December 21, 2010

Violating the employer’s “Use of the Internet Policies” while at work

Violating the employer’s “Use of the Internet Policies” while at work
Schnaars v Copiague Union Free School District, 275 AD2d 462

Public employers are adopting policies dealing with its employees using the agency’s computers to access the Internet for personal business and transmitting and receiving personal e-mail. Some employee organizations have included demands to negotiate computer and e-mail policies among its collective bargaining proposals.

Recognizing the growing concerns of both the employer and employee organizations in this area, the Schnaars case serves to illustrate the problem and its resolution when one employee was found guilty of violating the employer’s computer policy.

The Copiague Union Free School District distributed a written memorandum advising its custodial staff that using its computers to access inappropriate material on the Internet violated district policy after it learned of the unauthorized use of its equipment by district employees.

The memorandum also cautioned that employees who violated the policy would be subject to disciplinary proceedings, which could result in suspension and/or termination.

About three months after promulgating its policy, the district learned that Robert Schnaars, the head custodian of the night crew at Copiague High School, used the school’s computers to view pornographic web sites on the Internet with his subordinates during two night shifts.

Schnaars was served with disciplinary charges and ultimately found guilty of using the District’s computers to view inappropriate material. Rejecting the hearing officer’s recommended that Schnaars be demoted from his position of head custodian, the district imposed the penalty of dismissal.

Schnaars, however, contested his termination on the grounds that the penalty imposed by the district was disproportionate to the offense. The Appellate Division agreed and remanded the matter to the district with instructions that it impose a penalty other than dismissal in light of Schnaars’ previous unblemished 13-year record of loyal service to the District with many accolades.

The court said that in its view, the District did not give sufficient weight to these mitigating factors. But for Schnaars’ unblemished 13-year record of employment with the district, the court might well have sustained his dismissal for violating the policy.

Clearly the court was neither troubled by the fact that the district had adopted a computer use policy nor that it had initiated disciplinary action when it learned that an individual had violated the policy. Its only concern in this case was the nature of the penalty imposed in view of Schnaars employment history with the district.

It appears that the courts will not treat violations of policies addressing the personal use of computers by employees lightly.

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