Christmas is nearly upon us, and with it, those uncomfortable political discussions at the dinner table with loved ones. We all know that one person who is not shy about telling everyone why he or she supports a particular political party or candidate (and, perhaps, why you are a terrible person if you do not agree). These sentiments are often shared on social media and, as a recent Pennsylvania appellate court decision shows, can lead to employment law issues.
Kathleen Jungclaus worked full-time as vice president of human resources for a retirement community. In July 2016, she sent the following from her personal Twitter account: “@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!” In September 2016, the employer learned of the tweet, conducted an investigation, and terminated Ms. Jungclaus for violating its Social Media Policy.
The Social Media Policy stated that the employer “has an interest in promoting and protecting its reputation” as depicted in its own social media posts or those “of others.” It also stated that the employer “will actively manage the content of its social media sites” to uphold its values and mission. Finally, it stated that employees who identify themselves with the employer in social media are expected to conduct themselves according to the policy.
Ms. Jungclaus was initially granted unemployment compensation benefits, but this determination was reversed by a referee’s finding that she had engaged in “willful misconduct” by violating the Social Media Policy. This determination was upheld by the Unemployment Compensation Board of Appeal. On appeal, the Commonwealth Court reversed the Board and found in favor of Ms. Jungclaus
The Commonwealth Court rejected the employer’s contention that the tweet was “racially charged,” as the record did not support a finding that “AA” referred to African Americans given Ms. Jungclaus’s testimony that “AA” referred to administrative assistants. The Court also found that even if “AA” stood for “African American,” the tweet did not single out such employees for their political preferences; it referred to an informal survey of “our employees.” In addition, the Court rejected the argument that Ms. Jungclaus violated the policy by identifying herself with her employer. Although Ms. Jungclaus “followed” the employer, allowing her to view any of its tweets, she did not identify her employer in the tweet or hold herself out as its representative.
This decision adds to the ever-increasing body of law addressing the use of social media by employees. Employers must be aware that even if an employee is being fired pursuant to “at will” employment, he or she may be eligible for unemployment compensation if the termination is not for willful misconduct (i.e., violation of a rule or policy). For questions about this or any other labor and employment topic, please do not hesitate to contact a member of our Labor and Employment Department.