NYC Employee Fired For Surfing The Web, Despite Judge Disagreeing

from the what-do-judges-know-anyway? dept

Mon, May 8th 2006 2:34am — Mike Masnick

Last month, a judge in New York City recognized what plenty of studies have shown over the years: personal surfing at work is no big deal. It's often used as a mental break that lets people be even more productive when they are working, and with the work/life boundaries shifting in an age of always-on connectivity, people who do personal surfing at work, often more than make it up by doing work on their personal time as well. In the case in NYC, the judge noted some of this in saying that a city employee shouldn't be fired for personal surfing. It appears that the judge was just making a recommendation -- and it's one that was not followed. The Department of Education has apparently decided to fire the guy anyway, saying that it's an "appropriate" response, and that the guy's personal surfing proved he wasn't very interested in the job anyway. Do they say the same thing about people who take coffee breaks?

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49 Comments

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Vasco DaGameboy, 8 May 2006 @ 3:48am

It's all relative
It depends on how much and how often the guy was surfing and where he was going. If he was reading headlines over lunch, then it's ridiculous. If he was spending 6 hours a day playing sudoku and studying porn, then there's a bigger issue.
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XoRd, 8 May 2006 @ 4:24am

Relative my ASS!!
If the guy was performing his duties and he still had time to surf the Porn sites (since the company didn't block them) I don't see where the problem is and why to fire him??!?!?!?

If his performnce was not productive he should go no matter if he surfed the web or had coffe breakes!

It's all about being able to perform as required and not what you do with your spare time or your 5 minute mental break!!
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- Anonymous Coward, 8 May 2006 @ 5:02am
  
  Re: Relative my ASS!!
  Coffe Breakes? Is this something that your car does when it gets tired of sllowing down?
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- Mike, 8 May 2006 @ 5:07am
  
  Re: Relative my ASS!!
  XoRd,
  
  I'm sure it was an exaggeration, but if the guy was spending 6 hours a day surfing the web, I doubt he was still performing his duties.
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- DittoBox, 8 May 2006 @ 9:43am
  
  Re: Relative my ASS!!
  That depends on whether he's hourly or salaried. If he's hourly and he spends 6 hours a day, but can get his work done in the other two hours (provided this is a 9 to 5 job) he's got in his day, then he's being a) overpaid and b) under worked.
  
  If he's salaried, he's just under worked and needs more to do.
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elaine, 8 May 2006 @ 4:47am

Just because he was caught surfing the net for personal matters, a company could fire him instantly. The company must still consider the employee's work performance as well as his contribution in the company. The bottom line is, the company acted on pure instinct without even considering other factors.
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Anonymous Bum, 8 May 2006 @ 4:49am

At will State.
As an employer I enjoy owning a business in Indiana. Indiana is an 'at will' state meaning I can fire you "at will" for any reason I want. This is a fundamental right. This isn't France you know.
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- Comboman, 8 May 2006 @ 5:05am
  
  Re: At will State.
  As an employer I enjoy owning a business in Indiana. Indiana is an 'at will' state meaning I can fire you "at will" for any reason I want.
  Please tell us the name of your business. America is an 'at will' country meaning I can chose to do business with you or not 'at will' for any reason I want. Lack of respect for your employees is a good reason not to do business with you. This isn't France you know.
  [ link to this | view in chronology ]
  - SmartGuy, 8 May 2006 @ 5:17am
    
    Re: Re: At will State.
    Are you sure about that'at will'?
    
    You might want to look into what that means... Or you could have a lawsuit on your hands that would terminate your business just as quick as you term one of your employees for no reason.
    
    Jerks like you make employees hate working! I'm sure you have tons of happy emps and customers?
    
    Yeah right
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    - Anonymous Coward, 8 May 2006 @ 9:50am
      
      Re: Re: Re: At will State.
      [ link to this | view in chronology ]
    - MES, 8 May 2006 @ 9:52am
      
      Re: Re: Re: At will State.
      Legally speaking at will means that you can fire any person at any time for any reason other than one based upon racial, ethnic, gender or age considerations.
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  - Tony, 8 May 2006 @ 5:56am
    
    Re: Re: At will State.
    Minnesota is also an 'at will' state, again as comboman states, means that the company I work for can terminate my employment, for little or no reason. Likewise, I may terminate my employment (i.e. quit) any time I want for no reason or notice. The drawback to doing so is the potential forfeiture of any accured vacation time, according to company policy.
    
    I'm not a business owner, but I believe that they should have this right. Nobody is guaranteed or has a right to a job.
    
    HOWEVER, said business owner would be mistaken to make this a regular practice. It makes for bad morale and the remaining 'good' employees will probably leave. To make it worse, word will spread and potential new employees will think twice about wanting to work there and then there is the potential of a custormer boycott. Big downside for very little upside, if used frequently or 'improperly'.
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    - |333173|3|_||3, 8 May 2006 @ 5:22pm
      
      Re: Re: Re: At will State.
      The employee should have certain fundamental rights to job security, like they can be made redundant but not just fired because the boss does not like you (Which can now happen in Australia). A manager should not be allowed to just get rid of one employee without reason, and replace him (stuff gender-equal language, I cannot be bothered to type all that in) with someone elso on a lower wage doing the same work. Here in Australia one compant tried to fire a large number of workers, and then re-employ them on a new, lower-paid contract, but the courts told them where to go.
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  - Jim Ahlstrand, 8 May 2006 @ 9:51am
    
    Re: Re: At will State.
    Oh my God! - You so told this guy!! I was thinking the same thing when I read his comment.
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- anonymous, 8 May 2006 @ 6:21am
  
  Re: At will State.
  Yes, this is true. I live in new York which is also an "At will State". And with employers like you, people (I just did this) leave employers "At Will" and with less than two weeks notice and with lots of information stored only in my databank (brain). Employers must realize that this works both ways and if you treat your employees poorly, they will leave in a flash given the opportunity.
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- Saint Jerome, 8 May 2006 @ 6:34am
  
  Re: At will State.
  "As an employer I enjoy owning a business in Indiana. Indiana is an 'at will' state meaning I can fire you "at will" for any reason I want. This is a fundamental right."
  
  You need to look up the definition of fundamental right. At-will employment is in no way a "fundamental right".
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- Vasco DaGameboy, 8 May 2006 @ 7:06am
  
  Re: At will State.
  I live in an at will state as well, and you are right except that you cannot fire people for Constitutionally protected reasons (race, sex, color, national origin, etc.). Other than that, you can fire an employee if he has bad breath or you don't like the kind of gum she chews.
  
  There's probably more here than we're being told, because even if New York is an at will state (I'm not sure), they still need to formulate a plausible reason for the termination, mainly for PR reasons. No one wants the word to get out that they're firing on a whim, because everyone will steer clear of the place. My guess is that the guy is a less than desirable and his supervisor was using the web surfing angle as a cover for the nastier (and harder to quantify) reason of lack of performance.
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- SpencerGrant1968, 8 May 2006 @ 7:17am
  
  Re: At will State.
  As an employer I enjoy owning a business in Indiana.
  
  Indiana is an 'at will' state meaning I can fire you "at will" for any reason I want.
  
  WRONG!!! Try firing an employee for being Black or for being a Woman.
  You cant fire anyone for ANY REASON you want.
  
  This is a fundamental right.
  
  WRONG AGAIN. A Fundamental Right is a Right that none can take away. At Will Employment is a state law or policy>Laws and policies cam change in no time flat.
  
  This isn't France you know.
  
  Your right this is America a country founded by people who generally dont get along with power hungry tyrants.
  
  Judging from your post I have serious doubts if you actually own a bussiness. And if you do i doubt its very successfull.
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  - Anonymous Coward, 8 May 2006 @ 8:47am
    
    Re: Re: At will State.
    if you fired me for personal surfing while I was fulfilling my duteis, which one of my old employers tried to do, you would end up owing me a lot of money just like them. It didn't matter that it was against company policy, I dragged them into court and proved that what I did in no way hurt the company and had all kinds of testimony to back me up. I was one of those people who stayed extra hours for no pay. Now, they pay me for doing nothing. Why don't you go fire some people and see how it goes?
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  - Nilt, 8 May 2006 @ 8:48am
    
    Let's clear up some confusion
    WRONG!!! Try firing an employee for being Black or for being a Woman. You cant fire anyone for ANY REASON you want.
    
    Well, that's somewhat of a mistaken view. You couldn't put that down as a reason on the paperwork and be exempt from a lawsuit in most cases. You could, however, put "No Cause" and be fine. At will employment essentially means the employer doesn't have to have "cause" to terminate your employment.
    
    This is as opposed to states where they do need cause such as proof you're stealing, a certain number of writeups for tardiness, etc. It's really these states which made large companies start employment guidelines anyhow. Either follow the guidelines or it's considered cause to terminate. By working thereyou agree to the terms.
    
    As for Vasco DaGameboy, these things actually are not constitutionally protected. They're part of the Civil Rights Act and a few others. See here for a bit better breakdown. This is not a minor nitpick, by the way. These protections could in theory be revoked at any time. Another less wel known thing about them is employers with under 15 (IIRC) employees are exempt from some of the protections.
    
    Employment law is a very confusing area. If people want to protect their rights they should know what they are. While I wouldn't do it and condider such behavior pure evil, as a small business owner with under 15 employees I could fire someone for being a woman or for being a different color than I and not be in violation of the federal guidelines. State guidelines may kick in but those are so varied I won't bother speaking to them. I just wanted to point out that the federal protections aren't ascomplete as many believe.
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    - Wendell, 8 May 2006 @ 10:40am
      
      Re: Let's clear up some confusion
      "...these things actually are not constitutionally protected. They're part of the Civil Rights Act and a few others. This is not a minor nitpick, by the way. These protections could in theory be revoked at any time...."
      So could the constition. The perception that the constition is an unchangeable document and that Acts and amendments are changeable is false.
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      - Nilt, 10 May 2006 @ 2:07pm
        
        Re: Re: Let's clear up some confusion
        "...these things actually are not constitutionally protected. They're part of the Civil Rights Act and a few others. This is not a minor nitpick, by the way. These protections could in theory be revoked at any time...." So could the constition. The perception that the constition is an unchangeable document and that Acts and amendments are changeable is false.
        
        Correct, to a degree. The constitution istelf cannot be changed shy of a major undertaking. This Wikipedia article has a decent description of what would be required to change the constitution. My point was it's not as easy as Congress repealing other laws, nor should it be.
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j1mmyd, 8 May 2006 @ 5:08am

Re: Relative my ass...
First, I'm a big advocate of reasonable flexibility for the "24-hour employee". If you can call me or expect me to answer email at night or on weekends, then expect also that I may jump on a newsw or travel site on a break. The other side of the porn issue is the liability it puts on the company/agency when one employee observes, and is offended by, the "inappropriate use" of another. If they fail to take action, they could open themselves up to civil legal action ($$$).
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TriZz, 8 May 2006 @ 5:08am

Policies
Despite what we all believe to be true - if a company's employment policy states that you can't use the internet for personal browsing - then you're fucked.

...either abide by the policies set down, or suffer the consequences.

Don't get me wrong - I think it's a shitty policy to not let employees browse at work (in moderation) but - every house has their rules.
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Mike, 8 May 2006 @ 5:09am

If you work at all, you know that if you build strong relationships in the workplace and are good at your job, they won't be firing you for surfing the web every once in a while. I'm sure they were looking for a reason to get rid of this guy anyway.
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- R, 13 Jun 2006 @ 7:54am
  
  Re:
  That REALLY depends on where you work. If you work for a large municipality, like I do, it doesn't make any difference how great your work quality is because Personnel has virtually no contact with your direct supervisors. Decisions can be made on a technicality, even if you're a great employee.
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Anonymous Coward, 8 May 2006 @ 5:40am

At will employment is a good thing - companies aren't going to just go firing their better employees. If they do, they'll be out of business soon enough anyway - that's the wonderful part of free market. If the employees suck too much - fire them, if the company sucks too much, it'll die.

When you have stupid laws requiring companies to hire people etc - they turn into bureaucracies... Take a lot of these big union companies for instance (the airlines, american automakers) they are the least profitable companies out there anymore - why? because they are required to keep some of the 'dead weight' employees around even if they are worthless. As long as you are a good worker and get your job done - it's non-issue. So if company A fires you - go work at company B - they can benefit then.

Problem with most Government workers - at any level - is that they are more "High End Welfare Recipients" - many of them anyway. I worked in government and found two types of workers:

1. Excellent Professionals - the best in their field and they work hard

2. High-End Welfare recipients - they compain and whine about everything, sleep in their offices, and get nothing done - the second you fire them, they sue because they are too lazy to find another job that will actually make them work some.
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Anonymous Coward, 8 May 2006 @ 5:49am

Ha! Right!
As soon as they stop calling me at night with so-called "emergencies", I'll stop checking Techdirt while reading my morning coffee. Fair enough?
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- Anonymous Coward, 8 May 2006 @ 5:58am
  
  Re: Ha! Right!
  reading your morning coffee? wtf? ;)
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  - Anonymous Coward, 8 May 2006 @ 9:27am
    
    Re: Re: Ha! Right!
    Reading my morning coffee... yeah, I typed that. Do I need to say more?
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eeyore, 8 May 2006 @ 6:17am

I got bitched out by my boss for surfing the internet one time. I pointed out to him that the coworker who shared my office with me took 10-12 smoke breaks every day and averaged a good 10-15 minutes per break. (considering that it took at least five minutes just to get to the smoking area) Since I didn't smoke I didn't see any problem with spending a few minutes every few hours checking CNN or the local news sites. I never heard another word about it but I did notice him keeping tabs on our smokers after that.
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Jay, 8 May 2006 @ 6:29am

Amazing
I am always amazed at how people feel they have the right to do whatever they want while at work. People are hired for a certain reason and that’s to do a specific job. If a company tells you that you do not have the right to surf the net while at work then you do not have that right. Think about it this way, you are using their computer and there high speed connection that they pay for. This alone gives them the right to tell you what you can and can’t do with it.

It’s a lot like people coming to work and installing their own programs on the computer, its not yours in the first place so you have no right doing something like that.

I do understand the argument of doing this while on a lunch break and I feel that it is perfectly ok to do that as long as the company has given that approval. The company should also have better security and block out a lot of the things they don’t want employers doing such as web mail and other sites.
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Oz, 8 May 2006 @ 7:06am

Some things...
Just some things to think about.

The guy worked for the NYC department of education. I can't speak for NYC but I can speak for the Indiana DOE (I worked in education for the last 8 years). If we were to fire employees for personal web surfing during business hours, we would have no teachers, administrators, custodians, or anyone else working in our schools. I've literally seen teachers give their students and assignment and then go shopping on eBay or play poker online while the students try to figure things out. Now don't get me wrong, I'm not one of those "poor little students" types. Much of the knowledge that I continue to retain, is stuff that I had to figure out myself. Sometimes kids need to figure some things out on their own, but they also need guidance on certain things. When these students had questions, it was like it was an inconvenience for the teacher to take time out of his/her web surfing to go and help the students.
If I had to make a guess, I would say that education employees (at least in Indiana) spend roughly 30% - 40% of their work day doing personal web surfing. I have the helpdesk logs and phone call logs to back this up, calls like "I can't get my eBay account to work" and "I'm having problems playing my online poker game, can you help?".

If you're going to punish one, punish them all. If you're going to pick and choose which ones to punish, be prepared for a lawsuit.

Granted, you might say that this info only applies to the district I worked in, but I know from converstaions I had with other tech people, this problem was happening at every school corp in Indiana.
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Think About it, 8 May 2006 @ 7:08am

Bloomberg
This thing is not really about some meaningless NYC employee, it is about Bloomberg being a demagogue... remember when this story first broke? Wasn't Bloomy so mad at the Judge for his ruling? NYC is a rotten apple and Bloom is at the core my techie friends!
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Think About it, 8 May 2006 @ 7:08am

Bloomberg
This thing is not really about some meaningless NYC employee, it is about Bloomberg being a demagogue... remember when this story first broke? Wasn't Bloomy so mad at the Judge for his ruling? NYC is a rotten apple and Bloom is at the core my techie friends!
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Think About it, 8 May 2006 @ 7:08am

Bloomberg
This thing is not really about some meaningless NYC employee, it is about Bloomberg being a demagogue... remember when this story first broke? Wasn't Bloomy so mad at the Judge for his ruling? NYC is a rotten apple and Bloom is at the core my techie friends!
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ElectricMahem, 8 May 2006 @ 7:15am

NYC Employee Fired For Surfing
When will you humans realise that you are subservient to the job, the state and your country? Resistance is futile! if you accept the $ € £ Y from 'the man' then you are his 24/7...he owns you body and soul.....

drink more than he feels good for you...you get fired...
have sexual prolectivities that are outside his norm....you get fired
smoke and 'endanger' your health....you get fired
have freedom of thought/expression that sits outside his narrow range of issues...you get fired...
take part in activities that are outside his own....you get fired...

Bow down and accept the inevitable......it is easier...be servile.....

or what?.......how will you stop this creeping homoginisation of your species eh....you are on the slippery slope and will conform....won't you...

Resistance is futile.....the age of the machine is here..........!
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herb-819425, 8 May 2006 @ 8:03am

who cares?
If you have to restrict your employees to not surf the internet so that they can be more productive during work, doesn't that mean that they are a worthless employee anyways?

I always assumed that the good employees work hard, not because they were told to, but simply because they want to (unless you have no spine and are a complete bitch)

If an employer needs to tell an employee what he can or cannot do, doesn't that mean the employer has little to no faith in the employee anyways? (unless the employer is an insecure, ego-maniac and a complete bitch)

So, don't be a bitch or don't work for a bitch and everything will work out fine
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Anonymous Bum, 8 May 2006 @ 8:20am

AT WILL
"As an employer I enjoy owning a business in Indiana. Indiana is an 'at will' state meaning I can fire you "at will" for any reason I want. This is a fundamental right. This isn't France you know."

Wow. Hit a nerve I guess.

It is amazing that people assumed that I just love firing people. I believe "at will states" grow a better work force because it creates an even playing field for both employers and employees. Both know they are expendable unless good relationships are built. As for firing black, hispanic, woman, or gay persons.... easy. It is called a paper trail.
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Mike, 8 May 2006 @ 8:58am

Solitaire
I thought he got fired for playing solitaire?
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Chief Elf (profile), 8 May 2006 @ 9:13am

Consistency
I've got no problem with NYC firing someone for personal web surfing during business hours. As long as they fire everyone who does so. Let's see, that would be... every NYC employee with access to a computer at work... including the Mayor.
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NYC board of ED made me stoopit, 8 May 2006 @ 9:18am

Internet surfing was just icing on the cake. Odds are this guy had years of crappy work to show for his dismissal. As a former student of the NYC Board of ED it doesn't surprise me that this guy was more of a douche than a teacher. If this guy was a teacher and the thugs that call themselves the teachers union didn't back him up, he definitely deserved to be fired.
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Pimpy Looka, 8 May 2006 @ 10:42am

Surfing Porn at work
It's NOT illegal to view porn at work (in MA), nor can you get fired for it, unless someone sees it and is offended by it and you do it again. That's the law....but I wouldn't bet your job on it and I highly doubt you'll find a sympathetic employer or judge to help you out.
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ain't superstitious, 8 May 2006 @ 11:26am

The old saying "Give some people enough rope and they will hang themselves..." comes to mind.

Did anyone think that these companies might be giving access to folks so they can see who works and who doesn't, or to have ammo in case they want to get rid of someone?

I worked for SBC a few years back and I was told by a very close friend who was a Sr. HR manager that they give the access but then they logged when, how long and where you surfed. They then saved this information to use against you if any manager decided they needed to correct you or start the firing process. In fact, I personally saw more than 15 people get the axe behind this. They started doing it because it was so hard to fire someone who had been there for 20 years because the union (CWA) would give them such resistance. This goes back to what the previous poster said about deadbeats with seniority.

I doubt SBC (now AT&T) isn't the only one out there doing this...and I wouldn't be surprised if this type of monitoring was the Corporate Amerika norm.

Play (or surf) at your own risk, folks.
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Republican Gun, 8 May 2006 @ 1:13pm

Counterstrike server
I hope my boss doesn't find my Counter Strike Server that I accept donations for. I could get canned!
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|333173|3|_||3, 8 May 2006 @ 5:53pm

Do your work, don't do any damge
then you should be left alone to do whatever you like. Of course, if you are playing games over the network and chewing up all the bandwidth then you can expect to get stomped on by a more or less subtle Admin, but you should not get fired if you do what you get aid for. If you are an hourly-paid person, then if the boss sees that you don't work for more than an hour per day, then you would expect to get less hours of work. If you are salaried, then your boss is an idiot and derves the trouble he gets from his higher-ups for wasting departmental buget on em[ployees who don't work.
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Anonymous Coward, 9 May 2006 @ 4:43pm

r3v3n63 0f D@ f15h
the f15h are here!
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DEEZ NUTS, 19 May 2006 @ 11:16pm

FIRED EMPLOYEE
I THINK THEY SHOULD HAVE SPANKED HIM ON HIS FUCKING HAND ....DO NOT THE ANYMORE
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kc in los angeles, 29 Jan 2007 @ 2:00pm

Help
I have an employee I just hired, he has had the job for less than a week. He doesnt do half the work he was hired to do. He spends at least two hours a day or more surfing web sites. I like the guy but I need the work done. I have asked him more than once to get the job done. I don't care what he surfs, I just care about the work. Keep or dismiss????
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