Wis.LIRC UC Decision: Rhine, Erik - July 29, 2013 - MC 610.06 - Complaint or discontent - MC 615 - Connection w. Employment - MC 665 - Relation-offense to discharge - MC 686 - Violation of Company Rule - An employee's comment posted on Facebook was not found to constitute misconduct where the post was an isolated incident, the post was not sufficiently egregious by itself to constitute misconduct, the post did not identify the employer, and the record did not establish that the employer was identified on the employee's Facebook page. As part of its rationale, the Commission stated that Facebook postings are public remarks and disavowed reasoning in prior commission decisions to the effect that Facebook postings could be private between friends.

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

ERIK T RHINE, Employee

OS RESTAURANT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 13601216MW

On January 29, 2013, the Department of Workforce development issued an initial determination which held that the employee's discharge was not for misconduct for unemployment benefit purposes. The employer filed a timely request for hearing on the adverse determination, which was held on March 8, 2013. On March 12, 2013, a department administrative law judge issued a decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the record and the applicable law, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately a year and a half as a server for the employer, a restaurant. The employer discharged him on December 29, 2012 (week 52), for having posted an inappropriate comment about his manager on his Facebook page, and the issue is whether the discharge was for misconduct for unemployment benefit purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

On December 28, 2012, the employee mentioned in a conversation with his manager that he appreciated having Saturdays off. The employee recently had had Saturdays off, and was working double shifts on other days. Later that day, the manager posted the next work schedule, and the employee saw that he was scheduled to work Saturday, December 29, 2012. The employee was upset by this, and so posted the following on his Facebook page: "I like it when I tell my boss how much I enjoy having Saturdays off from that God forsaken place, and a few hours later the next schedule is posted, with me working Saturday. Umm, fuck you?"

The employee's post violated the employer's social media policy (of which the employee had notice), which provides in relevant part that employees should not speak of the employer or its guests in a derogatory manner, and that using abusive or hateful language is a violation of the policy. The policy also provides that an employee who violates the employer's policies on a social media site will be subject to disciplinary action up to and including termination. The manager learned of the post on December 29, 2012 (week 52), and discharged the employee that day for violation of the policy.

Misconduct for unemployment benefit purposes is the intentional and substantial disregard of standards an employer reasonably may expect of its employees. See Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941). The commission's conclusion that the employee's post does not meet this standard is based upon the following factors. First, the employee's post was a single, isolated instance of venting over what the employee perceived to be vindictiveness on the manager's part. The employee was incorrect in this belief, but that belief nonetheless was the impetus for the employee's post.

Second, the employee's post was not sufficiently egregious, by itself, to constitute misconduct. In particular, it was less egregious than remarks the commission also found not to constitute misconduct, in Corie N. Harrison v. Kickhaefer Mfg. Co., L.L.C., UI Dec. Hearing No. 12601158MW (LIRC Aug. 24, 2012), and in Benjamin M. Busse v. Lamers Bus Lines, Inc., UI Dec. Hearing No. 12201544EC (LIRC Dec. 13, 2012). The post was inappropriate, but it was not threatening, and it did not slander the employer or its product.

Third, the employee's post did not identify the employer and the record does not establish that the employer was identified on the employee's Facebook page. This is relevant because the commission believes postings on Facebook are public remarks, and the commission disavows any reasoning in Harrison, Busse, and in Rochelle S. Smith v. St. Croix Casino, UI Dec. Hearing No. 12201867EC (LIRC Dec. 18, 2012), to the effect that postings on Facebook are private.

The commission therefore finds that, in week 52 of 2012, the employee was discharged but that the discharge was not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 52 of 2012, if he is otherwise qualified.

Dated and mailed July 29, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge, but rather for the reasons stated in the body of the commission decision.

rhineer_urr : 105 : MC 610.06

cc: CARRABBA'S ITALIAN GRILL

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2013/08/02