?Takeaway: It is increasingly critical for employers to implement policies governing social media posts by their employees to protect the institution’s legitimate business interests.
?Offensive social media posts lacked a sufficient connection with work to be considered misconduct under the employer’s broad social media policy, the Nebraska Supreme Court held, affirming that a worker fired for allegedly posting vulgar comments wasn’t disqualified from getting state unemployment benefits.
The plaintiff had been employed as an internal audit supervisor for a bank since 2018 and was considered a bank officer. In May 2021, his employer received complaints regarding activity on the employee’s social media account during a local mayoral debate. The Twitter posts urged the incumbent mayor, whose husband had recently died from suicide, to commit suicide herself. The posts were made on a public account with Twitter and did not mention the employer. However, the employee’s connection to the bank was discovered by the people bringing the complaints. An investigation by the employer revealed additional posts on the Twitter account from 2020 in which disparaging and obscene remarks were made about other public figures.
The bank called the employee to inform him that he was being terminated from his employment because his posts violated the bank’s social media policy. The bank’s policy, which had been updated and published in March 2021, placed additional responsibilities on officers of the bank, “as the viewpoints they express on social media may be interpreted by customers and the community as the bank’s viewpoints.” The policy urged employees to consider “the risks and rewards” involved before creating online content. “Inappropriate postings that include discriminatory remarks or constitute harassment, hate speech, whether or not they include profane/obscene language, threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may be subject to disciplinary action up to and including termination,” the policy stated.
In an application submitted to the Nebraska Department of Labor for unemployment benefits, the plaintiff acknowledged that he had violated his employer’s social media policy by posting inappropriate messages on Twitter but claimed that he had been unaware of the policy. The department determined that he was disqualified for benefits for the week in which the discharge occurred plus 14 weeks because he had been fired for misconduct in connection with his work. The total amount of reduced unemployment benefits was $6,384.
The plaintiff appealed to the department’s Nebraska Appeal Tribunal, stating that he was unaware of the policy and that the postings had not been made at work or during work hours. The tribunal received evidence of the employee’s acknowledgement of receiving a copy of the employee handbook, which he had signed in 2018, as well as an email directing all employees to the 2021 handbook updates. The plaintiff asserted the posts were not related to any work he performed and did not involve bank employees, customers or the bank itself. For the first time, he also denied having made the posts in question and said that he rarely used Twitter and was unaware of posts being made in his name.
The tribunal reversed the determination, holding the plaintiff was entitled to benefits for the weeks claimed because the social media posts were not connected with the plaintiff’s work as required under Neb. Rev. Stat. Section 48-628.10. The tribunal found the posts were made in the plaintiff’s personal capacity and were not sent from work or during work hours. It also observed that the breadth of the employer’s policy left it with significant discretion to regulate the off-duty speech of its employees.
Although the tribunal didn’t suggest that it was improper for the bank to fire the plaintiff for his conduct, it noted disqualification under Section 48-628.10 applies only to a limited subset of justifiable terminations. “[A]n employer cannot transform off-duty conduct into conduct connected to work simply by adopting a broad policy attempting to regulate off-duty conduct,” the tribunal said.
On review, a state district court adopted the tribunal’s findings, reasoning that the plaintiff’s “misconduct, if assumed true, was totally divorced from his position with [the bank] and … was not connected with his work.” The bank appealed.
The state supreme court noted that “the Employment Security Law is to be liberally construed so that its beneficent purpose of paying benefits to involuntarily unemployed workers may be accomplished.” Although the law doesn’t define misconduct, the court has defined misconduct to include behavior evidencing wanton and willful disregard of the employer’s interests; deliberate violation of rules; disregard of standards of behavior which the employer can rightfully expect from the employee; or “negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations.” The court stressed that an employer does not meet its burden of proving misconduct connected with the employee’s work by simply showing the employee was discharged for violating a rule, policy or order.
In cases exploring whether a policy governing off-duty conduct is reasonable, the court noted it has weighed the likely effect on an employer’s interest against the imposition upon the employee’s private life.
Although the court has not previously addressed off-duty social media discourse as possible misconduct connected with an employee’s work, no other Nebraska court has found off-duty social media discourse to be misconduct connected with the employee’s work “when posts have not directly concerned a co-worker, explicitly identified the employer, or directly concerned an individual customer or customer group,” the court said. “While the posts may have been inappropriate, harmed the employer’s business relationships, and justified discharge from employment, courts have held under the facts presented that there was too weak of a connection with the employee’s work to rise to the level of disqualifying conduct for the purpose of state unemployment benefits,” the court said.
“We agree that an employer’s rule of conduct must clearly apply to off-duty conduct before its violation constitutes misconduct of such a degree to render the employee ineligible to partake in the beneficent purposes of the employment security law,” the court held. “Overly broad or vague policies governing off-duty conduct generally failed to bear a reasonable relationship to business interests that are not reasonable under all the circumstances.”
The court affirmed the district court’s determination that the posts were part of the employee’s personal life, totally divorced from his work and could not be reasonably connected with work through the employer’s broadly worded social media policy. For this reason, the plaintiff was not disqualified from unemployment benefits.
Pinnacle Bancorp Inc. v. Moritz and Nebraska Commissioner of Labor, Neb., No. S-22-326 (March 31, 2023).
Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.
