Jeff Nolan, Maggie Reynolds, Editors
Dinse, Knapp & McAndrew, P.C., Burlington
by Jeff Nolan
In January 2017, a three-justice panel of the Vermont Supreme Court issued an order upholding an Employment Security Board ruling that a former ski resort employee was temporarily disqualified from receiving unemployment compensation benefits because he was fired for misconduct connected with his work. While three-justice orders aren’t formal precedent, the facts of the case are interesting, and the decision does provide some insight into how the court applied the law to those facts. The circumstances of the case also may inspire those of you in the service and hospitality sectors to consider the adoption of a “consumer review response” policy.
In Vermont, if an employee is fired, he can and often does apply for unemployment compensation benefits. If the employer disputes the claim, it’s considered within the Vermont Department of Labor (VDOL) by a claims adjudicator. Any appeals are considered by an administrative law judge (ALJ) and the Employment Security Board. Claims adjudicators and ALJs typically hold fact-finding conferences by telephone, and the board typically holds in-person hearings. If someone isn’t happy with a decision of the board, the decision can be appealed to the Vermont Supreme Court.
It has been our experience that applications for unemployment compensation are routinely granted, even if the discharge was well justified and supported by clear evidence. Usually, a substantial record of progressive discipline and relatively strong evidence of misconduct are necessary before a former employee can be denied unemployment benefits.
In the following case, the court’s legal analysis began by quoting the pertinent statutory section, which provides that an employee may be disqualified from receiving unemployment compensation benefits for a specified period if he has “been discharged by his . . . last employing unit for misconduct connected with his . . . work.”
The court emphasized that this standard is higher than the threshold necessary to justify a discharge, stating, “The fact that misconduct may support a discharge does not necessarily mean that the same misconduct disqualifies an employee from receiving unemployment benefits.” This is because, according to the court, it “has defined misconduct sufficient to constitute disqualification under [the relevant statutory provision] as substantial disregard of the employer’s interest, either willful or culpably negligent.” The court maintains that “culpable negligence connotes something more than mere negligence or errors in judgment.” To further complicate matters for employers, the court has held that the employer “has the burden to establish misconduct by a preponderance of the evidence.”
The circumstances of the case discussed below should be evaluated in light of this relatively high standard.
John Tansey worked for 2½ years as a bartender for the Mount Snow ski resort before he was discharged in January 2016. According to the court, he had received a written warning in August 2015 for making a guest feel unwanted and was told that any further behavior of this type could result in termination of his employment.
In early January 2016, Mount Snow became aware of a TripAdvisor review indicating that Tansey had been rude to the reviewer and her friends when they ordered drinks late one evening. Based on this review and the previous warning, Mount Snow discharged him from his bartending position.
A few days later, Mount Snow hired Tansey as a snowboarding instructor. Approximately one week after beginning his instructor job, he informed Mount Snow’s director of food and beverage that he had “contacted the TripAdvisor reviewer and told her that he had been fired because of her review and that she needed to think twice before placing such a review again.” Reportedly looking to get his bartender job back, he informed the director of food and beverage that the reviewer had removed her review after he contacted her. Upon learning this, Mount Snow’s HR director discharged Tansey again, this time for contacting the TripAdvisor reviewer without obtaining Mount Snow’s permission.
In seeking unemployment compensation benefits, Tansey reported to the VDOL that he had been fired because of a complaint on TripAdvisor, but he denied being rude. Based on this information, a claims adjudicator determined that he was entitled to unemployment benefits because Mount Snow had failed to demonstrate sufficient grounds to constitute misconduct.
Mount Snow appealed to an ALJ, who determined that Tansey was temporarily ineligible to receive unemployment benefits because the company had demonstrated he was “fired for misconduct connected to his work.” He appealed to the board, which agreed with the ALJ’s decision. He then appealed to the Vermont Supreme Court.
On appeal to the Vermont Supreme Court, Tansey made a variety of fact-based arguments, including a claim that his discharge was in retaliation for a workers’ compensation claim he made in 2013 and claims that Mount Snow’s HR director made false representations on factual issues during the VDOL proceedings. The court rejected the retaliation claim out of hand because it was raised too late—arguments can’t generally be raised for the first time on appeal. It also rejected the fact-based claims because the applicable standard of review required it to “uphold the Board’s decisions unless it can be demonstrated that the findings and conclusions were erroneous.” In applying this standard, the court emphasized that “as long as there is some evidence to support the findings of the Board and the ALJ, we must accept those findings even if based on the testimony of a witness that [the appealing party] asserts was lying.”
The court found that there was sufficient evidence to support the board and ALJ findings in the case. It noted that Tansey didn’t argue his action in contacting the TripAdvisor reviewer was an “error in judgment” or “mere negligence”—that is, the type of conduct that might justify a discharge, but not a disqualification from unemployment compensation benefits. The court observed that the board determined this conduct was sufficiently inimical to Mount Snow’s interest to constitute misconduct temporarily disqualifying him from unemployment compensation benefits.
On the important issue of progressive discipline and a notice against further misconduct of the same sort, the court emphasized that the company had demonstrated its concern about conduct toward guests when it warned Tansey after the earlier rudeness incident. As a result, it “acted appropriately when it reacted to [his] contact with the [TripAdvisor] reviewer to complain about the review and its consequence for him.” Using these observations, the court found no basis to overturn the board’s determination that his conduct substantially disregarded Mount Snow’s interest. Tansey v. Department of Labor (Mount Snow, Ltd., Employer), 2017 WL 262042 (non-precedential Entry Order, not reported in A.3d).
On the unemployment compensation law front, this decision illustrates the importance of documenting performance problems. If misconduct is repeated and a discharge results, documentation provides at least a higher likelihood (but no guarantee) that the employee will be disqualified from unemployment compensation benefits, at least if the misconduct is willful, culpably negligent, and sufficiently inimical to the employer’s interest to meet the applicable standard.
On the “navigating social media” front, the circumstances of the decision suggest that employers in the service and hospitality industries should consider adopting a social media review response policy that advises employees not to contact social media reviewers directly and requires that employer approval be obtained before posting a response. To use the social media platform highlighted by this case, TripAdvisor has detailed suggestions and guidelines for management responses to reviews (www.tripadvisor.com/TripAdvisorInsights/ n2428/how-add-management-responses-tripadvisortraveler- reviews).
Those guidelines provide that management responses will be posted only if they fall within specific parameters (e.g., they should be professional and respectful). Obviously, if an employee is appearing to speak for a service- or hospitality-based business, the company would want to have control over how the postings could affect the company’s brand, positively or negatively.
This decision indicates that the reviewer at issue chose to remove her review after being contacted by Tansey, but it’s also easy to imagine that an already unsatisfied reviewer could react to such contact by posting a much more negative review and by posting extensive commentary on the issue on other social media. If, for example, a negative personal attack on a reviewer went viral, that could have very significant brand implications. Having a policy that seeks to prevent such posts from being made in the first place, serves as the basis for employee education on the topic, and provides a clear basis for discharge if the policy is ignored could very helpful.
Jeff Nolan can be reached at firstname.lastname@example.org or 802- 864-5751.