November 3, 2010

Is viewing online porn at work employment misconduct if there’s no policy prohibiting it?

Posted in Computer Use, Employee Handbooks, Employees' Privacy, Misconduct, Pornography at Work, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , , at 7:47 pm by Tom Jacobson

Blayne Brisson was a full-time utility-maintenance supervisor for the city of Hewitt, MN.  After someone complained that they had seen him using his work computer to view pornography, the city conducted an investigation which uncovered more than 150 pornographic images on his computer.  Brisson later admitted the allegations.

After the city fired Brisson, he filed for unemployment.  The unemployment law judge (ULJ) disqualifed Brisson for unemployment benefits on the basis that he had committed employment misconduct.  Brisson then appealed the ULJ’s determination to the Minnesota Court of Appeals where he argued that he did not commit employment misconduct because the city’s employee handbook did not prohibit viewing pornography on the city’s computers.

In a November 2, 2010 decision the Court of Appeals rejected Brisson’s appeal after concluding that his “use of his employer’s computer to open pornographic e-mail attachments and access pornographic websites seriously violated a standard of behavior that the employer had a right to reasonably expect of [Brisson], even though the employer had not adopted a policy that prohibited [Brisson]’s conduct.”

The court’s decision gives us some assurance that there are types of misconduct that are so obvious that no written policy is needed to prohibit them.  It also highlights the growing problem of the abuse of employers’ technologies.  Despite the court’s assurances in the Brisson case, the best practice is to develop policies that define employees’ technology rights and responsibilities.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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