Termination for Social Media Activity May Result in Unemployment Compensation Benefits

Q.  Our Company just terminated an employee for a social media post that was in violation of our social media policy. Will she be entitled to unemployment compensation benefits?

A.  Possibly.

While unemployment compensation laws vary from state-to-state, former employees generally are entitled to benefits unless the employer can prove that the employee’s employment ended due to a disqualifying reason, such as willful misconduct or voluntary discharge.

In a recent Pennsylvania Commonwealth Court decision, Waverly Heights, Ltd. v. Unemployment Compensation Board of Review, the Court affirmed a benefits award to a former human resources executive who was terminated for sending what the employer deemed to be a racially-charged tweet about the 2016 presidential election. Until her termination, Kathleen Jungclaus had served as the vice president of human resources of a retirement care community for nearly 20 years. Ms. Jungclaus was terminated when she posted a tweet to her personal Twitter account in July 2016 that stated “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!” Per the employer, “AA” referred to African Americans and Ms. Jungclaus’s tweet was an admission to singling out black staff members and asking them about their political preferences.

Ms. Jungclaus’s employer maintained a social media policy that stated it was the employer’s expectation that employees “who identify themselves with” the employer on social media promote and protect the reputation, dignity, respect, and confidentiality of the employer’s residents, clients and employees. Because of the racially-charged nature of the Tweet (and its presumed reference to African American employees), the employer argued that Ms. Jungclaus’s termination for violating the company’s social media policy constituted willful misconduct.

For Pennsylvania Unemployment Compensation Law purposes, “willful misconduct” is defined as “(1) wanton and willful disregard of an employer’s interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer’s interests or the employee’s duties and obligations.” When an employer seeks to deny a former employee unemployment compensation benefits based on a rule or policy violation, the employer must prove (a) the existence of the rule; (b) the reasonableness of the rule; and (c) the employee’s violation of the rule.

Applying these standards, the Commonwealth Court determined that there was sufficient evidence to support a finding that Ms. Jungclaus did not violate the social media policy because she did not explicitly “identify” herself as an employee of Waverly Heights—even though a Google search of Ms. Jungclaus’s name would reveal that she worked there. Furthermore, the Court concluded there was no evidence of “wanton and willful disregard of an employer’s interests” because there was no actual evidence that Ms. Jungclaus polled African-American employees about their political preferences.  The Court found that mere discussions of current affairs did not rise to the level of willful misconduct.

Importantly, the Court reviewed only whether Ms. Jungclaus was entitled to unemployment compensation benefits. The Court was not asked to consider whether the termination itself was unlawful.

The Obama-era National Labor Relations Board (“NLRB”) frequently concluded that overly broad social media policies could have a chilling effect on unionized and non-unionized employee rights to engage in concerted activities under the National Labor Relations Act (“NLRA”).  As we mentioned in a post earlier this year, the U.S. Court of Appeals for the Second Circuit ruled that an employee’s social media post cursing at a supervisor and his family, made during a union election, was protected activity under the NLRA, and the employee could not be terminated for it. It remains to be seen how the Trump NLRB will interpret and enforce social media policies.

The primary lesson for employers? Unless an employer can affirmatively establish that a terminated employee engaged in willful misconduct or is ineligible for benefits due to other disqualifying reasons, then the terminated employee likely will be entitled to unemployment compensation benefits. Further, when making an employment decision based on an employee’s social media post, tread carefully. At least for unemployment purposes, it is likely that state labor departments and the courts will not find such comments to rise to the level of willful misconduct. Additionally, depending on the content and context of the post, the NLRB may find the post to be a lawful concerted activity protected by the NLRA.

Lee E. Tankle

Is an ‘Honest Belief’ of FMLA Misuse Enough for Termination?

Q.  Can I discharge an employee if I believe that he or she is misusing FMLA?

A.  According to a recent Third Circuit opinion, an employer’s honest belief that its employee misused FMLA leave is sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.

In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. 2017), the company granted the employee intermittent FMLA leave for flare-ups as a result of hip replacement surgery.  On February 14, 2013, Capps took intermittent leave. That evening, he went to a pub and became severely intoxicated. On his way home, Capps was arrested for driving while intoxicated and spent the night in jail. He was scheduled to work the next afternoon, but called out again. Approximately six months later, Capps pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.

The company’s HR manager learned about Capps’s arrest and conviction when he read about it in a local newspaper. The company then learned that the date of Capps’s arrest and subsequent court dates coincided with dates when he had taken intermittent FMLA leave. The plaintiff was terminated for violating company policy and sued, claiming that the company discriminated against him by terminating his employment in retaliation for taking FMLA leave. The lower court granted summary judgment on the ground that the company acted on an honest belief that Capps had misused his FMLA leave.

On appeal, the Third Circuit affirmed. Significantly, the court concluded that the company met its burden of demonstrating a legitimate, nondiscriminatory reason for the plaintiff’s discharge — the fact that Capps was terminated for misusing FMLA leave in violation of company policy. The court concluded that it is enough if the employer provides evidence that the reason for the adverse employment action was an honest belief that the employee was misusing FMLA leave, regardless of whether that belief turned out to be true.

Although the “honest belief” defense provides support for employers to take action based on a sincere belief that an employee misused FMLA leave, employers are cautioned to be careful in invoking this defense. Before terminating an employee for misusing FMLA leave, be sure to have objective evidence of misconduct. It is likely in most cases that it will be a jury question whether the employer’s belief was, in fact, truly honest.

— Tracey E. Diamond

Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

In New York, the law goes even further, providing that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. A patient with a prescription for medical marijuana in New York State is considered to have a “disability” under the New York State Human Rights Law.  This means that New York employers must provide reasonable accommodations to employees or prospective employees who are certified to use marijuana for medical reasons.

The Massachusetts Supreme Judicial Court recently ruled that employers may be held liable for disability discrimination under Massachusetts state law if they fire an individual for using medical marijuana. In that case, the employee was fired after her first day of work for failing a drug test, despite the fact that the employee had informed the company that her doctor has prescribed marijuana as a way to manage her Crohn’s disease.  The court held that using medical marijuana is as lawful as using any other prescription medicine, despite the fact that it is illegal under federal law.  Further, the court stated that it would be a reasonable accommodation for an employer to allow its employees to use medically-prescribed marijuana away from the employer’s place of business unless the employer can show undue hardship.

It is quite possible that the growing number of states that have enacted medical marijuana legislation will follow the lead of the New York legislature and the Massachusetts court in adding medical marijuana use – at least outside of the workplace – to the list of accommodations that are considered to be reasonable. That means that employers will not be able to rely on positive drug test results for marijuana for employees working in non-safety-related positions without engaging in the interactive process with the employee or applicant.  The employer will have to analyze whether the employee’s use of marijuana outside of working hours will prevent the employee from performing the essential functions of his or her job.  Moreover, the employer will want to monitor the employee to ensure that the accommodation does not impact the employee’s job performance.

– Tracey E. Diamond

 

Fighting Negative On-Line Reviews by Ex-Employees

Q.  A former employee has posted a negative review about our company on a social media website. Is there anything we can do about it?

A.  While social media is a powerful tool for promoting your company’s brand, negative reviews can be equally powerful in affecting the company’s reputation. When the negative review is by an employee or former employee, the review is particularly galling.

Unfortunately, employers have little recourse. While many employees have social media policies prohibiting employees from commenting about the company, the NLRB does not allow such policies to chill an employee’s ability to complain about the terms and conditions of employment on social media.  Moreover, the company’s ability to control social media activity ceases once the employee leaves the company or is terminated.

But there are a few things you can do. First, be sure to set an alert so that you are aware of all comments made about the company online.

If the post is made by a current employee, use this as a red flag that something may be amiss about the employment relationship. Meet with the employee and give him or her a chance to air his or her concerns.  Then ask the employee if he or she would be willing to take down the post and address the issue internally instead.

If you are offering a severance package to a departing employee, consider adding a nondisparagement clause to any separation agreement that would prohibit the former employee from making negative comments or otherwise denigrating the company’s reputation. Consider paying the severance over time, rather than in a lump sum, to create a disincentive for the former employee to violate the nondisparagement clause.

Assuming there was no written agreement and it is a former employee who is doing the negative posting, you will have to consider whether it makes more sense to ignore the post or respond to it. If you do choose to respond, be careful not to personally attack the individual, but instead focus on the comment and set the record straight.  While it is not a battle easily won, depending on how damaging the post is, you may also consider speaking with legal counsel about the possibility of an action for defamation.  Moreover, if the negative comment also reveals company trade secrets, you will need to analyze the situation with your counsel and consider sending a cease and desist letter and filing suit.

Finally, it is always best to take a proactive approach. Remind employees of the powerful impact social media can have on your business.  Encourage your employees to become a “brand ambassador” and  “like” the company on social media and share company achievements.  After all, a negative comment will have much less of an impact if it is surrounded by lots of positive, reputation-enhancing messages in cyberspace.

–Tracey E. Diamond

Profanity-Laced Social Media Posts May Be Permissible in the Context of a Union Organizing Campaign

Q.  Can I fire an employee for making disparaging comments about the company and its supervisors on social media?

A.  According to a recent Second Circuit opinion, if the social media post was made in the context of union organizing activity, then the answer likely is no. The National Labor Relations Act (“NLRA”) prohibits employers from terminating an employee based on that employee’s union-related activity. If the employee’s protected activity rises to the level of “opprobrious” or abusive conduct, however, it could lose the protection of the NLRA.   Nonetheless, the standard for a finding that the employee engaged in “opprobrious” or abusive conduct is quite high.

In NLRB v. Pier Sixty, LLC, an employee posted a Facebook message encouraging other employees to vote for the union and referred to his supervisor as a “loser” and a “motherf*cker.” The employee even went to so far as to disparage the supervisor’s family, posting:  “F*** his mother and his entire f***ing family!!!!”

The NLRB found that the comment did not rise to the standard of “opprobrious” conduct because it was made in the context of an upcoming union election. The Second Circuit agreed. According to the court, even though the employee’s message was dominated by vulgar attacks on the company’s supervisor and his family, the “subject matter” of the message included workplace concerns – management’s allegedly disrespectful treatment of employees and the union election. The court also noted that the company had demonstrated hostility toward the employees’ union activities, including threatening to rescind benefits and/or fire employees who voted for the union and enforcing a “no talk” rule preventing employees from discussing the union.

Further, the court considered it important that the company had tolerated profanity in the workplace on a daily basis, issuing only five warnings in six years and not discharging anyone for using profanity prior to the employee at issue. In addition, the court said that the supervisors, including the one whom the Facebook post was directed at, cursed at employees including using the “f” word on a daily basis. The court concluded that “it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity.”

Finally, and most disturbingly for companies trying to maintain their online reputations, the court concluded that, while Facebook posts may be visible to the entire world, “Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event.” Calling the case as sitting at the “outer bounds of protected, union-related comments,” the Second Circuit upheld the NLRB decision.

So, what does this mean for companies trying to maintain a professional workplace?

First, it crucial to apply discipline consistently.  If Pier Sixty had discharged other employees for using profanity outside of the union-organizing campaign – and prohibited its supervisors from cursing at staff – it would have had a much stronger argument that the Facebook message should not be tolerated.

Second, employers should tread carefully – and consult with counsel – before disciplining employees for social media activity, particularly in the context of union activity.

Tracey E. Diamond