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Tweeting, Termination, and Unemployment Compensation

11/27/2017

Pennsylvania Unemployment case law concerning employees’ use of social media has been developing over the past few years. In Pennsylvania, an individual is not eligible to collect unemployment compensation benefits if his or her termination was the result of willful misconduct. Generally speaking, willful misconduct is defined as a willful disregard of the employer’s interests, a deliberate violation of the employer’s rules, a disregard for the standard of behavior that the employer has a right to expect from an employee, negligence which demonstrates wrongful intent, or intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations. The question often turns on not whether the employer had a right to terminate (Pennsylvania is an “at-will” employment state) but whether the employee’s conduct constituted willful misconduct. When an employee’s use of social media is a factor in the decision to terminate an employee, employers need to balance an employee’s right to engage in concerted activity regarding the terms and conditions of employment against conduct which violates company policy.

In 2011, the Commonwealth Court decided a case that involved social media and the company’s policy against dishonesty. In that case, a group of employees was unhappy about their paychecks. They began to voice their concerns on Facebook and eventually, using Facebook, organized a meeting at the home of one of the employees to get together and discuss the matter. The employees met and strategized and decided to stage a call-off from work so as to disrupt the employer’s business. This conduct clearly falls within the definition of protected concerted activity under the National Labor Relations Act. When the employee who hosted the meeting returned to work, the employer asked her if a meeting had taken place at her house, and she denied it. The employer then viewed the Facebook posts that confirmed that the meeting took place at the employee’s home and fired the employee, not for hosting or participating in the meeting but for lying about it. The Unemployment Compensation Board of Review determined that the employee was not eligible for benefits because lying to an employer demonstrates a disregard of an employer’s interests and/or a departure from the standards of behavior an employer has the right to expect from an employee. The Commonwealth Court affirmed the decision.

In 2015, the Commonwealth Court decided another case where an employee’s dishonesty was revealed in a Facebook post. In that case the employee was involved in two car accidents. The employer had a policy that prohibited deliberate destruction of company property. When the employer asked the employee about the accidents, he told the employer that he was not at fault and that the accidents could not have been avoided. Unfortunately for the employee, his Facebook posts told a different story. He actually admitted on Facebook that he could have avoided the accidents. The employee was terminated when the employer learned of the posts. The Commonwealth Court determined that the employee’s conduct constituted willful misconduct and that he was ineligible for benefits.

In August of 2017, the Commonwealth Court decided another case involving an employee’s Facebook post. In that case, an employee quit his job and filed for unemployment compensation benefits claiming that he quit for a compelling and necessitous reason. At the unemployment hearing, the employer introduced evidence of the employee’s Facebook posts in which he said it was time to relax for a while and so he decided not to work. The Unemployment Referee found that the employee’s posts were evidence that he did not quit his job for good reason and, therefore, the employee was not eligible for benefits. The employee appealed, and the determination was ultimately affirmed by the Commonwealth Court.

On November 13, 2017, the Commonwealth Court weighed in on whether a tweet was enough to deny unemployment compensation benefits. In 2016, a high level employee was fired after tweeting what the employer called a “racially charged” political comment about the presidential election on her personal Twitter page. The employee’s tweet implied that she had taken a survey of “AA” employees and their views on the election. The employer argued that, even though the tweet was on the employee’s personal page, it was easy to determine who the employer was and that the employee violated company policy when she engaged in such conduct at work and when she tweeted about it. The employer took the position that the employee’s conduct demonstrated a disregard for the employer’s interests, and therefore the employee engaged in willful misconduct and was ineligible for unemployment compensation benefits. The Unemployment Compensation Board of Review and the Commonwealth Court disagreed. The Board held, and the Court affirmed that, while the employer may have been entitled to terminate the employee, the issue of whether an employer can rightfully discharge an employee is separate from, and not relevant to, the issue of whether a claimant is eligible for UC benefits. The Court held that “mere discussions about current affairs, such as an upcoming Presidential Election, do not rise to the level of disqualifying willful misconduct.”

These cases are illustrative of the ways in which employers are handling terminations based on employee’s social media posts. As the year draws to a close, it is a good idea for employers to review their social media and other polices to ensure that they are up-to-date and reflect the most current status of the law.