NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

Further resarch in this protected employee rights led me to this press release from the NLRB:

"Settlement reached in case involving discharge for Facebook comments

February 08, 2011

Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

A settlement has been reached in a case involving the discharge of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page.

The NLRB’s Hartford regional office issued a complaint against American Medical Response of Connecticut, Inc., on October 27, 2010, alleging that the discharge violated federal labor law because the employee was engaged in protected activity when she posted the comments about her supervisor, and responded to further comments from her co-workers. Under the National Labor Relations Act, employees may discuss the terms and conditions of their employment with co-workers and others.

The NLRB complaint also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees, and that it had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The National Labor Relations Board is an independent federal agency vested with the authority to safeguard employees’ rights to organize and to determine whether to have a union as their collective bargaining representative, and to prevent and remedy unfair labor practices committed by private sector employers and unions."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

I began some further research. I next discovered that, according to the NLRB website, all employees, whether or not covered by a union, have certain rights:

"Employee Rights

Employees covered by the National Labor Relations Act are protected from certain types of employer and union misconduct and have the right to attempt to form a union where none currently exists....The law also protects employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits. These are known as protected concerted activities.

Some examples include:

----------------------

An employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions...... "

Thus, the question arose: could an employee be engaged in a protected concerted activity when he mutters "this is bulls!@#, this company sucks" in response to an HR representative ignoring the employee's request for information?

NLRB - Employee Rights

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

Based on my initial research, I submitted an application to reopen the default - when submitting such an application, it is suggested that you attach the default decision:

April 13, 2011

VIA FAX– 3 PAGES

UNEMPLOYMENT INSURANCE APPEAL BOARD
400 Oak Street
Garden City, NY 11530

Re: ALJ 011-XXXXX: IN RE: XXXXXX

Gentleman:

I am representing the claimant and on behalf of the claimant, request is made to reopen the attached decision.

The claimant defaulted due to the fact that XXX desired legal counsel. Having reviewed the file, it is clear that the claimant has a meritorious claim. Even assuming all of the allegations of the employer, I have gathered the necessary proof that the claimant’s acts did not constitute misconduct under the standards set by the 3rd Department in IN RE KEARNS, 65 A.D.3d 1416, 885 N.Y.S.2d 775 [3d Dept 2009] and by the Second Circuit Court of Appeals in FOX TELEVISION STATIONS v. F.C.C., 613 F.3d 317 (2nd Cir. 2010).

Accordingly, I request a hearing at the Garden City office at a date and time mutually convenient.

Sincerely,



Jon M. Probstein

cc: XXXXXXXXXXX

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

The Employer had a policy which prohibited the use of vulgar language. Thus, another case which I researched was FCC v. Fox Television Stations, a 2009 legal case in which the United States Supreme Court upheld regulations of the Federal Communications Commission that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary and capricious under the Administrative Procedure Act. It sent the case back to lower courts to consider constitutional issues. On July 13, 2010, the Second Circuit struck down the FCC regulations on First Amendment grounds for being "unconstitutionally vague, creating a chilling effect."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

This was the most recent case on the use of vulgar language and unemployment insurance from the Appellate Division, 3rd Department:

"IN RE KEARNS, 65 A.D.3d 1416 [3d Dept 2009]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 8, 2008, which, upon reconsideration, adhered to its prior decision ruling, among other things, that claimant was disqualified from receiving unemployment insurance benefits because he lost his employment due to misconduct.

Henry C. Kearns, Hamburg, appellant pro se.

Andrew M. Cuomo, Attorney General, New York City (Gary Leibowitz of counsel), for respondent.

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ., concur.

Claimant was employed as a sales associate at a retail furniture store. He made a derogatory comment about a customer while in the showroom when the customer began working with a female sales associate without disclosing that claimant had previously assisted her. He also informed the female sales associate of this fact and, when he thought she was not going to split the sales commission with him, he called her a derogatory name and indicated that he would no longer split sales commissions with her. Claimant's conduct was contrary to the employer's policy governing appropriate behavior in the showroom, which he had previously violated. He was terminated as a result. The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. The Board also charged him with a recoverable overpayment of benefits pursuant to Labor Law § 597 (4) and imposed a forfeiture penalty upon finding that he made a willful misrepresentation to obtain benefits. It adhered to this decision upon reconsideration and claimant now appeals.

We affirm. Initially, an employee's use of vulgar language or display of discourteous behavior in the workplace has been held to constitute disqualifying misconduct (see Matter of Rivers [Federation Empl. & Guidance Serv. — Commissioner of Labor], 44 AD3d 1191, 1192 [2007]). The same is true where, despite prior warnings, the employee violates the employer's known policy governing proper workplace behavior (see Matter of Wells [Commissioner of Labor], 29 AD3d 1257, 1257 [2006]). Here, abundant testimony was adduced at the hearing that claimant used profanity in the showroom while complaining about the customer and the female sales associate and that this was in violation of the employer's policy prohibiting the use of obscene language and interference with the performance of an employee's job duties. Claimant had been previously warned about making inappropriate statements in the presence of customers and coworkers. Although he denied using profane language, this presented a credibility issue for the Board to resolve (see Matter of Gigi Commissioner of Labor], 37 AD3d 894, 895 [2007]). To the extent that claimant falsely indicated when applying for benefits that he was unemployed due to a lack of work, substantial evidence supports the Board's finding that claimant made a willful misrepresentation to obtain benefits (see Matter of Franco [Commissioner of Labor], 15 AD3d 828, 829 [2005]). Therefore, we find no reason to disturb the Board's decision.

Ordered that the decision is affirmed, without costs."

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

Page 2 of the Notice of Decision - the claimant was not ready to proceed, sought counsel and the ALJ garnted leave to the claimant to make an application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

The Notice of Decision arrived. This is what will happen when a claimant is not ready to proceed and seeks counsel - the ALJ will require the claimant to make an application to reopen. Here is page 1.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

My research first led me to an April 13 news story headline "Federal Judge Says Middle Schoolers Can Wear ‘Boobies’ Bracelets to Raise Breast-Cancer Awareness" and I began to collect a number of words or phrases like "Boobies" that may be offensive to some and harmless to others. My list included the following, some of which have different meanings according to various dictionaries:

Tit
Bitch
Vagina Monologues
Hooters
Gay
Don’t know dick
S&M
Bastard
Fat Bastard (Phat Bastard – Austin Powers)
He’s screwing with us
Damm
Screwed
Jerking Off
Sucking Up
Ass kisser
Jackass
Going to the crapper
Pissed off
Feeling crappy
This is bull
Acting like an ass
Fudge
Nuts
Darn
Mother lover
Sonuva
A hole
Kiss my patootie
I’m pooped
Scum
Boobie prize
Hooker
Attention whore
Retarded
God
Jesus Christ
Allah
Sexy
F-inn
Boobs
Hell

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

I then began my research into what is appropriate language in the workplace. The answer was soon apparent: "that depends". What would be appropriate for the employees of this company after they see this ad from their employer?

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

The client obtained a copy of the file and, since this case was under the new appeal board rules regarding legal fees, I forwarded to the claimant the new form retainer for Appeal Board cases.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

The hearing date was just a day or so away and so it would not be possible for me to be present at the hearing.

Unfortunately, many claimants do not seek counsel when they get their notice of adverse determination. Some claimants, because they did not read the back of the notice or for other reasons, do not make a timely request for a hearing. Other claimants do make a timely request for a hearing but do not seek counsel until they are notified of the hearing date. This case involved the latter.

I instructed the claimant that:

1. The claimant would have to go to the ALJ office and obtain a copy of the file so I could review and research the issue.

2. After I review the file and research, I would advise the claimant whether or not I would agree to take on the matter.

3. In the meanwhile, the claimant would have to attend the hearing, advise the ALJ the claimant was not ready to proceed because the claimant was seeking counsel, and that an application to reopen would have to be made.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

The claimant advised me as follows:

1. The claimant worked at a large retail store for over 1 year.

2. The claimant wanted some information from the HR department regarding paperwork for a personal matter.

3. When the claimant spoke to the HR manager, the claimant felt that the HR manager was either ignoring the claimant or did not want to give the claimant the paperwork.

4. The claimant left the HR office and while in a hallway muttered to herself/himself: "This is bullshit, this company sucks".

5. Later that day, the claimant was called in by the claimant's supervisor and advised that employment was terminated immediately for violating company policy regarding inappropriate behavior and insubordination.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - VULGAR LANGUAGE - CASE NO. 5

This is a recent case and it deals with the issue of what language is appropriate in the workplace. In April 2011, I received a call from a claimant who was denied benefits on the ground of misconduct - specifically for muttering the words "bullshit" and "sucks" in the HR department of a retail store chain.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

I believe the key factor in the ALJ's decision was Exhibit 2 presented here again. The assertions by the employer's representative that they tried to reach their witness by fax (when the witness had no fax) instead of by phone and that they attempted to reach the ALJ office 3 times without any supporting witness or documents simply did not establish "good cause" for a default.

The merits of the case: without going into specific detail, it appeared that the claimant's company laptop was broken and the employer, although notified of the issue, failed to repair it. The claimant had to use a personal computer to upload company information. On one occasion, a mistake was made which would not have been made if the company laptop was repaired and, based upon this one incident, the claimant was terminated and the employer claimed "misconduct".

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

The last page of the decision issued on January 26, 2011 in favor of claimant.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Again, there were two days of hearings. A decision was issued on January 26, 2011 in favor of claimant. Rather than go into the details of the hearing, I am attaching the decision which addresses the issues. Here is page 2 (it states page 3 as the reverse of each page are instructions regarding appeal, etc.)

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

There were two days of hearings. A decision was issued on January 26, 2011 in favor of claimant. Rather than go into the details of the hearing, I am attaching the decision which addresses the issues. Here is page 1.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 9 was introduced by the claimant regarding the issue of misconduct. This is the employer's last evaluation of claimant, dated about a month before the claimant's discharge. As you will see, it was a positive evaluation and did not bring up any of the circumstances regarding the employer's claim of misconduct. This is page 3.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 9 was introduced by the claimant regarding the issue of misconduct. This is the employer's last evaluation of claimant, dated about a month before the claimant's discharge. As you will see, it was a positive evaluation and did not bring up any of the circumstances regarding the employer's claim of misconduct. This is page 2.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 9 was introduced by the claimant regarding the issue of misconduct. This is the employer's last evaluation of claimant, dated about a month before the claimant's discharge. As you will see, it was a positive evaluation and did not bring up any of the circumstances regarding the employer's claim of misconduct. This is page 1.

TODAY - AN HONOREE

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Again, exhibit 8 is almost always introduced in every hearing in which claimant's right to benefits is in issue. The employer is sent a questionnaire (Form MC99) asking for information about the claimant's discharge. Here is the second page in this case.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 8 is almost always introduced in every hearing in which claimant's right to benefits is in issue. The employer is sent a questionnaire (Form MC99) asking for information about the claimant's discharge. Here is the first page in this case.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 6 of Exhibit 7 - which is the employer's statement of the violation which formed the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 5 of Exhibit 7 - which is the employer's statement of the violation which formed the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 4 of Exhibit 7 - which is the acknowledgment of the claimant's receipt of the employer code of conduct, the violation of which formed the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 3 of Exhibit 7 - which is the first page of the employer code of conduct forming the basis of the employer's claim of misconduct as set forth in the April 1, 2009 application to reopen.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 2 of Exhibit 7 - which is the envelope used for sending the April 1, 2009 application to reopen. However, when an employer utilizes a self postage machine, as in this case, it may bring into question as to whether the item was actually mailed on the date of the self postage machine. Most experts agree that it is almost impossible to detect postal-meter fraud based on the numbers appearing in a printed stamp but with most machines, it is very difficult to backdate a postage meter. When the timeliness of a mailing becomes an issue in these cases, the use of an expert is not cost-effective and the employer will usually testify that it is common business practice not to back date and that items are mailed on the same day stamped.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Exhibit 7 appears to be the same as Exhibit 3 but with certain attachments dealing with the allegations of misconduct. Here is page 1. Note the difference in font size which results in a change of formatting on the second to last paragraph.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - REOPENING DEFAULT - CASE NO. 4

Here is page 3 of Exhibit 6 - DOL's Application Claimant Information Screen. This page has information on the claimant's previous employer who is part of the claimant's base period but did not raise any objection to the claimant's claim for benefits.