STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CORIE N HARRISON, Employee

KICKHAEFER MFG CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12601158MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the majority agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed August 24, 2012
harrico . usd : 190/102 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer petitioned the adverse appeal tribunal decision which held that the employee's discharge was not for misconduct connected with his employment. In its petition for commission review, the employer asserts that the employee's conduct on October 12, 2011, demonstrated an intentional and substantial disregard of the employer's interests. The majority has carefully reviewed the record and disagrees.

The employee worked as a metal fabricator for three years as a lead person for the employer, Kickhaefer Manufacturing Co. The employee used his cell phone to post comments on his personal Facebook page at approximately 8:00 p.m. and 9:00 p.m. on October 12, 2011, during his work shift.(1) He was discharged on October 17, 2011.

The first relevant comment posted by the employee at approximately 8:00 p.m., was, "My 'boss' said his 'boss' was questioning my production and said I don't do enough. Who did they blow to get their jobs?" One of the employee's friends "liked" this comment. The next post was, "Stay tuned. Having a bad day. Tonight should be interesting." Another friend commented, "That always makes for great posts. Lol" in response to the employee's post. The employee responded, "You read my mind. Im normally funnier when Im pissed. You know!" The friend responded, "Oh I already kno." The employee then posted, "Wanted to go back to school but needed motivation. I think giving someone a reason to stay and to get out of this mexican infested shit hole company is all the motivation I need!"

On the employee's Facebook wall, his biographical information included that he was a "Plant Lead at KMC Stampings,"(2) "Went to Cudahy High," "Lives in South Milwaukee, Wisconsin," "From Milwaukee, Wisconsin," and was "Born on April 4." There is no evidence in the record as to how many Facebook friends the employee had at the time he posted the comments or the scope of the employee's audience for his posts.(3)

A co-worker who saw the posts brought them to the attention of the employer.(4) The employer terminated the employee for two reasons. First, the employee was terminated because the posts were made during work hours and violated the employer's cell phone use policy. Second, the employee was terminated because the posts asking "who did they blow to get their jobs?" and calling the workplace a "mexican infested shit hole company" violated the employer's harassment policy.

The first issue is whether the posting of any Facebook comments with a cell phone was done during work hours in violation of the employer's cell phone use policy and, if so, whether that violation constitutes misconduct connected with the employee's work. Misconduct connected with an employee's work is defined as:

conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. [M]ere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.

Wehr Steel Co. v. DILHR, 106 Wis.2d 111, 116, 315 N.W.2d 357, 360 (1982), (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1941)). The penalty for discharge for misconduct is severe. An employee found to have been discharged for misconduct is ineligible for unemployment benefits for seven weeks and until the employee earns 14 times the employee's weekly benefit rate in covered employment; in addition, any wages paid to the employee from the employer that terminates the employment of the employee for misconduct is excluded from the employee's base period wages. Wis. Stat. § 108.04(5). If the employee had no other wages from other employers in the employee's base period, the effect is that the employee is denied any unemployment benefits.

An employee is presumed eligible for unemployment insurance benefits. Wis. Stat. § 108.02(11); Kansas City Star Co., Flambeau Paper Co. Div. v. Department of Industry, Labor & Human Relations, 60 Wis. 2d 591, 602 (1973). A challenging employer has the burden to show disqualifying misconduct. A.O. Smith Corp. v. DILHR, 88 Wis.2d 262, 269, 276 N.W.2d 279, 283 (1979). The misconduct provision "will be given the construction which is least favorable to working a forfeiture, so as to minimize the penal character of the provision by excluding rather than including conduct or cases not clearly intended to be within the provision." Boynton Cab, supra.

The employer has a cell phone use policy that states that cell phones may be used only during break or meal periods or before or after the work shift. In addition, no cell phones are to be visible on the plant floor during work hours. The employee acknowledged that he received this policy. He received a verbal warning in August of 2011 that he needed to adhere to the cell phone use policy that no visible cell phones are allowed on the plant floor and to address employees that are not in compliance with the cell phone use policy.

The employer and employee dispute whether or not the employee posted the comments on October 11 while on a break. The administrative law judge found that the employee used his cell phone to post comments while not on a break and the majority sees no reason to disturb that finding.

The fact that the employee used his cell phone while not on a break is not dispositive in this case, however. The administrative law judge found that while the employee had received this warning, "he was not on a final warning and such use was not so egregious that it warranted discharge without a final written warning." The majority agrees. In fact, the employer's representative testified that if the employee had just been talking on his cell phone and had not made the specific comments that he did he probably would have received another warning and not been discharged. Therefore, though the employee had a previous warning about cell phone use, the evidence does not support a conclusion that the fact that the employee used his cell phone while not on a break in violation of the employer's cell phone use policy is conduct so egregious that it constitutes misconduct under the Boynton Cab standard.

The next issue is whether the employee's Facebook comments violated the employer's harassment policy and, if so, whether that violation constitutes misconduct connected with his work. The employer terminated the employee because he "made racial and sexual and hostile comments" toward the company and its employees on his Facebook page and because of their "volatile and offensive nature."

The employer's harassment policy states that the employer "will not tolerate any form of harassment including: insults, name calling, demeaning jokes, physical, verbal or psychological abuse based on an individual protected characteristic (gender, race, color, ethnicity, national origin, age, ancestry, disability, creed, sexual orientation, marital status, etc.)" The policy also provides that it applies "not only to the workplace during normal business hours, but also to all work-related social functions whether on or off the company premises, as well as business related travel."

The administrative law judge found that the comments at issue were undeniably offensive and were derisive of an ethnicity and possibly an individual's sexual orientation in general, and that a further Facebook comment made when the employee was likely no longer at work about Mexicans was "grossly inappropriate." The majority agrees. The thread of the posts suggests that the employee may have been trying to be funny, but to the majority, the comments were offensive and not humorous. The fact that the majority finds the comments offensive, however, does not settle the issue of whether the offensive comments violated the employer's harassment policy.

The administrative law judge noted that had the comments been made on the shop floor within earshot of fellow workers, they would have violated the employer's harassment policy. The majority agrees. However, that is not the situation in this case. In this case, the comments were made in a non-work forum. The comments were not posted to an employer's Facebook page, but to the employee's personal Facebook page. The employer's witness testified that, "If he had made the comments when he wasn't at work he possibly still would have been discharged. If the employee had made these comments in a bar and he was overheard by a colleague he possibly would have been discharged."

However, the administrative law judge found that had the employee made the two comments to a friend at a baseball game or in a bar and a colleague had overheard them it is unlikely that they would be found to be harassment. They were not made at work, not directed at any individual in particular, and not made intended to be heard by the employer or colleagues. The majority agrees and finds that the employer's harassment policy does not apply to comments made by employees to friends in non-work forums.

The commission has been consistent in holding that, except in those cases in which the alleged conduct is sufficiently egregious, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his or her job is in jeopardy or will be if he or she engages in the subject conduct.(5) Had the employer's harassment policy specifically applied to comments posted on personal social media sites, the policy may have adequately warned the employee that posting his comments on his Facebook page about the employer or co-workers may result in discipline or termination. The policy then may have been more readily applied to the actions of the employee in this case.(6) However, the majority declines to read the employer's harassment policy so broadly as to have warned the employee that his employment could be terminated for posting a comment on a social media site, such as a personal Facebook page, or to apply to the employee's conduct in such a non-work setting. No such language regarding social media is contained in the harassment policy and the employee was not alerted to the possibility of work discipline or termination for the post.(7) Therefore, the majority concludes that the employer failed to establish that the employee violated the employer's harassment policy when he posted the comments to his personal Facebook page.

Even if the employer had succeeded in showing that the employee violated the harassment policy, it failed to show that the employee's conduct rose to the level of misconduct. To sustain this burden, an employer would typically need to show that the harassing conduct was severe and pervasive, or, if a single act, unusually egregious. Brian J Smallcombe v. The Noodle Shop Co., UI Dec. Hearing No. 02608958MW (LIRC June 10, 2003), citing Braxton v. Research Products Corp., UI Hearing No. 9903077MD (LIRC Dec. 27, 1999) (a single offensive statement would typically not support a finding of misconduct). Such unusually egregious acts typically involve conduct such as physical touching in the sexual harassment context, or an actual or implicit threat (see, e.g., Bollman v. LIRC and Wisconsin Bell, Inc., (Waukesha Co. Cir. Ct., Dec. 13, 2002) (hanging a noose over an African-American employee's desk was threatening and, even though a single incident, rose to the level of misconduct).

The comments the employee posted on Facebook were offensive, and the employee is not a sympathetic person, but the majority cannot conclude that the employee's action in posting the comments to his Facebook page was sufficiently egregious that it showed an intentional and substantial disregard of the employer's interests. In Cheese v. Industrial Comm., 21 Wis. 2d 8, 14, 123 N.W.2d 553 (1963), the Supreme Court stated "... the crucial question is the employee's intent or attitude which attended his act or omission which is alleged to be disqualifying misconduct." The test is whether a reasonable person under the factual situation presented would have considered the employee's conduct to be a wilful interference with the employer's interests. Universal Foundry Co. v. ILHR Department, 86 Wis. 2d 582, 591-92, 273 N.W.2d 324 (1979). The question is not what a particular employee in good faith reasonably believed, but what a reasonable person under the same or similar circumstances would have believed. Wehr Steel Co., supra.

The employee's intent here was to share his comments with his friends, ostensibly one of whom was a co-worker. The employee testified: "Only friends can access my Facebook [a]ccount."(8) The employee also testified that he did not think he violated the harassment policy because he did not think he used a racial slur. He testified, "If saying 'Mexicans' is offensive then I'd be offending my daughter, my grandson and my girlfriend and her son because they are all Mexican." However, he later admitted that the comment he made was offensive and he should have worded it differently or not made the comment at all.

The employee did not intend to harm the employer when he posted the comments. The employee testified that his comments were written out of frustration and, therefore, were akin to venting. The commission has held that discussing job dissatisfaction with receptive co-workers is an accepted form of communication in an employment relationship. See, Gonzalez v. Potowatomi Bingo Casino, UI Dec. Hearing No. 09607565MW (LIRC March 18, 2010); Provost v. M-W Marine, Inc., UI Dec. Hearing No. 06600549MW (LIRC April 28, 2006). The majority concludes that a reasonable person may have thought that posting on a personal Facebook page was an acceptable way to vent to one's friends about job dissatisfaction and receive support from friends without intending to harm the employer's interests.

Though inappropriate and offensive, the majority finds that the single, isolated incident of posting the comments on a personal Facebook page where the employee did not intend to share the posts with anyone other than his friends, where the comments were not made at the workplace, did not threaten anyone and did not expressly identify the employer, and where there is no evidence that there was any great exposure of the comments, was not exceptionally egregious and did not constitute misconduct connected with the employee's work.

The dissent would find that the employee's action in posting two comments on his Facebook page were sufficiently egregious to justify a finding of misconduct connected with his work, even without prior notice or a warning that such conduct was unacceptable and that his job would be in jeopardy if he engaged in it. In support of its position, the dissent cites the commission's decision in Xiong v. Educators Credit Union, UI Dec. Hearing No. 07602326MW (LIRC Oct. 18, 2007). However, the dissent's reliance on Xiong is misplaced.

The employee in Xiong used the employer's computer to send derogatory e-mails about her co-workers to a worker at another location. The employer had a handbook that allowed for personal use of the employer's equipment and systems, including e-mail, but stated that workers should not have any expectation of privacy and the employer reserved the right to monitor the use of its equipment including e-mails. The handbook also provided that workers should not make derogatory or demeaning comments about others and should not use profanity, vulgar, critical or otherwise disrespectful language that might make the worker look bad or offend someone else. The employee was discharged for making derogatory comments about her co-workers in e-mails from the employer's computer. Though the employee in Xiong had not received a prior warning from the employer specifically about her e-mails before she was terminated, the commission did consider the fact that the employee was alerted by the handbook that she was not to make derogatory comments about co-workers and that her e-mail could be monitored by the employer. She was on notice as to what behavior was expected in the workplace, and her actions took place at the workplace and on the employer's equipment. The commission specifically stated that the "employer's policy alerted the employee that she had no expectation of privacy when using the employer's e-mail."

In this case, the employee used his personal cell phone to make comments on his personal Facebook page to his Facebook friends. The employer's policy is silent on the use of social media. The employee in the present case was not similarly alerted that the comments he made on his personal Facebook page using his own equipment may be accessed by the employer and lead to the termination of his employment, such that a termination for a Facebook posting without a warning for prior postings could be considered misconduct. Therefore, this case is not analogous to the Xiong case.

The majority agrees with the dissent that it is not necessary that an employee violate an employer policy in order for misconduct to be established, and that some conduct is sufficiently egregious that it will be considered misconduct even if there is there is no prior warning. Indeed, in this case, the majority found that the employer's policy did not apply to comments made by employees to friends in non-work forums and therefore the employer had not proved that the employee violated the policy. The majority then analyzed whether the employee's conduct was sufficiently egregious to constitute misconduct in the absence of such a policy. The majority concluded that the employee's conduct was not so severe and pervasive or, as a single act, unusually egregious, as to constitute misconduct. Though the dissent disagrees, it points to no relevant authority to challenge that result.

The administrative law judge warned the parties:

As social media continue to expand sites such as Facebook and Twitter offer workers the opportunity to vent and disseminate critical comments regarding their employers and co-workers to anyone with access to their sites. Statements made on these sites that would not be tolerated if made on the shop floor or in an employer's administrative offices find their way back to the employer or colleague through copying or reposting. One would be wise to view any comments made on the internet as not private with the potential to exist indefinitely in cyberspace.

The majority agrees with this statement. Facebook does not have explicit instructions for use. As such, even users who are computer literate may not fully grasp the extent of the privacy settings and what may ultimately be viewed by people other than their friends. The fact that Facebook does have privacy settings may even lead users, especially unsophisticated users, to reasonably believe that their comments are private when they actually may not be.

Facebook and other web and mobile-based technologies and social networking sites (e.g., MySpace, Bebo, LinkedIn, Pinterest, Chatter, Google+, Plaxo, Tagged, Flickr, Instagram, Picasa, SmugMug, Path, Twitter, social blogs, YouTube, etc.) are constantly changing and new technologies and devices are being introduced. Though people are eager to take advantage of the new and improving technologies, they do not always know or understand the ramifications of using those technologies. In this case, although the employee's conduct was not found to constitute misconduct under the Boynton Cab standard, he did lose his job as a result of the posts, which is a severe consequence in itself.

LAURIE R. MCCALLUM, Commissioner (dissenting):

I respectfully dissent from the majority opinion.

The employee's discharge was the direct result of his deliberate actions in posting undeniably offensive comments about the employer, his supervisors, and his co-workers on his personal Facebook page. While the majority finds that the employer's harassment policy was insufficient to place the employee on notice that he may be discharged for such behavior, it is not necessary that an employee violate an employer policy in order for misconduct to be established. Although the existence of a policy may satisfy the requirement that the employee had notice that certain conduct could lead to discipline or discharge, some conduct is sufficiently egregious, even without such notice, to establish misconduct. As such, the crucial question in this case is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he engaged in it.

The employee had the employer's name clearly listed at the top of his personal Facebook page along with his position as "Plant Lead." He directly references his workplace in the comments he posted on his page. It is agreed by the majority that the employee's comments were highly offensive and derogatory in nature. The comments served to bring the employer into disrepute. It is important to note that everything one posts to one's "wall" is automatically published on a "newsfeed" which is then broadcast to all of one's confirmed "friends" and may be re-posted or shared by all of those "friends." Facebook does have a "message" option where a user may send a private message to another user which is not posted on anyone's wall or published on the "newsfeed." The employee chose not to use the "message" option. Instead, he published his defamatory comments for all to see and reproduce. Moreover, the ALJ found, and the majority concedes, that the employee made such comments on company time. The employee's conduct is further exacerbated by his position which requires him to lead by example.

The commission addressed an analogous fact pattern in Xiong v. Educator's Credit Union, UI Dec. Hearing No. 07602326MW (LIRC Oct. 18, 2007). In Xiong, the employee sent racially derisive e-mails to a co-worker with regard to their colleagues. The employee was at work at the time she sent the e-mails and used the employer's computer system. She failed to sign off of the computer and another co-worker discovered the e-mails the following day and presented them to the employer. The commission concluded that the employee's actions were sufficiently egregious, despite the lack of a prior warning for similar behavior, and justified a finding of misconduct. While the employee in the present case did not use the employer's equipment to post his vulgar comments, he was at work and on duty at the time of his conduct. Furthermore, the employee did not simply direct an individual e-mail or message to one receptive co-worker, he posted his outrageously offensive and racist comments on his Facebook page where they could be seen by any of his Facebook friends, and potentially, the large universe of the friends of his friends. This universe could certainly include not only co-workers and managers but customers and competitors of the employer.

In my opinion, a reasonable person under the factual situation presented here would have considered the employee's conduct to be a willful interference with the employer's interests. Accordingly, in light of the aggregate factors present in this case, I would reverse the decision of the administrative law judge and conclude that the employee engaged in misconduct.

 

/s/ Laurie R. McCallum, Commissioner

Editor's Note:

In Rhine v. OS Restaurant Services Inc., UI Dec. Hearing No. 13601216MW (LIRC July 16, 2013), the commission explicitly found Facebook postings to be public remarks.


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Footnotes:

(1)( Back ) Exhibit 2 is a printout of four pages of the employee's Facebook wall. The times when comments were posted is not legible; however, the employer's human resources manager testified that she identified the times of the posts based on how long ago the posts were identified as having been made.

(2)( Back ) The dissent states that the employee had the employer's name clearly listed at the top of his Facebook page, however, that is not accurate. The employee identified his employer as "KMC Stampings," not "Kickhaefer Manufacturing Co." This was on the employee's wall and would not have appeared on any of his friends' own newsfeed pages if they saw the comment there; anyone who saw the comment on a newsfeed would had to have taken additional steps to go to the employee's wall to find out who his employer was. Even then, KMC Stampings would not necessarily have been readily identified with Kickhaefer Manufacturing Co.

(3)( Back ) The dissent asserts that the employee's comments "served to bring the employer into disrepute," however, this was not proven since there was no evidence as to the audience for the employee's posts. In fact, there is no evidence in the record that anyone other than two friends and one co-worker and the human resources manager saw the employee's comments on Facebook.

(4)( Back ) The employer did not identify the person who brought the employee's comments to its attention so it is not clear if the co-worker saw the posts because the co-worker was a friend of the employee's on Facebook or if one of the employee's other friends made the information known to a different co-worker.

(5)( Back ) See, e.g., Koester v. Signicast LLC, UI Dec. Hearing No. 11001177MW (LIRC July 29, 2011); Ross v. G.S. Hydraulics, Inc., UI Dec. Hearing No. 09601827MW (LIRC June 24, 2009); Morel v. Ball Plastic Container Corp., UI Dec. Hearing No. 08003462MD (LIRC December 12, 2008); Racette v. Construction Solutions of the Fox Valley LLC, UI Dec. Hearing No. 07402808AP (LIRC February 21, 2008); Hoaglan v. Carriage Cleaners, UI Dec. Hearing No. 07601633MW (LIRC June 22, 2007); Gehle v. Supercuts, UI Dec. Hearing No. 07000908MD (LIRC June 18, 2007); Bierman v. County of Shawano, UI Dec. Hearing No. 06402810GB (LIRC May 2, 2007); Gunnarson v. Valley Estates LLP, UI Dec. Hearing No. 06202070 (LIRC March 28, 2007); Roloff v. U S Cellular, UI Dec. Hearing No. 06400680AP (LIRC July 27, 2006); Goodwin v. QTI Professional Staffing of Milwaukee Inc., UI Dec. Hearing No. 06602386RC (LIRC July 26, 2006); Fuss v. Pick N Save, UI Dec. Hearing No. 05403409AP (LIRC May 31, 2006); Hintz v. Nate's Lawn Maintenance Inc., UI Dec Hearing No. 06600287WB (LIRC April 20, 2006); Tolliver v. Wendy's Old Fashioned Hamburgers, UI Dec. Hearing No. 05602052RC (LIRC June 15, 2005); Williams v. Sunshine Cleaners Inc., UI Dec. Hearing No. 05600483MW (LIRC May 24, 2005); Jackson v. The Wackenhut Corporation, UI Dec. Hearing No. 05600559MW (LIRC May 12, 2005); Doherty v. Plymouth Lubrication Inc., UI Dec. Hearing No. 04605049MW (LIRC Feb. 25, 2005); Kaiser v. Wausau Steel Corp., UI Dec. Hearing No. 04200083WU (LIRC July 8, 2004); Hoppe v. Perfecseal Inc., UI Dec. Hearing No. 04400033OS (LIRC June 29, 2004); Cadotte v. Prime Care Health Plan, UI Dec. Hearing No. 03608737MW (LIRC July 7, 2004); Holcomb v. Catholic Family Life Insurance, UI Dec. Hearing No. 03605434MW (LIRC March 18, 2004); Kreuzpaintner v. Menards, UI Dec. Hearing No. 03605888MW (LIRC March 16, 2004); Metzger v. Casey's Marketing Co., UI Dec. Hearing No. 03002478BD (LIRC Nov. 7, 2003); Ward v. Diamond Detective Agency Inc., UI Dec. Hearing No. 03604533MW (LIRC Nov. 5, 2003); Mullan v. The Equitable Bank SSB, UI Dec. Hearing No. 02610586MW (LIRC June 15, 2003); Smallcombe v. The Noodle Shop Co., UI Dec. Hearing No. 02608958 (LIRC June 10, 2003); Kahl v. Knight Mfg. Corp., UI Dec. Hearing No. 02008166JV (LIRC May 16, 2003); Ness v. Deli-More, UI Dec. Hearing No. 02403062GB (LIRC April 10, 2003); Skavland v. Oldenburg Group Inc., UI Dec. Hearing No. 02608860MW (LIRC April 4, 2003); Munoz v. LaCosta, Inc., UI Dec. Hearing No. 02607640MW (LIRC April 4, 2003); Hainz v. Nelson Industries, Inc., UI Dec. Hearing No. 00003095MD (LIRC Oct. 3, 2000); and Marcolini v. Alma Public Schools, UI Dec. Hearing No. 78-20774EX (LIRC May 29, 1979).

(6)( Back ) Even if an employer has a social media policy that prohibits posting on social media, that does not guarantee that an employee who is discharged for posting on a social media site in violation of a social media policy will necessarily be found to have been discharged for misconduct. The courts have held: Violation of a work rule may justify discharge but not amount to misconduct. The misconduct provision will be given a construction least favorable to working a forfeiture, so as to minimize the penal character of the provision. The crucial question is the employee's intent or attitude connected to the act or omission alleged to be misconduct. C & D Technologies v. LIRC and Henry Arvin, Case No. 04-CV-6037 (Wis. Cir. Ct. Milwaukee County Jan. 25, 2005); See, Milwaukee Transformer Co. v. Industrial Comm., 22 Wis. 2d 502, 126 N.W.2d 6 (1964).

(7)( Back ) Indeed, the employee in the present case testified that he was "shocked" by his discharge.

(8)( Back ) The dissent criticizes the employee for not using a "message" option and asserts that the employee "published his defamatory comments for all to see and reproduce." That was clearly not the employee's intent. The dissent states that "[i]t is important to note that everything one posts to one's 'wall' is automatically published on a 'newsfeed' which is then broadcast to all of one's confirmed 'friends' and may be re-posted or shared by all of those 'friends.'" The dissent further speculates that his posts could have been re-posted to "the large universe of friends of his friends" which could include "not only co-workers and managers but customers and competitors of the employer." There was no testimony in the record as to the number of the employee's friends. The dissent's claim that a large universe of people could have been exposed to the employee's venting is speculative and is not supported by the record. Moreover, the dissent's explanation of how Facebook posts "work" is not correct because posts can be locked to certain categories or lists of 'friends,' to individuals, or even to oneself, which serves to show exactly why even sophisticated computer users may not fully understand the extent of a Facebook post.