The Unemployment Insurance Appeal Board thereafter determined that employee's actions had not risen to the level of disqualifying misconduct because the Internet use was unintentional, and awarded him unemployment insurance benefits. The employer appealed. Vivianna Schwoerer, a Law Clerk at our firm, was assigned to assist on the appeal and spent many hours researching the issues and writing a spectacular Brief that carried the day at the Third Department up in Albany.
The Appellate Division noted that the employee never intentionally engaged in personal Internet use on his work computer, and that much of the usage was actually for work purposes, and that the remainder resulted from pop-ups beyond his control or the use of his computer by others. The employee admitted to using his smartphone for personal Internet access when away from the office, but stated that he was unaware that such was prohibited. All benefits were reinstated.
The case is Osborne v. Andrea Bunis Management, Inc., (3d Department Jan. 24, 2013).