilty of misconduct and, therefore, denied him unemployment benefits. The Michigan Employment Security Commission Board of Review upheld the denial of unemployment benefits. 

The misconduct consisted of evidence presented by the employer that:

  • Mr. Berglund visited a number of inappropriate web sites, including “teenagecheerleaders.com,” “sextelevision.net,” and other sites involving swimsuit models and Victoria’s Secret;
  • These sites contained images of scantily dressed females, nudity, and other images considered pornographic;
  • Mr. Bergland admitted to receiving and keeping emails that were pornographic and that he “might have” instructed his computer to access a site like sextv.com; and 
  • In an eight hour day, records reflected approximately 3½ to 4 hours was spent by Mr. Berglund visiting these types of sites.

The Denial of Unemployment Benefits is Reversed

The Employment Security Commission Board of Review’s decision, however, was reversed by the Wayne County Circuit Court. In reversing this decision, the Court noted that the employer did not present any evidence that Mr. Berglund violated an employer policy or technology use policy in accessing these sites. Further, there was no evidence that the employer directed Mr. Berglund not to view such sites.

The Circuit Court also noted that there was no evidence that Mr. Berglund’s accessing any sites negatively affected his work performance. Additionally, the Court noted that personal use of work computers was allowed by the employer. 

The Denial of Unemployment Benefits is Reinstated

When the issue of Mr. Berglund’s unemployment benefits reached the Michigan Court of Appeals, it reinstated the Michigan Employment Security Commission Board of Review’s decision to deny unemployment benefits. Interestingly, the Court touched on the idea that accessing websites of the type at issue can lead to spam, pop ups, and cookies, which can impair a network and, therefore, harm the interest of the employer: 

An employer has an interest in maximizing the capability of its network. An employee who deliberately accesses websites that hinders the work network’s capability harms the interests of the employer.

Under the Court’s reasoning, this “harm” also supported a finding of misconduct. 

The Take Away

Certainly no one would seriously dispute that accessing pornographic websites or other sites of a sexual nature would fall into the category of a “good career move.” But this case illustrates the considerable range of opinions that can be reached as to whether such conduct should be the basis for denying an employee unemployment benefits.    

Employees

For individual employees, it is critical to follow an employer’s computer use policies. It is also equally important that in the absence of such policies or when it comes to “grey areas,” common-sense should be exercised in using workplace resources to access the Internet. And if you are ever uncertain – a good rule of thumb is accessing pornography sites at work is never a good idea. Further, it should be assumed that your workplace Internet use is monitored.     

Employers

First, it would have been much harder for the circuit court to reverse the denial of unemployment benefits if the employer had in place a technology policy that expressly prohibited accessing or displaying any kind of sexually explicit image or document using company resources. This is because there would have been no need to make judgment calls made by the circuit court to reverse the denial of benefits. 

Second, it is not unreasonable to expect (and in my experience it should be anticipated) that employees use company resources to access Internet pornography or similarly inappropriate sites while at work. For this reason, it is critical for companies to have a policy that expressly puts employees on notice that accessing or displaying any kind of sexually explicit image or document on any company system is not permitted, a violation is subject to discipline, up to and including discharge, and that Internet usage may be monitored to, in part, enforce the policy. 

Third, the argument that cookies, spam, and pop-up ads provided sufficient harm to the employer to justify a denial of unemployment benefits was unconvincing. Such Internet flotsam is present to some degree on all commercial websites and this particular employer did not place any restrictions on accessing any sites for personal use.

Also, any network traffic is going to impact an employer’s network to some degree. But to say a cookie, which is simply a text file, will take up sufficient bandwidth to hinder network traffic is a stretch (any network administrators please weigh in on this issue). And this stretch would fall flat if it had been shown that other employees were allowed to access video content or stream Internet music over the company network because both actually devour significant amounts of bandwidth.

A stronger argument would have been to take the position that accessing, downloading, or saving images using company resources that contain sexually explicit material violated the company’s sexual harassment policy (assuming the employer had such a policy). It is far more convincing that such conduct approaches the “willful or wanton” disregard of an employer’s interest – preventing sexual harassment or a hostile work environment – to warrant a finding of misconduct warranting a denial of unemployment benefits than the network traffic argument.