• Viewing Pornography at Work Isn’t Always a Terminable Offense
  • December 17, 2010 | Authors: Karen G. Schanfield; Teresa M. Thompson
  • Law Firm: Fredrikson & Byron, P.A. - Minneapolis Office
  • Controlling and monitoring employee access to and use of workplace technology have become priorities for employers in recent years. Having adopted electronic communications policies, many employers now seek to update their policies to keep pace with rapid changes in technology, greater reliance on the Internet, and ever-increasing use of social media.

    Electronic use policies commonly prohibit employees from viewing offensive materials, including pornography, at work and on work computers. It would seem that violation of this prohibition would provide a sound basis for terminating an employee. However, a recent federal court decision underscores the importance of careful compliance with collective bargaining agreements when unionized employers implement, amend, and seek to enforce electronic use policies. Non-union employers should heed this decision as an indication of the scrutiny that electronic use and social media policies may face. All employers should carefully review and, if necessary, revise these policies to ensure that employees are on notice of their contents and that the policies are effective in controlling the use of company resources.

    In Mirant Canal, LLC v. Local Union 369, Utility Workers Union of America, 2010 WL 2900435 (D. Mass. July 10, 2010), the Massachusetts federal district court refused to overturn an arbitrator’s decision that reinstated two workers who had been fired for viewing pornography during work hours at work on a work computer. The decision was based on the arbitrator’s determination that the conduct was bad, but not bad enough to warrant termination.

    The collective bargaining agreement (CBA) between the parties contained a “Management Rights” provision that allowed the Company to establish rules relating to “Company issued equipment ... together with disciplinary penalties for enforcement.” While the Company had the exclusive right to implement and change such policies, the CBA also required the Company to post such rules on the Company bulletin board and send them to the Union seven days prior to implementation.

    The Company had several relevant policies, including:

    •A 2005 Electronic Communications Policy limiting employee use of the Company’s computer equipment for personal or inappropriate use;
    •A 2006 Workplace Free of Harassment Policy prohibiting the display of “visual material such as posters, cartoons, calendars, or pictures of a sexual nature or depicting partially clad or nude individuals,” violation of which subjected the individual to appropriate disciplinary action, up to and including termination;
    •A 2006 Workplace Standards of Conduct Policy providing that “excessive or improper use of the Company’s electronic equipment, including Internet access,” could result in termination; and
    •A 2007 Electronic Communications Policy (ECP) prohibiting use of the Company’s communications resources for “foul, offensive or pornographic messages, communications or material.” Examples of behavior that could result in disciplinary action under the ECP included misuse of email or Internet access, or downloading or distributing pornographic materials.

    There was no question that the first three policies were properly provided to the Union prior to implementation. However, when the Company implemented the 2007 ECP, it notified employees by placing a poster, entitled, “What you need to know about Mirant’s Electronic Communications Policy,” on all Company bulletin boards and other locations throughout the facility. This poster stated, among other things:

    •Mirant’s policy bars use of its systems for creating, viewing, receiving, or distributing sexually explicit materials or materials such as jokes, stories, cartoons, photos, movies, videos, recordings, or similar materials that may be offensive on the basis of race, sex, religion, national origin, age, or sexual orientation.
    •Mirant will continue to enforce its Electronic Communications Policy, Workplace Free of Harassment Policy, and Workplace Standards of Conduct Policy through disciplinary action, up to and including termination of employment. Mirant has terminated employees for disregarding these policies.

    The Company did not provide a copy of the policy to the Union prior to implementation. A Company operations manager subsequently observed three employees viewing sexually explicit materials on a Company computer. When the Company investigated the employees’ Internet use, it found that two of the employees had visited pornographic sites multiple times. The Company terminated these employees for violation of the ECP as well as its Workplace Standards Policy and Workplace Free of Harassment Policy. Since the Company’s investigation revealed that the third employee had not accessed pornographic sites previously, he was given a “supplemental reminder.”

    The Union filed a grievance on behalf of all three employees, arguing that the Company lacked just cause to terminate or discipline them. The arbitrator concluded that although the two terminated employees had engaged in misconduct by repeatedly accessing, viewing, and emailing pornographic materials at work in violation of Company policies, their conduct was not so severe as to warrant termination. As to the employee who had “merely” viewed the pornography once, the arbitrator concluded that he should not have been disciplined at all.

    Although the arbitrator determined that the Company could, and in fact did, prohibit sexually explicit materials in the workplace, he concluded that since the two terminated employees were long-term employees in good standing, their conduct was not so serious that it warranted termination where there was no evidence of harassment or other “magnifying conduct.” The terminations were reduced to one-day suspensions and the employees were reinstated with back pay.

    The Company appealed the decision, and the court refused to overturn the Arbitrator’s Award, finding that, among other things, termination was not identified as the sole or mandated discipline in response to a violation of the Company’s policy. The Mirant Canal case is a good example of the extremes to which arbitrators sometimes go to ensure that employees maintain their jobs and the reluctance of courts to overturn arbitrators’ decisions. This is true whether the arbitration is mandated by a collective bargaining agreement or by an employer’s requirement that workplace disputes be submitted to arbitration.

    Takeaway

    Employers should:

    1.Make sure that employees are on notice of all policies and the consequences of a violation;
    2.Be able to prove that employees are on notice by requiring employees to sign a document acknowledging receipt of the policy whenever it is revised;
    3.Carefully comply with the requirements of all CBAs and employee handbooks when implementing or amending workplace policies; and
    4.Be sure that all employment policies, including those related to electronic communications, make it crystal clear that employees can and will be terminated for violations of the policies.