Third Department Affirms Unemployment Insurance Appeal’s Board Finding of No Misconduct Due to Unintentional Internet Usage

In the Matter of the Claim of Jay Osborne, 102 A.D.3d 1048 (3d Dep’t Jan. 24, 2013): In this case, the plaintiff was terminated for violating his employer’s policy against personal use of the Internet during work hours because he allegedly utilized his work computer to “surf the web.” The Unemployment Insurance Appeal Board (UIAB) reasoned that his actions “had not risen to the level of disqualifying misconduct because the Internet usage was unintentional.” In affirming the UIAB’s decision, the Third Department held that the UIAB did not err by crediting the plaintiff’s testimony that he “never intentionally engaged in personal Internet use on his work computer” and instead was (1) using the Internet for work-related reasons, (2) his Internet usage “resulted from pop-ups beyond his control,” or (3) other employees utilized his computer. This case reiterates that employers who discharge employees for improper Internet usage should retain documentation or other evidence reflecting the personal Internet use; if employers fail to do so, employees may easily cite to other potential explanations in this technology-based age.