BENJAMIN M BUSSE, Employee
LAMERS BUS LINES INC, 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 makes the following:
The employee worked for four months as a school bus driver for the employer, a school bus company. His last day of work was May 26, 2011 (week 22).
The employer maintains a personal conduct policy that calls for workers to behave in a manner that casts the employer in a positive light. Specifically, the policy indicates that "Employees are to conduct themselves in a manner, both on and off the job that will reflect favorably on the image of the company, the character of its employees, and the competence of its employees."
On May 25, 2011, the employee was upset at the employer and vented his frustrations on his Facebook wall. He posted a message that was accessible to his friends that stated, "Dispatch at work are ass holes, period. They complain about me when I am too early and when I am too late. . . they need to shut the hell up and fuck off! Do not work for Lamers Bus Lines poor management all around."
The message was brought to the attention of the operations supervisor by co-workers and the supervisor confronted the employee. The employee indicated that he had not written the message and that somebody must have broken into his account. The supervisor told the employee that he was responsible for this since it was his account. The employee asked what he should do now and the supervisor responded that he should resign. The employee then submitted his resignation. He would have been discharged if he had not resigned. On September 15, 2011, the employee admitted to the supervisor that he had written the message.
The initial issue to be decided is whether the employee quit or was discharged.
When an employee resigns in lieu of what the employer considers impending discharge, the determination of whether the employee quit or was discharged depends on whether the employer would have allowed the employee to continue working if the employee had not resigned. The focus is on whether the evidence established that the employee's discharge was a certainty. Stahlman v. Whitnall School District, UI Dec. Hearing No. 06002990 MD (LIRC January 11, 2007).
In this case, the employer agreed that the employee would have been discharged if he had not resigned. Therefore, the employer was the moving parting in the ending of the employment relationship and the employee was discharged on May 26, 2011(Week 22).
The next issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment.
The statutes generally provide that if an employee is discharged from employment with an employer due to actions that constitute misconduct connected with the employment, the employee will not be eligible for any unemployment benefits based on wages earned from work performed prior to the discharge for that employer and will only be eligible for benefits based on wages earned from work for other employers when at least seven weeks have elapsed after the end of the week of discharge and the employee has earned wages in covered employment after the discharge of at least 14 times the employee's applicable weekly benefit rate.
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 employee's Facebook post was inappropriate. Further, it could be argued that it violates the employer's policy. However, that does not end the inquiry. Other than in the most egregious cases, 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 certain types of conduct. See, e.g. Hainz v. Nelson Industries, Inc. UI Dec. Hearing No. 00003095MD (LIRC October 3, 2000); Marcolini v. Alma Public Schools, UI Dec. Hearing No. 78-20774EX (LIRC May 29, 1979).
The employee argued that his discharge was not for misconduct. The majority agrees. The employee certainly exercised extremely poor judgment. However, he was upset by a personal matter and posted something inappropriate on his Facebook page. The commission noted in Harrison v. Kickhaefer Mfg. Co. LLC (LIRC August 24, 2012), that a worker who posted something offensive about his workplace was not sufficiently on notice that his job would be in jeopardy as a result of the Facebook post. The commission's majority held 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." The employee in this case believed he could "get into trouble for posting something like that." However, he was not aware that he would be discharged.
Here the employer's rule is extremely broad and could be interpreted to prohibit complaining to a spouse after having a bad day at work or filing a complaint with a governmental agency. The employee was upset and was venting as he might have done in a discussion with friends in a public place over drinks and coffee. The employee's action in this case was an isolated instance of poor judgment. Thus in the absence of a prior warning for similar conduct, the commission is not willing to conclude that the employee's actions amounted to misconduct. While the employer may have made a valid business decision when it discharged the employee, his actions did not evince such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work.
The commission therefore finds that in week 22 of 2011, the employee was discharged by the employer but not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits, if otherwise qualified.
Dated and mailed December 13, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
bussebe . urr : 145 : 5
The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ's decision based on a differing impression of the facts, which were not disputed. Rather the commission reversed the ALJ's decision because it reached a different conclusion when applying the law to the facts found by the ALJ.
NOTE: The dissent finds that the employee's acknowledgement that he could get into trouble for posting the message is significant, but ignores the fact that the employee was fired by the employer. Losing one's job in any economy, but especially today's, is a severe consequence but the employee's acknowledgement does not rise to the Boynton Cab standard.
LAURIE R MCCALLUM, Commissioner, (dissenting):
I respectfully dissent from the majority opinion.
On May 25, 2012, the employee, using the public viewing setting, posted the following message on his Facebook page:
This batch at work are assholes. They complain about me when I am too early and when I am too late. They need to shut the hell up and fuck off. Do not work for Lamers Bus Lines. Poor management all around."
Two of the employee's fellow bus drivers viewed the posting and brought it to the attention of the employer.
The employer had a policy in its handbook which stated that, "Employees are to conduct themselves in a manner, both on and off the job, that will reflect favorably on the image of the company, the character of its employees, and the competence of its employees." The employee did not dispute the employer's testimony that he had signed for receipt of this handbook, and he acknowledged in his testimony that he knew he could get in trouble for posting the message at issue here, and that his actions were "misconduct" and he "wasn't following the rules" (page 3 of the hearing synopsis).
So, despite his knowledge of the employer's policy and his awareness that a critical posting could have an adverse impact upon his employment, the employee, in a profanity-laced rant, publicly impugned the reputation of Lamers Bus Lines and the competence of its managers.
Although the majority here relies on Harrison v. Kickhaefer Mfg. Co. LLC, UI Dec. Hearing No. 12601158MW (LIRC Aug. 24, 2012),(1) the majority in Harrison relied to a significant extent upon the absence of an employer policy, the failure of the record in that case to clearly delineate whether the posting was a public one, and the lack of a direct link between Harrison's posting and his employer, in concluding that misconduct had not been proved. However, in the present case, there is a clear employer policy prohibiting off-duty actions that place the employer in a bad light, the employee concedes that his message was posted for public viewing, and the message specifically mentions the name of the employer.
In my opinion, the facts here support a conclusion of misconduct. In Merkel v. LIRC and Teach & Toys, d/b/a The Learning Shop, Case No. 02CV002912 (Wis. Cir. Ct., Milwaukee County, October 30, 2002); aff'd per curiam Ct. App. District 1, June 17, 2003, the commission held that the employee's actions in criticizing her employer in an email to managers of other stores in a mall evinced a deliberate and substantial disregard for the employer's interests and the standards of conduct the employer had a right to expect of her, and her discharge was for misconduct as a result. In Skavland v. Olden Berg Group, Inc., UI Dec. 02608860MW (LIRC April 4, 2003), the commission, in concluding that misconduct had not been proved, distinguished the Merkel case using the factors of level of criticism and scope of publication, i.e., an audience of one coworker in Skavland did not compare to the audience of 20 managers in Merkel, and the simple agreement with a disgruntled coworker in Skavland did not compare to the clear attempt to discredit the employer in Merkel by criticizing a manager's use of the term "retarded" to describe a decision to close the shopping mall.
Although the employee in Merkel had been warned for prior similar conduct and thus had reason to be aware that her job was in jeopardy, the employer's policy in this case provided sufficient notice to the employee, as he conceded, that the posting at issue violated the employer's rules and could have an adverse impact upon his employment.
Otherwise, there is no comparison between the level of criticism and the scope of publication in Merkel, where the commission, as affirmed by the circuit court and the court of appeals, found misconduct, and this case, where the majority has not. In Merkel, the critical email had a circulation of 20, whereas the employee's public Facebook posting here could be seen by any of his Facebook friends, and, potentially, the large universe of the friends of his friends and their friends, etc., which could certainly include not only co-workers and managers but customers and competitors of the employer. In addition, in Merkel, the criticism consisted solely of disagreement with the employer's use of the term "retarded" when it disagreed with a mall closing decision. Here, the employee, using offensive profanity, broadly criticized the management of Lamers and went so far as to warn his audience against working for the company.
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 his public posting at issue. His 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.
In my opinion, the employee's public Facebook posting was an egregious and deliberate disregard of his employer's interests and of his duties and obligations to his employer, within the meaning of Boynton Cab. Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), and, as a result, I would affirm the ALJ's conclusion of 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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