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Offensive E-Mail Can Get Workers Fired, Court Says

June 29, 2001 

Employees can be fired for sending sexually explicit and offensive e-mails on the job even if their employer has not warned them against such behavior, the Utah Court of Appeals ruled Thursday.

Sending such e-mail in today's workplace constitutes a "flagrant violation of a universal standard of behavior," one that all Utah employees should know -- even without being told -- puts their employers at risk for lawsuits, the court concluded.

The decision Thursday marks the first of its kind in Utah, defining a standard of behavior related to personal e-mail in the workplace.

The ruling reverses a decision made by the state Department of Workforce Services Appeals Board granting unemployment benefits to former Autoliv ASP, Inc. employees Thomas A. King and Christopher Guzman. In Utah, workers are ineligible for unemployment benefits if the department determines they were fired for just cause.

The board had reasoned that Autoliv's strict policy prohibiting nonwork-related e-mail differed from its application of the policy; abuse of company e-mail was common. The board also determined that the difficulty of deciding when an employee's e-mail use becomes excessive obligated Autoliv to tell the two they were the worst offenders and that their e-mail content differed significantly from that of co-workers.

Instead, the company abruptly fired King and Guzman, a move the appeals court said Thursday was justified.

"Autoliv asserts that, in this day and age of sexual harassment lawsuits, it is 'incomprehensible' for the board to hold that a worker could be unaware of the dangers of having sexually offensive materials . . . sent between co-workers in a company's computer network," wrote Judge Judith Billings in the unanimous opinion. "We agree."

The decision reversing the board supports Utah employers trying to enforce policies designed to protect employees from harassment and themselves from litigation, said Janet Hugie Smith, who represented the air-bag manufacturer on appeal.

"This is significant because the court is recognizing a standard of behavior that an employer can expect from its employees," she said. "A company has to take strong action to prevent and correct sexual harassment."

Unemployment claims related to misuse of company computers have skyrocketed over the years, ranging from employee net surfing on company time to passing along dirty jokes, said Virginia Smith, chief legal counsel for the department.

"This decision gives us good guidance by defining what rises to the level of violating universal standards of conduct, which is a very hard call to make," Smith said.

Utah law requires Workforce Services to determine whether an employee had knowledge of the type of conduct his employer expected. Knowledge can be assumed when an employee gets a clear explanation of expected behavior or a written policy, or if the employee's conduct constitutes what the law defines as a "flagrant violation of a universal standard of behavior."

Autoliv gives employees a handbook outlining an anti-harassment policy and stating that company e-mail is for business only. Employees are required to sign a statement saying they have read the handbook, which also tells them they could be fired for any violations.

Autoliv began investigating problems with e-mail messages sent through its computer system in June 1998, according to the opinion.

When the company found nonbusiness-related e-mails were contributing to the problem, a companywide e-mail repeated the company's e-mail policy. Two more companywide e-mails were sent in September 1998 and January 1999, asking employees not to send any personal messages and repeating possible consequences of violating company policy.

Autoliv received a complaint in January 2000 from a former employee alleging she had received offensive and sexually harassing e-mail from current employees. A company investigation determined Guzman and King had violated the e-mail policy and transmitted sexually explicit messages.

Guzman sent 11 nonbusiness-related messages containing jokes, photos and sexually explicit, clearly offensive videos. King sent about 25 similar messages.

Autoliv fired the two for improper and unauthorized use of company e-mail. King and Guzman then appealed their terminations and filed for unemployment benefits.

Both men testified they probably had received the three companywide e-mail messages but probably had deleted them without reading. Thus, they claimed, they were unaware their conduct could have resulted in termination without warning.

Administrative Law Judge Terry Kump upheld Workforce Services' granting of benefits before the Appeals Board affirmed his decision. Autoliv then appealed to the state appellate court.

Paula Brantner, senior staff attorney for the National Employment Lawyers Association, said the appeals court decision upholding a state law that is subjective should signal employees their behavior can be construed in ways they may or may not have intended.

"Employees should understand they don't have a lot of rights in this area," she said.

Workforce Services' Smith said the decision has broad implications for employees and employers in Utah.

"People tend to think their computer is their private domain," she said, "but this shows that at work it simply isn't."

BY ELIZABETH NEFF, THE SALT LAKE TRIBUNE, © Copyright 2001, The Salt Lake Tribune

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