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It all depends on what is in your handbook. Do you let other employees look at other websites? Have you made it clear that job searching on company time and company property is prohibited? Are your employees “At Will”?
I wouldn’t think that this would be considered Gross Misconduct. There is not a clear definition but if you do TERM this employee… I would make sure that COBRA is offered (if applicable)
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The employees are at will per the handboook and policy of the Company. They sign a receipt that they received the handbook. We told her that we didn't have one in her file and had her sign it yesterday.
The owner wants to terminate her immediately even though we have never written her up before. We were informed that she was looking for another job on her computer by another employee so we looked at her temporary internet files and it does show a couple of job sites.
The owner also wants to make sure that she cannot get unemployment so we would fire her for misconduct for using the computer during business hours. What would we need to prove that she did so she wouldn't get unemployment?
The handboook states that the computers are to be used for business purposes only and not for personal use it doesn'r say that it's prohibited, but they can use the computer in the break room at lunch time and on breaks for internet acccess. Not all employees have internet on their computers, but this person does.
This is what thhe handboook states:
_____________________________________________________________________________________
Use of Electronic Media
Amber Property Management uses various forms of electronic communication including, but not limited to computers, e-mail, telephones and Internet. All electronic communications, including all software, databases, hardware, and digital files, remain the sole property of Amber Property Management and are to be used only for Company business and not for any personal use.
Electronic communication and media may not be used in any manner that would be discriminatory, harassing, or obscene, or for any other purpose that is illegal, against Company policy, or not in the best interest of the Company.
Employees who misuse electronic communications and engage in defamation, copyright or trademark infringement, misappropriation of trade secrets, discrimination, harassment, or related actions will be subject to discipline and/or immediate termination.
Employees may not install personal software on Company computer systems.
All electronic information created by any employee using any means of electronic communication is the property of Amber Property Management and remains the property of Amber Property Management. Personal passwords may be used for purposes of security, but the use of a personal password does not affect the Company’s ownership of the electronic information.
Amber Property Management will override all personal passwords if necessary for any reason.
Amber Property Management reserves the right to access and review electronic files, messages, mail, and other digital archives, and to monitor the use of electronic communications as necessary to ensure that no misuse or violation of Company policy or any law occurs.
Employees are not permitted to access the electronic communications of other employees or third parties unless directed to do so by Company management.
No employee may install or use anonymous e-mail transmission programs or encryption of e-mail communications, except as specifically authorized by Tracey Hackwith.
Employees who use devices on which information may be received and/or stored, including but not limited to cell phones, cordless phones, portable computers, fax machines, and voice mail communications are required to use these methods in strict compliance with the trade secrets and confidential communication policy established by the Company. These communications tools should not be used for communicating confidential or sensitive information or any trade secrets.
Access to the Internet, websites, and other types of Company-paid computer access are to be used for Company-related business only. Any information about Amber Property Management, its products or services, or other types of information that will appear in the electronic media about the Company must be approved by Amanda L. Om and /or Tracey Hackwith before the information is placed on an electronic information resource that is accessible to others.
Questions about access to electronic communications or issues relating to security should be addressed to Amanda L. Om.
_______________________________________________________________________________________
Thank you for your input - I am really not sure about this one.
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When an employee is “At Will” you can let them go for no reason at all. Of course when unemployment comes in to play… per the California’s program for the unemployed it states “Unemployment Insurance (UI) is an insurance program that is paid for by your employer. It provides you with an income when you are out of work through no fault of your own”. Since you do have a policy about not using the computer for personal use you can fight her claim to getting UI… but since you had to have her sign the handbook form AFTER this incident you can’t really prove that she was well aware of this. She might be granted UI. It really all depends on EDD.
If an employee that has internet access is on a break… can they use the computer at their desk? Or do they need to use only the one in the break room? If this employee was on his/her break during this time and you allow internet access at their desk…
You also need to think about what has happened in the past. Has passed employees who may have had internet issues only gotten a write-up? When firing, it’s very important to be consistent with your policies. You don’t want any employee to think they are being discriminated.
The bottom line is that because this employee is “At Will” you can let them go at any time but be you might have to pay for UI.
Our office has sent out email memo a few times stating that using the internet on company time for personal use will result in immediate termination.
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I would think that the employee could use the one at their desk if they had internet access, it has never been specified that they had to use the one in the break room only. I have seen people using the one in the break room during business hours as there is no designated break time.
She signed the receipt for the handbook the day prior to being fired, but since it is in the handbook doesn't that count?
No one has ever been written up for internet use. Prior to this office (it moved on 7-01-10), everyone had internet at their desks and no one was written up for usage, so I'm not sure about that part holding up. I thought that firing was a little harsh, but I think there was more to it, she brought up another reason that had occured months prior being used also so I think she has wanted to do this for a while.
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If this employee request unemployment, EDD will send out a form for you to complete about the termination. This is very time sensitive and will need to be mailed out right away. On this form you can explain the issue and they can decide to approve or decline the unemployment claim. Once EDD makes a verdict you or the ex employee may tried to overturn the verdict. This will result in going to court and you will have to weight the pros and cons about going and taking time out of you day for this. Hopefully that will not happen.
Make sure that you document all issues and always be consistent with your procedure and policies. Make sure all employees are aware of your policies. If all your policies are in your handbook make sure that employee signs a document about receiving the handbook before any incident happens.
If an employee is never given a handbook and/or never signs the acknowledgment it put you in a tight spot when fighting an unemployment claim.
IE: Employee violates computer usage on 3/15, Signs the acknowledgment of the handbook rules on 3/30 and you terminate the employee on 4/1 because she violated the rules on 3/15… EDD office MIGHT grant unemployment.
California is an “At Will” state… but IU claims are not fun!
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Thank you so much for all of your input. It really helps to be able to walk it through with someone. I like the idea about the memo about computer use.
We will see how it goes ~ Thank you again.
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