Since the beginning of the Covid-19 pandemic, employers have been encouraged to allow employees to work from home, if possible, in order to stem the spread of Coronavirus to co-workers. Despite the re-opening of the country, the guidance is still for employers to allow work from home for employees who can reasonably do so (especially with recent spikes in positive results nationwide). In most modern workplaces, remote work means employees must have access to a computer. But with the need for employees to work from home, and sometimes take on additional responsibilities while there (such as parenting and teaching), how can an employer be sure that the work an employee is being paid for is actually being done?
In Michael Anderson and Metropolitan Council, the employer attempted to terminate a veteran after it determined the employee spent an average of 2.85 hours per shift watching videos, surfing the internet, and taking long lunch breaks, over the course of 22.5 shifts. In total, the employer concluded that the employee spent more than 64 hours not working over the period of time he was investigated. On top of this, when asked about what he was doing with his time, the veteran lied to an investigator about helping a van unload when he was actually loafing on the job. The employer had detailed notes from video of the veteran on non-work-relate websites while he was supposed to be working.
However, the arbitrator made a determination that the documentation of minutes wasted was not as accurate as possible, and while the veteran was seen wasting time while in his work area, it could not be substantiated exactly how much time the employee had wasted during the period of time he was observed. On top of this, while the employer had hundreds of pages of internet history documenting the non-work-related websites the employee perused while he was supposed to be working, the internet history did not provide the exact periods of time the employee spent at each website, leading the arbitrator to describe the documents as “useless.”
In the end, as it was a Veteran’s Preference hearing, the arbitrator found extenuating circumstances from both the evidence presented and the veteran’s familial and health issues, which, as Arbitrator Joe Daly put it, “would test the patience of Job.” The arbitrator returned the veteran to his job, minus a 30-hour “repayment” to the employer over a period of six months.
So what can employers learn from this award, especially when many of their employees are working off-site on their computers every day? First, in a computer misuse case, the form of internet history or video evidence must include definitive proof of exactly how long and when the employee was misusing the computer. If this isn’t done, the employee may be able to explain away his or her usage of the computer as break time. This can be difficult, as a simple “ghosting” of an employee’s computer can only tell what an employee has viewed, and not the important details needed to prove time theft.
Second, it is incredibly helpful for an employer to gain affirmation by the employee that he or she was not doing what he or she was supposed to while being paid. Many times, during arbitrations, employees are given the benefit of the doubt, especially during the termination of a veteran. Statements made by the employee against his or her own interest prior to the arbitration hearing are worth their weight in gold.
This was a tough decision against the employer, who had mountains of evidence against the employee, but in the eyes of the arbitrator, still did not have enough to remove an employee who essentially was using his paid time to play on the internet. We put a lot of faith in our employees who are working from home to be getting the job that they are paid to do, done. If you, or your organization are in need of investigative services, or assistance putting on your next arbitration or veteran’s preference hearing, contact the Wiley Law Office, for workplace discipline experience that works.