Labor & Employment Law

Sending pornography via Email is misconduct and disqualifies employee for Unemployment Insurance Benefist

Geisinger Health Plan v Unemployment Compensation Board of Review, __N.E.2d__(Pa. Ct. Common Pleas Feb. 5, 2009) is an interesting Unemployment decision out of Pennsylvania. A divided Court reversed a decision of the state's Unemployment Compensation Board granting benefits to an employee who admitted sending pornographic emails to fellow employees. I view such misconduct as a minor form of misconduct. Unfortunately, most courts rule otherwise.

Mitchell H. Rubinstein

NYPPL Comments: Over the years NYPPL has summarized a number of cases involving employees alleged to have been involved with pornography.

These include a case involving ?Irresistible impulse? as a defense [Perry v Comm. of Labor, 283 A.D.2d 754]. Readers may recall that in the 1959 movie Anatomy of a Murder actor James Stewart successfully defended an individual accused of murder on the theory his client's actions were the product of an "irresistible impulse." Unemployment insurance claimant John K. Perry was not as successful with this theory in challenging a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of Perry's alleged misconduct: his misuse of his employer's computer equipment. Perry, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours. Perry's defense: his behavior was nonvolitional given his "impulse control disorder". He produced a letter from his psychologist indicating that he suffered from posttraumatic stress disorder displayed in the form of obsessive behavior such as accessing pornographic websites. However, said the court, the evidence failed to establish that Perry was unable to control this impulse while working. The Appellate Division's conclusion: Since Perry disregarded his employer's policy against accessing inappropriate websites at work, substantial evidence supports the Board's decision that Perry lost his employment due to disqualifying misconduct.

Another case: Ghita v Department of Education of the City of New York, [posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_30706.pdf ]. Mircea Ghita challenged an arbitrator?s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected Ghita?s claim that the arbitrator exceeded his authority under Education Law §3020-a, and the award terminating petitioner's employment is a violation of public policy and New York State Law.

In addition, a number of courts have considered the question of an employee's right to privacy in using his or her employer's computer equipment. In Fraser v Nationwide Mutual Insurance Co., 135 F. Supp. 2d 623, the court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer?s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.As to the issue of the expectation of privacy, the appointing authority may wish to periodically advise its officers and employees that they have no right to privacy with respect to any data retrieved from the employer's computers, servers, video tapes, message tapes or other storage devices, electronic or otherwise.

In another case, the employee complained that she had been subjected to disciplinary action because of malice [Howard v City of New York, 294 A.D.2d 184]. An agency filed disciplinary charges against the employee only to later withdraw the charges. Is the employer guilty of malicious prosecution? As the Howard decision demon­strates, it depends on the circumstances. The New York City Department of Corrections filed disciplinary charges against one of its correction officers, Cheryl Howard. The basis for these disciplinary charges: allega­tions that Howard had appeared in a pornographic video. When it was subsequently discovered that Howard had neither appear in, nor was in­volved with, the pornographic video, the Department rescinded and withdrew the disci­plinary charges it had filed against her. Howard, however, sued the Department, charging it with malicious prosecution because, she alleged, the Department had conducted a "deficient investigation into the grounds for initiating the disciplinary proceeding against her." The Appellate Division sustained the Supreme Court's dismissal of her charge of mali­cious prosecution because Howard did not allege any "special injury." According to the ruling, Howard did not allege any "concrete harm ... considerably more cumbersome than the physical, psychological or financial demands of defending" the disciplinary proceeding. Further, said the court, Howard did not demonstrate that she had suffered "a highly substantial and identifiable interference with person, property or business.

Full post as published by New York Public Personnel Law on March 12, 2009 (boomark / email).