Prior to the advent of social media and especially the #MeToo movement, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct. Those bygone times, however, have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce in an increasingly virtual world.
The following two cases and employer decisions illustrate how nuanced and difficult deciding to terminate an employee for a social media post can be.
Angered over rest breaks
In Schirnhofer v. Premier Compensation Solutions, plaintiff worked as a billing coordinator diagnosed with anxiety disorder. Plaintiff submitted a doctor’s note requesting a reasonable accommodation of two 10-minute rest breaks to cope with her anxiety, in addition to the rest breaks provided to all employees. The employer denied her request because the request wasn’t necessary “to perform the essential functions of your job.”
Plaintiff took to Facebook to vent her frustration in the following posts: “[f]or every reaction there is a reaction” and “sometimes I wish I could go back to the old days and handle s*** the old way.”
Shortly thereafter plaintiff was terminated for making implied threats on Facebook. She subsequently filed suit alleging a failure to provide a reasonable accommodation, discrimination and retaliation. At trial, the jury awarded her $285,000 in damage (recently vacated) on her claims of disability discrimination and failure to accommodate, but found in favor of the employer as to her claims of retaliation.
In finding in favor of the employer as to the retaliation claim but against the employer on failure to accommodate claim, the jury appears to have taken greater issue with the employer’s refusal to grant additional rest breaks as an accommodation rather than its terminating the plaintiff for her online post.
Misconduct can occur outside work
Shannon Cummins worked as an assistant manager who got into a heated argument with her boss and hours later posted on Facebook that she “would [have] sliced his throat open if it didn’t happen at work.” She was terminated shortly thereafter and filed for unemployment benefits arguing her Facebook post could not be disqualifying misconduct because it occurred outside of work and was a hypothetical, rather than actual threat.
In a published unemployment appellate decision (Cummins v. Unemployment Comp. Bd. of Review), a three judge appeals panels rejected both arguments.
First, the appellate panel found “[al]though Claimant did not make the threatening statement at work, there is no requirement that an employee’s misconduct must occur on the employer’s premises or while the employee is on duty to be considered work-related.”
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Second, the appellate panel rejected Claimant’s argument that her statement was not a threat because it was “conditioned on the incident hypothetically happening outside of work and outside the presence of co-workers.” The Court found, to the contrary, that it was a threat because “her words expressed an intent to cause physical harm.”
It should be noted this strongly worded opinion analyzed Pennsylvania law governing state unemployment benefits and serves as merely persuasive authority in other jurisdictions.
Advice for employers
Employers considering discipline for misconduct occurring on social media outside of work should ask themselves a few basic questions prior to taking action:
1. Do I have a copy of the tweet or post? — Social media is user-controlled content and can be easily deleted when an employee learns they are under investigation. Preserving this evidence prior to taking action is critical to any complete investigation.
2. Does the post relate to working conditions or wages? — The National Labor Relations Act prohibits employers from taking action against employees acting together to improve their wages, hours and/or conditions of employment.
3. Would the post be considered harassment if said face to face? — Applying an employer’s harassment and discrimination policy to offensive conduct requires evaluating the content of speech and actions. Consistently evaluating offensive conduct irrespective of the venue where the conduct occurred will help ensure consistent application of the employer’s policies.