Termination for Social Media Activity May Result in Unemployment Compensation Benefits

Q.  Our Company just terminated an employee for a social media post that was in violation of our social media policy. Will she be entitled to unemployment compensation benefits?

A.  Possibly.

While unemployment compensation laws vary from state-to-state, former employees generally are entitled to benefits unless the employer can prove that the employee’s employment ended due to a disqualifying reason, such as willful misconduct or voluntary discharge.

In a recent Pennsylvania Commonwealth Court decision, Waverly Heights, Ltd. v. Unemployment Compensation Board of Review, the Court affirmed a benefits award to a former human resources executive who was terminated for sending what the employer deemed to be a racially-charged tweet about the 2016 presidential election. Until her termination, Kathleen Jungclaus had served as the vice president of human resources of a retirement care community for nearly 20 years. Ms. Jungclaus was terminated when she posted a tweet to her personal Twitter account in July 2016 that stated “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!” Per the employer, “AA” referred to African Americans and Ms. Jungclaus’s tweet was an admission to singling out black staff members and asking them about their political preferences.

Ms. Jungclaus’s employer maintained a social media policy that stated it was the employer’s expectation that employees “who identify themselves with” the employer on social media promote and protect the reputation, dignity, respect, and confidentiality of the employer’s residents, clients and employees. Because of the racially-charged nature of the Tweet (and its presumed reference to African American employees), the employer argued that Ms. Jungclaus’s termination for violating the company’s social media policy constituted willful misconduct.

For Pennsylvania Unemployment Compensation Law purposes, “willful misconduct” is defined as “(1) wanton and willful disregard of an employer’s interests; (2) deliberate violation of rules; (3) disregard of the standards of behavior which an employer can rightfully expect from an employee; or, (4) negligence showing an intentional disregard of the employer’s interests or the employee’s duties and obligations.” When an employer seeks to deny a former employee unemployment compensation benefits based on a rule or policy violation, the employer must prove (a) the existence of the rule; (b) the reasonableness of the rule; and (c) the employee’s violation of the rule.

Applying these standards, the Commonwealth Court determined that there was sufficient evidence to support a finding that Ms. Jungclaus did not violate the social media policy because she did not explicitly “identify” herself as an employee of Waverly Heights—even though a Google search of Ms. Jungclaus’s name would reveal that she worked there. Furthermore, the Court concluded there was no evidence of “wanton and willful disregard of an employer’s interests” because there was no actual evidence that Ms. Jungclaus polled African-American employees about their political preferences.  The Court found that mere discussions of current affairs did not rise to the level of willful misconduct.

Importantly, the Court reviewed only whether Ms. Jungclaus was entitled to unemployment compensation benefits. The Court was not asked to consider whether the termination itself was unlawful.

The Obama-era National Labor Relations Board (“NLRB”) frequently concluded that overly broad social media policies could have a chilling effect on unionized and non-unionized employee rights to engage in concerted activities under the National Labor Relations Act (“NLRA”).  As we mentioned in a post earlier this year, the U.S. Court of Appeals for the Second Circuit ruled that an employee’s social media post cursing at a supervisor and his family, made during a union election, was protected activity under the NLRA, and the employee could not be terminated for it. It remains to be seen how the Trump NLRB will interpret and enforce social media policies.

The primary lesson for employers? Unless an employer can affirmatively establish that a terminated employee engaged in willful misconduct or is ineligible for benefits due to other disqualifying reasons, then the terminated employee likely will be entitled to unemployment compensation benefits. Further, when making an employment decision based on an employee’s social media post, tread carefully. At least for unemployment purposes, it is likely that state labor departments and the courts will not find such comments to rise to the level of willful misconduct. Additionally, depending on the content and context of the post, the NLRB may find the post to be a lawful concerted activity protected by the NLRA.

Lee E. Tankle