On Thursday, October 17th, Judge Bonnie Brigance Leadbetter ruled against an ex-employee and sided with the Pennsylvania Unemployment Compensation Board finding that they were correct in denying Alfonso Miller unemployment benefits for willful misconduct. The former employee worked for Horizon House in Philadelphia for almost five years and was fired in September 2012 for willful misconduct. The employer alleged that during the man's performance review that he called his supervisor a "****ing clown" and allegedly made other derogatory comment which they determined were grounds for his termination. The man did not deny making the statement or using the term to describe his former boss. Rather, he argued that his language was protected under the First Amendment to the United States Constitution. He also argued that employers should understand that certain "questionable language" may be used at times in the workplace and that he should be entitled to receive unemployment benefits just the same.
According Pennsylvania law, the burden of proof for willful misconduct is incumbent on the employer. First, the employer must prove that the rule exists, that the rule is reasonable, and that the employee violated it. Second, the employer must prove in court that the employer had knowledge and understanding of the rule. Finally, the employer must prove that appropriate disciplinary procedures were applied. Willful misconduct can be based on a single event or a series of events. The degree of the offense from any event may be subjectively determined by the employer. Typical reasons for willful misconduct include the following: absence and tardiness, point system, application for work, attitude toward employer, conditions of employment, customer relations, and others. For willful misconduct to apply under attitude toward employer, there are certain standards of behavior expected by an employee which can be communicated explicitly or implicitly. In other words, an employer may expect that a reasonable person should not use abusive language, insubordination or other improper conduct. These same standards apply to the employer as well. Furthermore, the employer must document the incidents of misconduct.
For the employee to prove that they engaged in willful misconduct but should be exempt from the consequences, he or she must claim that they had good cause. In other words, the former employee would have to prove the rule was unreasonable and that their reason for breaking the rule was just. More or less, the employee must show that their level of harm from the rule outweighs the employers interest. If the employee cannot show that they met these conditions, the Unemployment Compensation Board will likely find in favor of the employer. If that is the case, the former employee would have to appeal to the Commonwealth Court to decide which is the situation that occurred in this case.
Judge Leadbetter determined that the Horizon House was justified in firing Miller for violating their standards of acceptable behavior at the workplace. According to their website, Horizon House espouses the following belief: "people should be treated with dignity, respect, fairness and consideration in environments that are safe and comfortable and that support individual advancement". It appears that this organization did not agree that treating someone with dignity and respect includes derogatory comments. While referring to one's boss as a clown may be an acceptable way for McDonald's to advertise for employment, the phrase may not fly outside of the circus, amusement park, or fast food establishment that uses a clown image for promotional reasons.
Relying on the First Amendment right to free speech in this case did not hold merit in evaluating the denial of unemployment benefits. The judge did not bite at the bait, and in the past, the courts typically side with the employer when it is a private employee. Because no state actor is involved when it is a private organization, the employee's rights are not being violated. Essentially, Miller worked for a non-profit private organization and was not supervised by a public government employee; therefore, the First Amendment does not apply in this case. In fact, the Supreme Court found that obscenities are not words that are protected speech in an employee/employer relationship. Now had Miller been using profanity while speaking out at his place of employment for public concern such as warning his fellow employees that there was a fire and telling them to ****ing run to safety, he could have claimed good cause. Even if his boss was a clown, the First Amendment was a long-shot that did not pay off in the long run.