In two recent decisions, the Commonwealth Court of Pennsylvania added some much needed “teeth” to employers’ internet usage policies.

In the first case, Thompson v. State Civil Service Commission, 863 A.2d 180 (Pa. Commw. 2004), the Court upheld a finding by the Civil Service Commission that excessive and inappropriate use of employer owned computers constituted “just cause” for removal. The employer had produced evidence of the employee’s use of the internet, showing the exact percentage of time he spent online and the nature of the sites he visited. There was also undisputed evidence that the employee was aware of the employer’s policies regarding internet usage and its policies regarding inappropriate internet sites. The Court affirmed the Commission’s conclusion that the employee spent an excessive amount of time visiting websites not related to work and that he visited websites displaying nudity, combined with efforts by the employee to delete his internet history, established “just cause” for his removal. While upholding the decision, the Commonwealth Court felt constrained to offer its opinion that the punishment may have been too harsh, but recognized that it could not substitute its judgment for that of the Commission.

The Thompson case is significant because it provides employers who have “just cause” limitations on termination of employees a roadmap for determining what constitutes “just cause.” Clearly, both the Commission and the Court were moved by the existence of a strong internet usage policy and the evidence of “tracking” produced by the employer. In this regard, employers should be certain that their internet usage policies are in place, updated, and enforced. This decision could be particularly helpful to those employers who are unionized, who have “just case” limitations by statute, and who have “just cause” provisions in an employment agreement.

The second case, Pettyjohn v. UCBR, 863 A.2d 162 (Pa. Commw. 2004), involved an application for unemployment compensation benefits after an employee was terminated for violation of the employer’s policies regarding internet access for personal use during work time. The Commonwealth Court held that the use of the internet for personal purposes during working hours, in light of the employer’s internet usage policy, constituted “willful misconduct” under the Unemployment Compensation Law.

The Court noted that the employer’s policies strictly prohibited internet usage during work hours, limiting access to personal breaks or lunch. Moreover, the employee was aware of the policy, and that if the employee did not have sufficient work, she was to see her supervisor. Finally, the Court found that the employer had a policy providing for immediate discharge where an employee refused to obey a direct instruction from a supervisor.

Given these facts, the Court concluded that the employee’s personal use of the internet during work hours constituted a refusal to obey a direct instruction from a supervisor and, therefore, rose to the level of willful misconduct. Significantly, the Court refused to accept an argument that the employer should have adhered to its own progressive discipline policy, instead finding that the employer’s policies specifically provided for immediate discharge in certain circumstances.

The Pettyjohn decision reinforces the need for employers to diligently maintain, update, and enforce internet usage and related electronic communications policies, and again provides employers with a roadmap to protect themselves from claims or damages arising from the discharge of an employee for violations of such policies.

Rhoads & Sinon regularly represents private and public sector employers in all aspects of Employment and Labor Law, including drafting and implementation of handbooks, policies, and work rules, discipline and discharge of employees, and the defense of unemployment compensation claims.

For more information about these cases or any related issue, Attorney Tribeck can be reached at (717) 237-6701 or rtribeck@rhoads-sinon.com.

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