ROCHELLE S SMITH, Employee
ST CROIX CASINO, Employer
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 commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits as of week 17 of 2012 and thereafter, if she is otherwise qualified.
Dated and mailed December 18, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
The petition for commission review in this matter does not challenge any specific findings of fact made by the ALJ as being unsupported by the record, nor does it assert whether and why any conclusions of law are claimed to be in error. Nevertheless, the record has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported. Concluding that they are, the commission majority has adopted them as its own.
The employee worked for about eight years as a table games worker for the employer, a casino. On April 24, 2012, after being passed over for a promotion at work and having learned about it from the successful candidate - a young white man with 2 years on the job and considerably less knowledge of the casino games, the employee - who is white and 47 years old, went home and posted the following three messages on Facebook:
I hate! Hate! Being treated as less than I'm worth. Just as I have been for almost 8 yrs, overlooked for a promotion not because of my experience and re pore [sic] with the clients, but because of my skin color or age not being right!! I'm so done with sucking it up. Just a few more mths...then I can claim myself back!!
Today was the closest...like 1 mm away from tossing that badge and walking out in the middle of my shift. Thank God I'm more mature than that!
I think I'm more angry that I have to go back there and suck it up for a few more months than I am about not preparing for my departure a long time ago. I know the end is in sight....looking for new work! Any openings in Forest Lake?
From the evidence presented at the hearing, three of her Facebook friends responded, one saying the remark about skin color made her laugh out loud, one expressing sympathy for her tough day at work, and the other expressing sympathy and also saying "Love rational thought in adverse situations."
The posting was seen by someone who reported it to the employer's general manager. Apparently, he was able to view the employee's Facebook postings, and he printed them off. The employee was discharged for violating rule #28 of the rules of conduct in the employee handbook. The employee handbook provides that a violation of any of the rules of conduct "may be grounds for progressive discipline including termination." Rule #28 reads: "Making public, false or defamatory statements about St. Croix Chippewa Enterprises policies, practices, procedures, management or other employees at any time, on or off duty." There was no rule of conduct relating to use of social media, and the employee had never received a warning for similar conduct.
In his decision, the ALJ stated that it would not have been immediately apparent from the posting that the employer was being referenced since that information was contained on a different page containing the employee's Facebook profile, that it was clear from the posting itself that the employee was venting frustration over being passed over for a promotion, and that the comments "should not necessarily be viewed as her genuine and considered opinion." He also noted that the employee denied any intention to do harm to the employer by portraying it in a negative way. He found that the employee exercised poor judgment in posting her comments, but that her conduct was not misconduct connected with the employment, within the meaning of Wis. Stat. § 108.04(5). The commission majority agrees.
In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:
. . . the intended meaning of the term 'misconduct' . . . is limited to 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. On the other hand mere 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.
The evidence established that the employee had not considered her comments to violate a rule of conduct, nor had she intended her comments to harm the employer, but that she was simply angry and blowing off steam with her Facebook friends. She was not aware of the Facebook privacy options, but did not think that her comments would be distributed in a public or extensive manner. In addition, she had not previously been aware that Facebook had such a large potential audience, but had thought that only people she "friended" or accepted as "friends" would have access to her postings.
The commission has repeatedly stated that, in the absence of a previous warning, a single act will not be considered misconduct unless it is unusually egregious. See, e.g., Hoppe v. Perfecseal Inc., UI Dec. Hearing No. 044000330S (LIRC June 29, 2004) (employer's computer policy did not place employee on notice that her job would be in jeopardy for its violation, and single instance of sexually suggestive images not sufficiently egregious); Smallcombe v. The Noodle Shop Co., UI Dec. Hearing No. 02608958MW (LIRC June 10, 2003) (although recently hired assistant manager used derogatory term toward worker, this was a single incident and did not come close to demonstrating misconduct), and cases cited therein. In this case, the employee's postings were not profane, salacious, or racist, she had never been warned for similar conduct, the content of her postings would not reasonably be considered egregious, and she did not intend to harm the employer with her posting.
The employee's intent in making these comments in her postings is a key consideration. It is clear from the testimony that she did not consider her postings to be public, and the employer's policy did not put her on notice that postings on Facebook outside of work would be covered by the employer's rule.(1) In addition, her comments about skin color and age, although troubling, do not appear to be, as the ALJ noted, an expression of her genuine and considered opinion. This situation is more akin to those cases involving single, brief outbursts attributable to frustration and anger, considered to be isolated incidents of poor judgment, and not misconduct. See, e.g., Jurasovich v. Van Ru Credit Corp., UI Dec. Hearing No. 03606070MW (LIRC March 12, 2004) (upon learning she did not earn a bonus, employee upset, continued speaking loudly to manager after being told to stop, not misconduct given extenuating circumstances). The commission majority simply does not believe that the employee's postings demonstrate the kind of gross negligence or intentional, substantial disregard of the employer's interests or expected standards of behavior that is required to constitute misconduct connected with the employment under unemployment insurance law.
This conclusion is supported by two recent cases decided by the commission that involving Facebook postings - Busse v. Lamers Bus Lines Inc., UI Dec. Hearing No. 12201544EC (LIRC Dec. 13, 2012) and Harrison v. Kickhaefer Mfg Co LLC, UI Dec. Hearing No. 12601158MW (LIRC Aug. 24, 2012).
In Busse, the employee, who was upset with his employer, posted a message on Facebook that was accessible to his friends. The message disparaged the employer's management, using profanity. The employee was discharged by the employer for violating a company policy providing that employees are to conduct themselves on and off the job in a manner that reflects favorably on the company and its employees. The commission majority found no misconduct, reasoning that, although the posting was inappropriate and may have violated the company policy, there was no indication that the company rule put the employee on notice that his conduct would place his job in jeopardy,(2) and he had not previously been warned for such conduct.
In Harrison, the employee, also upset with his employer, posted several comments on Facebook about his boss and the company, using profanity and including sexual and ethnic slurs. He was discharged for violating two company policies, one involving the use of cell phones while at work and the second involving the employer's harassment policy. In dealing with the content of the Facebook postings, the commission majority concluded that "a reasonable person" might think 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." The commission majority noted that the employee's posted comments were inappropriate and offensive, but 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.
In sum, the commission majority understands the concern that employers have about negative information about their businesses being communicated outside the work site. However, not all communications about work-related matters can be lawfully regulated, nor should they be. More important, in the context of eligibility for unemployment benefits, the issue presented is whether the employee committed misconduct connected with the employment that resulted in his or her discharge. Given the severe consequences that result from a finding of misconduct, in addition to the loss of one's job, the courts and the commission have repeatedly required that, unless the conduct is particularly egregious, an employee must be aware that the conduct at issue is prohibited by the employer. In this case, as in Busse and Harrison, employees have simply not been aware that their postings to friends on Facebook critical of their employers will result in their being discharged from their jobs. The commission majority will not overturn years of consistent interpretation of "misconduct" to expand its meaning in these cases.
LAURIE R MCCALLUM, Commissioner (concurring):
I concur with the majority that the employee's discharge was not for misconduct. The employee's postings were not profane, salacious, or racist; they did not directly identify the employer; and she had never been warned by the employer for similar conduct. As a result, I agree with the majority that the employee's single act here was not sufficiently egregious to constitute misconduct.
However, I do not agree with the majority that the postings would not reasonably have been considered to be public statements.
Those who use social media, including Facebook, are necessarily aware of the scope of publication of their postings, since they establish the settings themselves, and the employee here could not, therefore, have had any reasonable expectation of privacy in regard to the postings at issue. Her situation, as a result, is not akin to sitting with a group of friends or coworkers outside of work grousing about your employer, where the members of your audience are obvious and clearly delimited.
Here, the employer had a rule (#28) which specifically prohibited making public defamatory statements about employer practices. The language of the rule would reasonably have put the employee on notice that posting comments on Facebook critical of the employer would fall within its ambit. In my opinion, the employee's postings violated rule #28, but this violation was not sufficiently egregious to constitute misconduct within the meaning of Boynton Cab, supra.
/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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