Talbot v. Desert View Care Center (June 20, 2014)
Joseph Talbot worked at Desert View Care Center as a nurse and was discharged due to a Facebook post that Desert View found violated its Social and Electronic Media Conduct Policy. Talbot applied for unemployment benefits, and the Idaho Industrial Commission concluded that Talbot engaged in employment-related misconduct, denying him benefits. Talbot appealed to the Idaho Supreme Court, arguing that Desert View never communicated its Social Media Policy to him. The Idaho Supreme Court affirmed the denial of benefits.
Desert View employed Talbot as a full-time licensed practical nurse from July 5, 2012, until February 2, 2013. After a shift in January 2013, Talbot posted the following on Facebook:
Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.
Someone reported the post to Desert View. Desert View’s Social Media Policy required employees to:
treat physicians, providers, vendors, conservators, regulators, competitors, fellow employees, managers, and the family members of our patients with respect electronically, as well as in-person. . . . employees will at all times avoid slanderous, vulgar, obscene, intimidating, threatening or other ‘bullying’ behavior electronically towards any of the groups identified above or towards other facility stakeholders.
While Talbot argued that he never read the policy, he did acknowledge receiving the policy and agreeing to abide by it, by signing an acknowledgement when the policy was issued. Desert View terminated his employment for violation of the policy.
The Industrial Commission found that Desert View had communicated its Social Media Policy to Talbot and Talbot’s conduct violated that policy’s standard, justifying a discharge for employment-related misconduct. The Idaho Supreme Court agreed.
Under Idaho law, a person is not entitled to unemployment benefits if “he was discharged for misconduct in connection with his employment.” Idaho Code § 72-1366(5). Employment-related misconduct is (1) a willful, intentional disregard of the employer’s interest; (2) a deliberate violation of the employer’s reasonable rules; or (3) a disregard of a standard of behavior which the employer has a right to expect of his employees.
The Commission decided against awarding Talbot benefits under the third prong of the misconduct test, the “behavior” standard. A violation of the behavior standard requires employers to prove that (1) the employee’s conduct fell below the employer’s expected standard of behavior; and (2) the employer’s expectations were objectively reasonable under the circumstances.
The test’s first prong addresses what the employer subjectively expected, and the second prong considers whether the employer’s expectations were reasonable under the circumstances. An expectation is reasonable under the circumstances when it is communicated to the employee, unless that expectation flows naturally from the employment relationship. There is no requirement that the claimant’s conduct be willful, intentional, or deliberate. The claimant’s subjective state of mind is irrelevant. Talbot argued that Desert View did not meet the standards of behavior test because it never communicated the Social Media Policy to him.
The Idaho Supreme Court held that Desert View met the first prong of the behavior test because Desert View had an expectation that its nurses would not make threatening statements about a patient on Facebook, which was supported by its Social Media Policy. Despite Talbot’s argument that he did not know what he was signing for when he acknowledged the Social Media Policy and did not know that the policy applied to Facebook posts, the Court held that Talbot’s signed acknowledgement that he had received and agreed to the Social Media Policy was competent evidence that Desert View had communicated its policy to Talbot.
Employers must be aware of all of the pitfalls associated with disciplinary action associated with employees’ use of social media. There are numerous considerations associated with social media policies and consequences for their violation. The National Labor Relations Board has taken a keen interest in both unionized and nonunionized employers’ disciplinary and termination decisions where the employees’ social communications could even remotely be considered concerted activity under the National Labor Relations Act. The EEOC has begun inquiries into employers’ use of social media in their hiring processes, and there are many, many more ties to employment laws with which employers must be familiar.
We will be hosting a free seminar this fall on social media’s impact on employment followed by a Social “Media” Hour with hors d’oeuvres and drinks. We will update our website with the date, time, and location as soon as we have those details finalized.