Employee fired for offensive e-mails challenges company’s policy
Imagine your company’s IT department catches an employee forwarding offensive e-mails to co-workers. It’s a clear case for discipline or termination, right? Here’s one employee who didn’t think so:
A company monitored its employees’ Internet and e-mail use and found that one worker had sent several e-mails containing pornographic images to other employees.
The company had a policy saying work computers “should not be used to transmit, receive or download any material of a personal, frivolous, sexual or similar nature.” Since he clearly broke that rule, he was fired.
Sounds like a simple case of an employee being terminated for gross misconduct. But the employee didn’t think no — he filed for unemployment compensation.
The unemployment board agreed with him. Why?
First of all, it felt the policy wasn’t written clearly. The rule said employees “should not” — as opposed to “shall not” — send sexual e-mails. Therefore, the board ruled, the company doesn’t “clearly ban the activities, rather it just merely recommends those activities not occur.”
Also, the employee claimed what he did was common practice. And although he presented no evidence that was so, the board believed him.
Didn’t end there
The company appealed the decision in court. This it time it got the answer it wanted.
First, the court ruled there’s no substantial difference between “should not” and “shall not” — it’s obvious to anyone who reads the policy what the company meant, and it went on to say anyone who does those things would be disciplined.
The judge also tossed the employee’s “everyone else was doing it” argument. He couldn’t prove they were, and besides, that didn’t mean his actions weren’t against company policy.
The decision was reversed, and the employee was denied benefits.
The company won in the end, but not before fighting a long and costly legal battle. And all because of one word in its computer use policy.
It’s important to make sure all rules are written as clearly as possible. Read over policies and think about how they could be interpreted — and consider having them reviewed by a lawyer.
Cite: Ernst v. Sumner Group, Inc.
Comments
One Comment on Employee fired for offensive e-mails challenges company’s policy
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Joel Brilliant on
Tue, 3rd Mar 2009 4:25 pm
I dealt with a similar issue, but the rules were very clearly written. The initial claim was denied, but the employee appealed and the ALJ took the employees side…that the placement of pornography on a shared drive was unintentional. I took this to the state appeals board and won. One state agency fights against harassing environment while another looks for any justification to pay out an unemployment claim. They conflict and drive employers crazy.
You must differentiate. The state UI claim process is managed to pay out as much as possible to justify their existence. Don’t try to find logic in their decisions.
Wrongful termination is more based upon law, so logic is more prevalent there.
