Wednesday, October 9, 2013

NEW YORK UNEMPLOYMENT INSURANCE - EFFECT OF BLAND V. ROBERTS

This was a recent case Bland et al v. Roberts, 4th U.S. Circuit Court of Appeals, No. 12-1671, in which the 4th U.S. Circuit Court of Appeals ruled in favor of a former deputy sheriff in Hampton, Virginia, who claimed he lost his job in retaliation for his "liking" the Facebook page of a candidate running against his boss for city sheriff:

"Liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it....It is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

How does this apply to Unemployment Insurance and misconduct?  Here is a case decided prior to BLAND: In Mailed and Filed: AUGUST 25, 2011, IN THE MATTER OF: Appeal Board No. 553929:

"The evidence further establishes that the claimant was discharged on January 26, 2010 after the employer learned that she had posted derogatory comments as well as comments that could be perceived as threatening regarding coworkers on her "Facebook" page on January 19. The employer contends the claimant's conduct violated the employer's policy. However, the portions of the policy at issue, prefaced by the language "For the benefit and safety of employees, clients, and the Organization", clearly pertain to employee conduct in the office. Further, we are not convinced that the claimant could have known from the language of the policy that her personal "Facebook" postings would jeopardize her employment.

We note that while the claimant acknowledged that she made the comments, she also credibly testified that she did not intend for any of her coworkers to be able to access her "Facebook" page, and therefore could not have intended to offend or threaten her coworkers. We also find it significant that neither the employer nor the coworkers are named in the claimant's postings, and that the claimant had received no warnings regarding similar conduct during her seven and a half-year employment, Further, it is credible that the claimant's comments were made in jest, and that she did not mean the exaggerated and outlandish remarks made.

Accordingly, while the Board does not condone such conduct by the claimant, the employer's policy regarding employee conduct was too broad to put the claimant on notice that comments on her personal social networking page, that were made in jest and did not specifically identify either the employer by name or the names of her coworkers, was not sufficient to put the claimant on notice that her conduct could result in her discharge. Absent a specific policy that would provide such notice to an employee, we find that the claimant's conduct - while demonstrating extremely poor judgment - did not constitute misconduct for unemployment insurance purposes. We conclude that this claimant was separated from employment under non disqualifying circumstances."

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