In a ruling examining the interplay between social media and the workplace, the Rhode Island Supreme Court has held in a split decision that there was insufficient evidence to show an employee’s Facebook post was “connected with his work” so as to disqualify him for unemployment benefits under G.L. §28-44-18.
The statute provides, in relevant part, that “an individual who has been discharged for proved misconduct connected with his or her work shall become ineligible for … benefits.”
In writing for the majority, Chief Justice Paul A. Suttell noted the uniqueness of the case, pointing out that the court had yet to consider the issue of alleged employee misconduct involving social media and whether it was connected to the workplace.
While there was insufficient evidence in the record speaking to factors that the court found could be relevant, Suttell said the post did not specifically identify the employer or manager by name, and the employee’s Facebook page was not accessible to his supervisor or his colleagues.
“Legally competent evidence that [the employee’s] Facebook post was connected to his work in the manner contemplated by §28-44-18 is not present in the record before us,” Suttell wrote.
Limited to narrow facts
Richard A. Sinapi, who represented the claimant employee, said the well-settled parameters of appellate review played into the holding.
“In one sense, the holding is a textbook limited judicial determination, relying on the rules of appellate review that there were insufficient facts in the record to support the findings of the board below,” the Warwick lawyer said.
“In another sense, it is groundbreaking in saying that limited access to Facebook is not public,” Sinapi added. “The justices recognized the fact that just because we express our thoughts and ideas through social media does not convert them to a public pronouncement.”
Looking at the issue more broadly and echoing a concern of the trial court judge, Sinapi asked, “How could the state encourage employers to be Big Brother by proxy? That is a grave danger, and it would have a chilling effect on employee communications and First Amendment rights generally if the state were to get involved with penalties for free expression.”
In concluding that the employee’s conduct was not connected to the workplace, the justices did not reach Sinapi’s briefed arguments on employee protections offered by the First Amendment and the National Labor Relations Act.
“But the court didn’t need to go down that path,” Sinapi said. “They only decided what they had to.”
Robert E. Savage, also a Warwick attorney, said even if it had been determined that the Facebook post was connected to the claimant’s employment, it would have been considered a concerted activity under the NLRA, “where you’re speaking not just for yourself but for others. It’s not ever legal for an employee to be fired for that, so how can it be misconduct?” he asked.
Savage agreed that the holding in Beagan is an appropriately narrow one.
“The takeaway is that the decision is limited to protecting employees who post on social media to a restricted audience and who don’t name their employer,” he said.
First Amendment and concerted activity protections may be ripe for examination in the next case presenting such issues, he said, perhaps in the instance of a blog open to everyone or in which the employer is specifically identified.
For Matthew C. Reeber, an employment lawyer at Pannone, Lopes, Devereaux & O’Gara in Johnston, the fact-specific holding means that the court was not making a broad-based proclamation on the use of Facebook.
Reeber added that previous decisions finding a workplace connection with the use of Facebook (for example, in cases in which employees shared confidential information or made disparaging remarks to each other about clients) would withstand scrutiny under Beagan.
At the same time, he said, the court’s discussion seems to offer guidance to the District Court on factors to consider in future cases.
The primary lesson for employers is to document the policies that employees are accused of violating, whether they concern social media or insubordination, according to Reeber.
“It’s the employer’s burden to show misconduct, and the policy that was violated needs to be in the record,” he said.
Attorneys for the state, Donald G. Elbert of Providence and Valentino D. Lombardi of North Providence, did not respond to requests for comment.
“It’s the employer’s burden to show misconduct, and the policy that was violated needs to be in the record.”
— Matthew C. Reeber, Johnston, Rhode Island
A ‘slender reed’
Michael J. Beagan, a delivery driver at Albert Kemperle, disagreed with a new company policy and complained about it to his manager, Henry Morancey.
After the two “had some words,” Morancey called Beagan into his office to terminate him for his refusal to sign the policy, but gave him a warning instead when Beagan grew teary-eyed.
As he was leaving the meeting to make deliveries, Beagan commented that he could “write whatever he wants on Facebook” because he had blocked Morancey from viewing his posts. His curiosity piqued, Morancey later had someone else log onto Facebook to bring up Beagan’s page, which had offensive comments about his “boss.”
When Beagan returned from his morning deliveries, Morancey fired him.
Beagan’s subsequent claim for unemployment benefits was denied by the Rhode Island Department of Labor and Training. That decision was affirmed on appeal by a referee, who determined that Beagan’s misconduct in being insubordinate and acting against his employer’s best interest made him ineligible for benefits under §28-44-18.
The full review board affirmed the referee’s decision.
A District Court judge then affirmed the board’s finding, concluding that the Facebook post constituted misconduct or insubordination and was sufficiently “connected” to Beagan’s work so as to disqualify him from benefits under the statute.
Acknowledging that the claimant’s online actions were connected to his work only by a “slender reed” and that such a finding posed the danger of inviting management to monitor their employees’ social media accounts, the judge was swayed by the fact that Beagan “baited” Morancey into searching his Facebook page. That took the matter into the workplace, the judge found.
Showing connection with workplace
The Supreme Court majority disagreed with the trial judge’s holding and ordered the payment of benefits. It limited its analysis to the “connected to work” prong of §28-44-18.
In declining to closely examine the nature of the alleged misconduct, the majority said that the question was not whether Beagan was properly terminated from his employment.
“Instead, our task is to examine the record to determine if any legally competent evidence exists therein to support a finding that Beagan was ineligible for unemployment benefits,” Suttell wrote.
And in making that examination, the court reviewed several factors and could not find evidence sufficient to connect Beagan’s social media account to his workplace.
Beyond the questions of whether the post specifically identified Kemperle or Morancey and whether it was generally accessible, Suttell said that there was insufficient evidence in the record to determine whether Beagan authored the post on an electronic device belonging to his employer or whether the content of the post related to his job performance.
Further, Beagan’s denial that he made the Facebook posts while on the road was not refuted by Kemperle, and the chief justice said that the company’s social media policy, if it existed, was not introduced.
Rejecting the trial court judge’s “baiting” rationale, Suttell wrote that “[g]iven all of these facts, we are of the opinion that Beagan’s statement to Morancey that he did not have access to Beagan’s Facebook page alone does not support a finding that the Facebook post was connected with Beagan’s work.”
With that holding, Suttell concluded, “We need not delve into the misconduct prong of the §28-44-18 analysis.”
In a dissent, Justice Maureen McKenna Goldberg focused on the scope of the Supreme Court’s review, writing that it was limited to an examination of the certified record and that the majority “has exceeded the boundary of certiorari review and erred in failing to defer to the findings made by the board and affirmed by the District Court.”