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Commentary: Constantly surfing the web at work? Surprise! You’re fired!

This should probably go without saying, but spending one’s entire workday on the internet can lead to termination. Shocking, no? But this news apparently came as a surprise to a water department employee who was fired after his bosses found he had spent hours upon end checking personal email, searching Craigslist, watching old TV shows, chatting with his mistress and perusing sexually explicit websites during the workday. A court recently rejected his wrongful termination lawsuit in a scathing opinion that can offer lessons to employers and employees alike.

Carmine Federico began working as an administrative assistant to the superintendent of the Rowley (Massachusetts) Water Department in September 2013. In this job, Federico was responsible for providing administrative support to his direct supervisor, including answering phone calls, scheduling appointments and preparing meeting minutes. He held the job without incident for about a year, until a new superintendent, Marybeth Wiser, came aboard and the two soon clashed.

Within a few weeks of Wiser’s arrival, she noticed Federico’s job performance was below expectations. She met with him one-on-one to refocus his work responsibilities, and followed up with a memo directing him to limit personal telephone calls at work, refrain from taking work home, and ensure meeting minutes were drafted the day after each meeting.

Only 10 days later, Wiser determined Federico did not take her warning to heart. By then, he had failed to complete six sets of meeting minutes, and it appeared he was still taking work home with him despite her clear admonition to the contrary. She directed him to work on the meeting minutes project at once. The next day, when it appeared he had made no progress, Wiser called for another meeting with Federico, this time inviting a union representative and the assistant town administrator to attend as well. Wiser took Federico to task for failing to complete meeting minutes as directed and for continuing to take work home with him. She asked him to produce drafts of the missing meeting minutes, and he claimed someone must have accessed his computer and deleted them. He then claimed to be sick and went home, and within a few days sought to take protected Family and Medical Leave Act leave for his absence.

Wiser needed the meeting minutes, so she directed staff to search Federico’s computer to see if they could find anything useful. Instead, they found a treasure trove of evidence revealing that Federico spent an enormous amount of time during work hours viewing websites, message boards, videos, and personal email not related to work. On the day he was supposed to complete the meeting minutes, for example, he watched 10 episodes of the TV show “Hogan’s Heroes,” viewed dozens of ads for escort services and other sexually explicit websites, searched for another job, and chatted with a woman with whom he was having an extramarital affair. When his employer printed out Federico’s internet browsing history for the most recent three-month period to prove the extent of his personal use, it took up 642 pages of single-spaced text.

Federico did not immediately return to work; he claimed to suffer anxiety, depression and panic attacks. The employer waited until Federico’s 12 weeks of FMLA leave had expired, and then terminated his employment for neglect of duty, conduct unbecoming an employee and insubordination after an investigation. Federico filed a lawsuit against the town for wrongful termination, alleging FMLA retaliation among other things. A federal judge recently rejected his claim and dismissed the lawsuit, criticizing Federico for his conduct in a detailed 20-page opinion. The judge devoted ample time describing Federico’s online misdeeds in detail, concluding that there was “overwhelming evidence — none of which is controverted — that Federico spent virtually all day, every day watching television and viewing sexual services advertisements instead of performing his work.”

The lesson for employees is fairly simple: Do your job and don’t spent all day surfing the internet. To the extent you believe you need to conduct personal business online using work computers during work hours, confirm with your supervisor what is acceptable and what is out of bounds.

For employers, this case serves as a good reminder about the proper way to conduct a termination for internet abuse. The employer had an express policy in its handbook providing rules for internet usage, which it relied upon when conducting its investigation and implementing the discipline. The manager had a performance meeting with the employee, laid out her expectations in detail and documented the meeting with a communication to the worker. When the worker failed to meet those expectations, she elevated the meeting to the next level to investigate further. These actions demonstrate that the reasonable expectations of the employer were explained to the employee, and he could not later claim ignorance.

Once the employer suspected wrongdoing, it limited its search to workplace computers and did not expand the investigation to personal smartphones or other devices. Presumably, the employer could also demonstrate that it applied its policy in a consistent manner, as there was no evidence raised by the worker that he was singled out for punishment while others similarly wasted time online.

Finally, the employer provided ample time to conduct its investigation and did not permit the employee’s FMLA claim to become a distraction. Although the employee tried to blame the termination on his medical condition, the employer’s savvy response to his activity led to a clean courtroom victory. While it may seem obvious that any employer would win a case like this one, many land mines could trip up an employer in any termination situation; smart employers (and employees) will learn from this case.

Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8044 or [email protected], or follow him on Twitter – @pdxLaborLawyer.