conduct connected with his or her work” is disqualified from receiving unemployment compensation benefits.
f 2 The material facts are established by the findings of fact. Black worked as a full-time, permanent, nonunion security officer for PSSP from December 2010 to February 2012. She worked the graveyard shift at the Tacoma Public Utilities (TPU) building. In the course of her duties, Black routinely interacted with a wide range of people, including police officers.
u kno wat, I do not give a f [***] about a police officer that got shot, if they quit fu[*]kin wit ppl, ppl prolly quit shootin em all the goddamn time.......karmas a bitch.[2]
¶4 “Generally speaking, a post from an individual’s profile will appear in another user’s news feed if that user has connected with the individual on Facebook by creating a ‘friend’ relationship, generally referred to as ‘friending’ another user.”
¶5 Black posted this message on Facebook while she was at home, not on duty. She had set her Facebook privacy level so that her posts were accessible only to the approximately 100 people designated as her “friends” on Facebook. Members of the public and others not listed as “friends” could not view her posts.
|6 One of Black’s Facebook “friends,” a TPU employee, disagreed with the post but did not tell Black that he was going to tell anyone else about it. He sent a copy of the message to TPU’s customer service department, which then notified Black’s supervisor. Black’s supervisor notified PSSP’s chief executive officer and executive vice president for employee relations.
f 7 When confronted, Black told her supervisor that she had the right to express an opinion when she was not at work and that her Facebook settings were private. PSSP did not then have any specific social media policies or guidelines with respect to Facebook or other social media sites. And the company had not given Black or other employees instructions regarding communications on such channels of communication. PSSP discharged Black.
f 8 Black applied for, and received, unemployment compensation benefits. The Employment Security Department determined that there was no disqualifying misconduct by Black.
|9 PSSP appealed, and an administrative law judge (ALJ) entered an order affirming the Department’s decision. PSSP petitioned the Department’s Commissioner for review. The Commissioner adopted the ALJ’s findings of fact and conclusions of law and affirmed the initial order.
f 10 PSSP appealed to King County Superior Court. The court affirmed the Commissioner’s decision and denied PSSP’s motion for reconsideration.
fll PSSP appeals.
DISQUALIFYING MISCONDUCT
¶12 PSSP argues that the Commissioner erred in concluding that Black did not commit disqualifying misconduct. We hold that PSSP fails in its burden to show that the Commissioner’s action was invalid.
¶13 The Employment Security Act exists to provide compensation to individuals who are involuntarily unemployed “through no fault of their own.”
f 14 Judicial review of a decision made by the Commissioner of the Department is governed by the Washington Administrative Procedure Act (WAPA).
¶15 The Commissioner’s decision is prima facie correct.
¶16 This court reviews findings of fact to determine whether they are supported by substantial evidence.
¶17 The application of law to the facts is a question of law that this court reviews de novo.
¶18 Whether a claimant engaged in misconduct connected with work is a mixed question of law and fact.
Work Connected
¶19 PSSP argues that the Commissioner erred when it concluded that Black’s conduct was not connected to work. We disagree.
¶20 Whether off-duty conduct is work connected for purposes of qualifying for unemployment compensation benefits was first addressed by the supreme court in Nelson v. Department of Employment Security.
¶21 Her employer discharged her based on concern about her trustworthiness in handling cash and a fear her conviction would adversely affect her relationship with other employees of the publishing company.
¶22 The supreme court concluded that the claimant in Nelson was entitled to unemployment compensation benefits.
¶23 For the third element, the court held that the conduct cannot be impliedly contracted between employer and employee. Rather, it “must be the subject of a contractual agreement between employer and employee” though it need not be a formal written contract.
¶24 Importantly, the question before this court is not whether Black should have been terminated from her job. Rather, the question is whether the Commissioner properly concluded that Black was eligible to receive unemployment compensation benefits under the Employment Security Act.
¶25 As counsel for the Department conceded during oral argument at the superior court when asked whether Black’s post was defensible:
[DEPARTMENT COUNSEL]: No, Your Honor. And I agree, it was offensive and despicable. The problem is, it wasn’t sufficiently connected with her work to constitute misconduct that should disqualify her from receiving unemployment benefits. And as Your Honor has correctly indicated, the question isn’t: Did this employer have the right to fire her? Absolutely, they did. The question is: Did they fire her for misconduct as it’s defined by the Employment Security Act such that she should not get unemployment benefits? And the statute for misconduct says you’re disqualified if you’re discharged for misconduct that’s connected with your work. And that’s also what it says in the Department’s regulations.[35]
¶26 Here, adopted findings of fact 3, 4, 5, and 8 establish the factual basis to determine whether Black’s post was work connected.
¶27 In finding of fact 3, the Commissioner found, in relevant part, that “[Black] posted the message from home, when she was not on duty.”
|28 In finding of fact 4, the Commissioner found, in relevant part, that Black “had set her Facebook privacy level so that her . . . postings were only accessible to the approximately 100 people designated as her friends on Facebook. Members of the public and others not listed as friends could not view her [post].”
f29 In finding of fact 5, the Commissioner found, in relevant part:
[Black’s] message was an expression of a personal opinion that did not include any reference to [PSSP], to [TPU], or to her job as a security officer. She did not intend to communicate her opinion to [PSSP], to [TPU], or to anyone not on her list of friends. The person who reported her message to [TPU] had disagreed with [Black] in a blog posting but had not told [Black] that he was going to tell anyone else about it. [39]
¶30 PSSP challenges this finding, but it, too, is supported by substantial evidence. Black testified that she made the post because it was her “personal feelings upon reading the news that day.”
¶31 In finding of fact 8, the Commissioner found, in relevant part, “[PSSP] did not have any specific social media policies or guidelines and had not given [Black] and other employees instructions with respect to communications on Facebook or similar channels of communication.”
¶32 Based on the above findings, the Commissioner affirmed conclusion 10 of the ALJ’s order, which stated in relevant part:
10. Based on the above findings and pursuant to the above referenced authority, [PSSP] has not met its burden of proof with respect to misconduct. There is no evidence of a nexus between [Black’s] blog post and her work. It was sent from her home when she was not at work. It made no reference to [PSSP], to TPU, to her job, or to her position as a security officer____[Black] sent the message only to the individuals who were within the privacy settings she had established in Facebook. She did not intend to send the message to [PSSP] or to others. Further, none of [PSSP’s] general policies, rules, or instructions addressed social media communications in any way and the policies, rules, and instructions that were in place were very general and for the most part specifically govern conduct at the workplace or on the job. . . . [Black’s] actions therefore do not violate a code of behavior contracted for between [PSSP] and [Black]. [PSSP] made numerous arguments for why [Black’s] behavior impliedly violated their general policies, but implied behavior is not the standard that must be applied. Accordingly [Black] is not subject to disqualification under RCW 50.20.066.[43]
¶33 First, consistent with the directive of Nelson, the Commissioner properly concluded that there was “no evidence of a nexus between [Black’s post] and her work.”
¶34 Second, again consistent with Nelson, the Commissioner properly concluded that Black did “not violate a code of behavior contracted for between [PSSP] and [Black].”
¶35 Further, the Commissioner also properly concluded that Black “did not intend to send the message to [PSSP] or to others.”
¶36 In sum, PSSP failed to establish the first and third required Nelson elements. The Commissioner, whose decision is prima facie correct, properly concluded that Black’s post on Facebook was not work connected.
|37 PSSP makes several arguments that Black’s conduct was work connected. None are persuasive.
¶38 First, PSSP claims that the Commissioner erred in finding insufficient nexus because “[c]onduct is connected with one’s work if it ‘results in harm or creates the potential for harm to [PSSP’s] interest.’ ”
¶39 PSSP also relies on the same administrative regulation to argue that harm to the employer can include the potential for harm. Thus, it argues that it was an error of law to require evidence of “specific harm.” With this argument, PSSP refers to a portion of conclusion 10 where the Commissioner concluded, “While the offensive content of the [post] had the potential to harm [PSSP’s] relationship with it’s [sic] client, there is no evidence of specific harm here as [PSSP] immediately discharged [Black].”
¶40 As the Department correctly concedes, this portion of conclusion 10 was erroneous. WAC 192-150-200(2) provides that “the action or behavior is connected with [a person’s] work if it results in harm or creates the potential for harm to [the] employer’s interests.”
¶41 Next, PSSP argues that Black “violated a company rule requiring courtesy, and the policies requiring positive relationships with law enforcement.”
¶42 PSSP relies on WAC 192-150-210(4), which states that “[a] company rule is reasonable if it is related to [the person’s] job duties, is a normal business requirement or practice for [the] occupation or industry, or is required by law or regulation.” And it argues that the rule requiring professionalism, courtesy, and respect “reasonably related to [Black’s] job duties because the client whom she was assigned to protect included law enforcement and because a security guard’s relationship with law enforcement is so important.”
¶43 PSSP also argues that the following portion of conclusion 10 is arbitrary and capricious: “The fact that [PSSP] deemed it necessary to tell [Black’s] co-workers after she was discharged that nothing they said on Face-book should be considered private shows that this was not a rule or instruction that had been contracted for with employees prior to her discharge.”
¶44 PSSP next argues that the “law governing employment benefits does not require a specific intent to harm.”
¶45 PSSP relies on Griffth v. Employment Security Department and Hamel v. Employment Security Department to support this argument.
¶46 PSSP also argues that findings of fact 4 and 5 conflict. It alleges that the fact that one of Black’s Facebook “friends,” a TPU employee, saw the post, contradicts the fact that Black did not intend to communicate her opinion to TPU. But these findings do not necessarily conflict. Black could intend to communicate the post to her Facebook “friends” and not intend for her Facebook “friends” to communicate the post to TPU. The fact that one of her Facebook “friends” was a TPU employee does not mean Black intended for that friend to communicate the post to his employer.
¶47 Finally, for the first time in its reply brief, PSSP argues that the Department’s regulation, WAC 192-150--200, “replaces or refines the Nelson test.” This argument is untenable.
¶48 WAC 192-150-200(2) provides that an action or behavior is connected with work “if it results in harm or creates the potential for
¶49 As the Department correctly argued at oral argument of this case, the three elements of Nelson remain the law. The mere establishment of either harm or potential for harm is insufficient to satisfy the other two elements of the Nelson test. Any other reading conflicts with Nelson, which remains the law of this state.
¶50 To summarize, because PSSP failed to establish the first and third Nelson elements, the Commissioner properly concluded that Black’s conduct was not work connected. Based on this threshold determination, the question of whether the Facebook post constituted statutory misconduct is not material to the outcome.
Misconduct
¶51 PSSP next argues in its briefing that the Commissioner erred when it concluded that Black did not commit misconduct. PSSP contends that Black committed statutory misconduct under RCW 50.04.294. But at oral argument, PSSP appeared to concede that misconduct would not be material to the outcome of this case if it failed to establish that the conduct here was work connected. Nevertheless, we reach the issue of misconduct to be clear and complete in this case.
|52 RCW 50.04.294(1) provides a nonexhaustive list of “misconduct”:
(a) Willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee;
(b) Deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee;
(c) Carelessness or negligence that causes or would likely cause serious bodily harm to the employer or fellow employee; or
(d) Carelessness or negligence of such degree or recurrence to show an intentional or substantial disregard of the employer’s interest.
Subsection (2) provides that certain acts are misconduct per se because they “signify a willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee.”
¶53 PSSP places in issue in its briefing on appeal only subsections (l)(b), (l)(d), and (2)(f) of the above statute.
RCW 50.04.294(l)(b)
¶54 First, PSSP argues that Black’s conduct met the statutory definition of “misconduct” under subsection (l)(b). Under this subsection, misconduct may include “ [d] e-liberate violations or disregard of standards of behavior which the employer has the right to expect of an employee.”
¶55 As the Department points out, PSSP has a right to expect professionalism and courtesy at the workplace. But PSSP does not explain why it has a right to expect these standards of behavior when the employee is off-site and off-duty. And PSSP fails to provide any support for this argument. Accordingly, it fails to show misconduct under this subsection.
¶56 PSSP cites RCW 18.170.170 and RCW 18.235-.130(4), which provide examples of “unprofessional conduct.” PSSP cites to one subsection in particular, which states that “[i]ncompetence, negligence, or malpractice that results in harm or damage to another or that creates an unreasonable risk of harm or damage to another” constitutes unprofessional conduct.
RCW 50.04.294(l)(d)
¶57 Second, PSSP argues that Black’s conduct met the statutory definition of “misconduct” under subsection (l)(d). Under this subsection, misconduct may include “[c]arelessness or negligence of such degree or recurrence to show an intentional or substantial disregard of the employer’s interest.”
¶58 While Black’s post was contrary to PSSP’s interests, PSSP fails to articulate how it was an “intentional or substantial disregard” of its interests. In fact, the Commissioner found that Black “did not intend to communicate her opinion to [PSSP], to [TPU,] or to anyone not on her list of friends.”
¶59 Further, as the court also found, Black had set her Facebook privacy level so that her post was accessible only to the approximately 100 people designated as her “friends.” Members of the public and others could not view the post. And Black did not refer to her employer, to TPU, or to her job as a security officer. PSSP fails to explain how, in light of these facts, Black did not exercise the care that a reasonably prudent person exercises.
f 60 PSSP points out that Black’s post was visible to a TPU employee and argues that the post “caused embarrassment and damage to the business relationship.”
RCW 50.04.294(2)(f)
¶61 Third, PSSP argues that Black’s conduct met the statutory definition of misconduct under subsection (2)(f). Under this subsection, misconduct may include “[v]iolation of a company rule if the rule is reasonable and if the claimant knew or should have known of the existence of the rule.”
¶62 Black did not commit disqualifying misconduct under this subsection for the same reasons that the court properly concluded that the third Nelson element was not met. Specifically, unchallenged finding of fact 8 establishes that Black did not violate any company rule related to social media posts. Further, PSSP fails to show how the policies and rules requiring professionalism, courtesy, and respect reasonably extend to off-site, off-duty social media posts.
|63 In sum, PSSP fails to show that Black committed misconduct.
f64 PSSP relies on Smith v. Employment Security Department.
¶65 In its reply brief, PSSP asserts for the first time that other jurisdictions have denied benefits in similar circumstances.
EVIDENTIARY RULING
¶66 PSSP argues that it was deprived of its due process right to cross-examine Black. We hold there was no abuse of discretion in the evidentiary ruling limiting the scope of cross-examination.
|67 PSSP fails to provide any authority to support the proposition that this evidentiary decision rises to the constitutional magnitude of due process. In the absence of such authority, we assume there is none.
¶68 Decisions regarding the scope of cross-examination are normally evidentiary rulings left to the sound discretion of the trial court.
¶69 Here, the Commissioner properly concluded that the ALJ properly sustained objections, based on relevancy, on cross-examination questions about the history of Facebook’s privacy settings and the dissemination of information on the Internet. The ALJ noted that Black testified that her Facebook privacy settings were limited to her “friends” and there was no evidence that the information came to anyone’s attention other than through one of Black’s Facebook “friends.” Accordingly, the ALJ stated, there was “no basis for this broad, somewhat academic discussion of the functioning of the Internet.”
¶70 PSSP relies on Baxter v. Jones.
¶71 We affirm the superior court’s decision affirming the Commissioner’s decision and denying PSSP’s motion for reconsideration.
Lau and Leach, JJ., concur.
Review denied at
Notes
RCW 50.20.066(1).
2 Administrative Record at 306.
Andy Taylor, Friending and Following: Applying the Rules of Professional Conduct to Social Media, 34 U. Ark. Little Rock L. Rev. 551, 556 (2012).
RCW 50.01.010.
RCW 50.20.066(1).
Ch. 34.05 RCW; Tapper v. Emp’t Sec. Dep’t,
Tapper,
Verizon Nw., Inc. v. Emp’t Sec. Dep’t,
ROW 50.32.150.
Id.; ROW 34.05.570(l)(a).
RCW 34.05.570(3)(d), (e), (i).
Barker v. Emp’t Sec. Dep’t,
William Dickson Co. v. Puget Sound Air Pollution Control Agency,
Fuller v. Emp’t Sec. Dep’t,
Terry v. Emp’t Sec. Dep’t,
Smith v. Emp’t Sec. Dep’t,
Tapper,
Hamel v. Emp’t Sec. Dep’t,
Id. at 371.
Id.
Id.
Id.
Id.
Id. at 371-72.
Id. at 372.
Id. at 375.
Id. at 373-75.
Id. at 375.
Id. at 374.
Id.
Id.
Id.
See Tapper,
35 Report of Proceedings (June 25, 2013) at 16 (emphasis added).
Administrative Record at 306.
Id. at 133; see also id. at 235.
Id. at 306.
39 Id.
Id. at 132.
Id. at 133.
Id. at 307.
48 Id. at 310 (emphasis added).
Id.
Id.
See Nelson,
Administrative Record at 310.
Id. at 306.
See Nelson,
Brief of Appellant at 29 (emphasis omitted) (quoting WAC 192-150-200(2)).
Nelson,
Id.
Administrative Record at 310.
(Emphasis added.)
Brief of Appellant at 27.
Id. at 28.
Brief of Appellant at 28.
Reply Brief of Appellant at 12 (citing Administrative Record at 310).
Brief of Appellant at 32.
Nelson,
Brief of Appellant at 32 (citing Griffth v. Emp’t Sec. Dep’t,
Nelson,
RCW 50.04.294(2).
RCW 50.04.294(2)(f).
RCW 50.04.294(l)(b).
RCW 18.235.130(4).
RCW 50.04.294(l)(d).
WAC 192-150-205(3).
Administrative Record at 306.
Brief of Appellant at 29.
RCW 50.04.294(2)(f).
Brief of Appellant at 35-36 (citing Smith v. Emp’t Sec. Dep’t,
Reply Brief of Appellant at 6-7 (citing Guevarra v. Seton Med. Ctr.,
Cowiche Canyon Conservancy v. Bosley,
Falk v. Keene Corp.,
Id.
Administrative Record at 141.
Brief of Appellant at 37-38 (citing Baxter v. Jones,
Baxter,