Sometimes you wonder if employees think the work environment is like reality TV. You know, you vote a fellow employee off the island. How do you do that? Well you get support and stir up trouble by sending fellow employees a lot of very petty e-mails putting down the employee you want kicked off the island. Ironically in Hoock v. Missouri Dept. of Revenue, the tables were turned;  the employee who sent the petty e-mails was kicked off the island.

Computer Equivalent of Water Cooler Gossip

In the Hoock case the Employee worked for the Missouri Department of Revenue (Department) as a revenue-processing technician.  On her first day of work, March 16, 2010, and again on October 13, 2010, the Employee signed an Employee Acknowledgment of Administrative Policy stating that the Department’s policy manual was available on its internal website and that Employee assumed responsibility to familiarize herself with and comply with the policies therein, which prohibited use of Department equipment in a manner that is harassing, embarrassing, indecent, profane, obscene, or intimidating to other personnel or members of the public; limiting use of equipment for official use; limiting personal electronic communications at work to matters that are urgent or extremely difficult or impractical to schedule outside of work hours; and providing that employees who engage in the unauthorized use of Department equipment may receive disciplinary action, up to and including termination.

The Department’s computer login procedure included a daily reminder that the computer system exists for the purpose of conducting State business and is subject to monitoring.  Users must also acknowledge this warning and consent to monitoring by clicking “OK” in order to log on to their computers.

In October 2010, the Department was served with a warrant authorizing law enforcement to seize the computers of Employee and two co-workers in connection with an investigation into criminal harassment charges filed by a citizen. The investigation showed that days after the Employee acknowledged for the second time in the last six months that she was responsible for familiarizing herself with the e-mail policy she exchanged 33 personal messages by email with her co- workers for non-related work items connected to the investigation using the Department computer during work hours.

The Employee was terminated for sending inappropriate personal emails from her workstation. The decision to terminate was affirmed by the Court of Appeals. The Court rejected the defense of “everyone else is doing it” and the notion that the Missouri Employment Security law “…was intended to reward an employee’s voluntary and perpetual ignorance of employer policies by the willful violation of those policies.”

For public employers who are fed up with the defense of  “I did not know” or “Everyone else is doing it” this is a great case. The login procedure created a fail safe procedure to assure that these defenses were made up.

Howard Wright 2012

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