Employer Can Expect no Dirty Pic Viewing Even with No Policy

November 4, 2010 (PLANSPONSOR.com) – A Minnesota Court of Appeals has ruled that an employer has a right to reasonably expect an employee not to use a work computer to view pornography, even if the employer has not adopted a policy that expressly prohibits the conduct.

In appealing a denial of unemployment benefits, Blayne Brisson, a full-time utility-maintenance supervisor for the City of Hewitt, argued that he did not commit employment misconduct because the city’s employee manual did not prohibit viewing pornography on city computers. The court said it did not find any controlling authority that addresses whether an employee’s use of a work computer to view pornography is employment misconduct when it is not prohibited by an employer’s policy, but using his employer’s computer to view pornographic images and visit pornographic Web sites was not related to any of Brisson’s job duties, and an employer has a right to reasonably expect that an employee will not engage in this type of behavior while at work even with no policy in place that prohibits the behavior.   

The court also said Brisson’s conduct was not conduct that an average, reasonable employee would have engaged in under the circumstances. It also rejected Brisson’s argument that he did not commit employment misconduct because viewing pornography is not a crime, saying the statutory definition of employment misconduct does not require that the conduct must be a criminal act.  

After a city resident reported seeing Brisson viewing pornography on his computer at work, the city conducted an investigation that revealed more than 150 pornographic images on the computer. Brisson admitted using his work computer to open pornographic e-mail attachments and access pornographic Web sites.  

After being fired, he filed a claim for unemployment benefits with the Department of Employment and Economic Development. An Unemployment Law Judge determined that Brisson’s use of city resources to view pornography is employment misconduct, and since he was discharged for this misconduct, he is ineligible for unemployment benefits.  

The court opinion is here.