If you read this blog (or just about any other labor and employment law blog), you know that social media policies have fallen under recent heightened scrutiny because of the chilling effect they could have on employees discussing terms and conditions of employment (e.g., wages, hours, etc.) with each other online. Where there is no controversy, however, is that companies may discipline employees who shirk their job responsibilities and goof of online — especially while on the clock.
After the jump, it’s a decision from the Commonwealth Court of Pennsylvania denying unemployment compensation benefits to a nurse who was fired for using Facebook at work while she should have been medicating patients.
The case is Chapman v. Unemployment Compensation Board of Review. You can view a copy of the opinion here. The facts of Chapman are as follows:
- Chapman’s employer, Lifequest Nursing Center, had a progressive disciplinary policy, however, Lifequest could immediately discharge an employee created a life threatening situation;
- Lifequest also had a policy prohibiting the use of cell phones while on duty;
- Chapman was aware of the cell phone policy as she had been warned for violating the policy on Jun 2, 2009;
- On November 14, 2009, Chapman used her personal cell phone to post comments on her Facebook page about a coworker who had accidentally soiled her pants at work;
- Lifequest discovered the comments and investigated Chapman’s work activities at the time the comments were posted;
- Lifequest’s records indicated that Chapman had been distributing medications to patients while the comments were posted;
- Lifequest confronted Claimant and she admitted posting the comments using her cell phone while on duty, and did not assert that she was on a break when the comments were posted; and
- Lifequest discharged Chapman for engaging in conduct that could cause a life threatening situation by using her cell phone while distributing patient medications.
The Unemployment Compensation Board of Review determined that Chapman had engaged in willful misconduct and, therefore, was ineligible for employment compensation benefits:
The claimant was aware of the employer’s policy prohibiting the use of cell phones while on duty, yet she violated that policy despite having been previously warned for doing so. The employer credibly explained that it may advance through the progressive disciplinary policy and immediately discharge where the employee engages in conduct that could create a life threatening situation. The Board further credits the employer’s testimony that the claimant admitted to using her cell phone while on duty, and that she made no verbal assertion of being on a break at the time the comments were posted. The employer’s documentation further corroborates that the claimant was actively engaged in the distribution of patient medications while using her cell phone for a menial purpose. The claimant’s distraction with the cell phone certainly could have placed patients at risk of serious harm. As such, the Board concludes that the employer has met its burden of proving willful misconduct in connection with the claimant’s discharge. The Board discredits the claimant’s assertion that she was on a break when she used her cell phone. Accordingly, she has not justified her conduct.
The Commonwealth Court found that the evidence supported the Board’s findings regarding the existence Lifequest’s policy prohibiting the use of cell phones while on duty, the reasonableness of the policy, Chapman’s awareness of the policy, and the fact of its violation.
Decision affirmed. No benefits for Chapman.
Three takeaways for employers.
- Develop a social media policy. Lifequest caught a break. There was no evidence in the record that Lifequest had a social media policy. However, the facts showed that Chapman used her cell phone — for which Lifequest did have a policy — to access Facebook. Does that mean that, absent a cell phone policy, Lifequest could not have fired Chapman? No, not if Chapman was an at-will employee. An at-will employee in Pennsylvania can be fired for any reason or no reason at all. However, when it comes to unemployment compensation, the litmus test is willful misconduct. Absent a policy, Chapman is getting benefits.
- Promulgate the policy. That seems fairly obvious. Why have a policy if it isn’t communicated to employees and employees aren’t then trained on the policy? But, I have to tell you. I see that scenario too often, especially in the anti-harassment context. The employer updates its anti-harassment policy and either fails to distribute the policy or does not train employees on the changes to the policy. In some states, the employer may be able to avoid liability by just disseminating a policy. In other states — like New Jersey — an anti-harassment policy alone, without training, may not be enough to defeat a discrimination claim.
- When employees mess with the bull, give ’em the horns. If you have a policy, employees know about the policy, get trained on the policy, and understand the policy, violators should be disciplined. I’m not saying that every offense is a firing. I’m not saying that at all. But every offense should be met with documented discipline, if only a verbal warning.
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