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Discharged for using the internet to view and/or download information unrelated to work. The claimant’s actions were not in the employer’s best interests. Benefits not payable.in Florida

by Anonymous
(Florida)

Discharged for using the internet to view and/or download information unrelated to work. The claimant’s actions were not in the employer’s best interests. Benefits not payable.


I have 20-calendar days to file an appeal. My question is, should I file an appeal and if so, on what basis? Although the surveillance of the computer was for approximately 7-10 days, this was the first time I was told it was a violation of City policy. Based on previous rulings, I would think this would not be considered willful misconduct or a careless disregard of the employer’s interest. However, given the choice of receiving previously earned vacation and sick leave or being discharged for cause, which would result in being at the same point of appeal for unemployment benefits, I resigned.

I resigned after I was given the alternative to Resign or be Discharge for Cause, which was the final action by the City that convinced me the City had become a hostile work place.

History leading to resignation:
- A physical violence threat by two council members, one in a public meeting.
- Resignation of the City Attorney, Grants Consultant, Public Works Director, City Administrator, Consulting Recorder, Administrative Secretary.*
- A witnessed 3.5-hour conversation, attempting to intimidate my resignation by another council member who was instrumental in the previous 6-resignations.
- A written reprimand by the interim administrator, his first day on the job, on two incidences that occurred under the previous administrator, which were dropped on legal appeal.
- A written reprimand by the interim administrator, his first week on the job, for being late to work one time under a new policy he instituted, which was dropped on legal appeal.
- A substantial change in working conditions that essentially made me incapable of meeting the unwritten job requirements previously assigned, but no new written job requirements were assigned
- Intimidated by the new City Attorney to resign before they found cause for discharge.
- Verbal charges by the interim administrator, his fourth week on the job, implying use of the internet to view and/or download information unrelated to work, which was obtained by surveillance of an assigned laptop computer that was not based on any written City policy.
- Florida Unemployment determined that the “discharge was for misconduct connected with work”

* A regional newspaper’s editorial cartoons document the coerced resignation of the City Administrator by a council member.

Previous use of the laptop computer under the former administrator that was known and/or unknown was not considered to be a violation of City policy. No previous disciplinary actions are on file. No new written or verbal policy was provided by the interim administrator, other than a request not to take the laptop home.

Exerts from City Employee Manual

Intent:
Discharge for cause should seldom be executed without prior warning to the employee. It shall be the policy to provide at least one warning notice to the affected employee unless the specific cause is of a major nature.

Cause:
Disciplinary actions are only to be taken for good and sufficient reasons.

Immediate Suspension:
Department Head may suspend an employee without notice for causes related to personal conduct in order to avoid undue disruption to work, to promote safety of persons or property, or for other serious cause.

Discharge:
An employee may be discharged, when, in the judgment of the Department Head, the employee’s performance or conduct has given good cause.
Reasons for discharge include, but are not limited to:
- abuse, misuse, or theft of public property, equipment, facilities or supplies.
- violation of departmental rules, personnel* or police regulations, safety rules or City ordinances.
- any employee actions as may be included as defined under Florida Statutes 447.203

*Use of Government Property:
Employees are not allowed to use City property of any kind for any reason.

Comments for Discharged for using the internet to view and/or download information unrelated to work. The claimant’s actions were not in the employer’s best interests. Benefits not payable.in Florida

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Answer to Discharged for using the internet to view and/or download information unrelated to work. The claimant?s actions were not in the employer?s best interests. Benefits not payable.
by: Chris - (webmaster)

Anonymous,

I first checked 447.203 which is pretty much every public employee except for those it excludes.

The history leading to your resignation...I think would lead any reasonable person to believe you were not fired for a rule violation, but they finally decided on something they thought might stick.

The "list" reads like a series of retaliatory efforts to me, and contains plenty of fodder for a wrongful termination lawsuit.

But of course you're just asking about the possibility of collecting Florida's measly $275 max WBA (maybe $300 with the Obama stimulus).

My guess is the policy they used to justify your "quit in lieu of discharge" which effectively is a discharge and will require the employer to sustain the burden is:

Discharge:
An employee may be discharged, when, in the judgment of the Department Head, the employee?s performance or conduct has given good cause.
Reasons for discharge include, but are not limited to:
- abuse, misuse, or theft of public property, equipment, facilities or supplies.
- violation of departmental rules, personnel* or police regulations, safety rules or City ordinances.
- any employee actions as may be included as defined under Florida Statutes 447.203

But without a clearly written policy about internet usage (depending on the type and excess of usage, sure hope it wasn't porn) the lack of warning, and prior attempts to discipline could be countered with this policy:

Intent:
Discharge for cause should seldom be executed without prior warning to the employee. It shall be the policy to provide at least one warning notice to the affected employee unless the specific cause is of a major nature.

Things to consider:

If you are aware of previous rulings finding your infraction of an undocumented rule has previously been found not sufficient for termination implies that the rule even if unwritten was not uniformly enforced.

Got anyone willing to be a witness? Subpoena?

As well as strengthening any contention that the discharge was retaliatory in nature as evidenced by all the prior attempts which were dropped on legal appeal. The conversations with the city attorney and the council member.

And just one more little thing...why did they decide to monitor your internet usage now? Do they have a policy that requires them to do so, or if not what exactly prompted this investigation? Do they do this to everyone? Did you do something that would justify this course of action? Or were they grasping at straws and BINGO! I don't think there are many employees that could remain above the fray if an employer decided to scrutinize their every move.

(continued)

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Continued comment
by: Chris - (webmaster)

Hearing for public entities always evoked a big UGH! from me. They so often became a long drawn out affair...especially when they involved attorneys for the employer. What they did best was requesting and receiving continuances, further delaying a claimant's ability to get a reversal. Politicians!!

If you are considering hiring an attorney for other reasons based on this job separation be aware that the outcome of the unemployment hearing can have unwanted ramifications should you not prevail at the UI hearing. Collateral Estoppel

Unemployment hearings are informal and a party does not have to prove "beyond a shadow of a doubt, but rather a hearing officer decides by preponderance or the weightier presentation of evidence and testimony.

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