Employee Terminated for Accessing ‘Inappropriate’ Websites not Entitled to Unemployment Benefits — Berglund v. ITI

[Post by Venkat Balasubramani]

Berglund v. Industrial Tech. Institute, No. 298227 (Mich. Ct. App. July 21, 2011)

Berglund worked at Industrial Technology Institute and was terminated for “using his computer to access inappropriate websites” (and for printing materials unrelated to his employment).

Under Michigan law, an employee is disqualified from receiving benefits if he or she is terminated for “misconduct.” Michigan courts define misconduct as:

conduct evincing . . . willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employee has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

Misconduct is not “mere inefficiency, unsatisfactory conduct, [or] failure in good performance . . . .”

The hearing officer found that Berglund was placed on probation and directed to not use ITI’s resources or equipment to further his outside activities. After this warning, Berglund was found to have printed materials relating to his outside employment (his teaching gig at Central Michigan University). In addition, the hearing officer found that Berglund visited a number of “inappropriate” websites (e.g., teenagecheerleaders.com, sextelevision.net). Based on the records, the hearing officer concluded that “in an eight hour day, the records reflect some 3½ to 4 hours of visiting those types of sites.” The hearing officer concluded that this was “misconduct,” and as a result, Berglund was denied benefits. The review board agreed with this determination.

The trial court reversed the agency’s determination on the basis that there was insufficient proof that the websites in question were “inappropriate.” The court of appeals reversed, holding that testimony regarding the inappropriate nature of the websites was sufficient, and documents and exhibits demonstrating the content of those sites were not necessary. The court also noted that accessing inappropriate websites may compromise the employer’s network and the employer thus has a strong interest in preventing the access of inappropriate websites:

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. Contrary to Berglund’s position that his actions were immaterial, use of the employer’s computer equipment to access websites with nudity is not the equivalent of keeping a magazine in a desk drawer.

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I can’t say that the decision is much of a shocker, and it’s tough to muster any sympathy for an employee who allegedly spent 3 to 4 hours during a workday on non-work related activities, but I am definitely breathing a sigh of relief that the court did not address the issue of whether accessing sites such as Facebook at work constitutes “misconduct.” A decision to that effect would leave us all in a precarious position indeed.

On a more serious note, the court’s analogy to the magazine kept in a desk drawer, which the court implies would not constitute ‘misconduct,’ is interesting. As more activities migrate online, it becomes increasingly easier for employers to regulate employee conduct.

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