Wednesday, November 15, 2017

Precedential decision on social media and unemployment compensation

On Monday, the Commonwealth Court of Pennsylvania issued a precedential decision in Waverly Heights, Ltd. v. UCBR. The employer argued that the unemployment compensation claimant was terminated for "willful misconduct," which would disqualify her for UC benefits, for the following tweet:
@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!
The employer first argued that the tweet violated its policy:
[Employer] has an interest in promoting and protecting its reputation[,] as well as the dignity, respect, and confidentiality of its residents, clients, and employees as depicted in social medial, whether through [Employer’s] own postings or that of others. Towards that end, [Employer] will actively manage the content of its social media sites to uphold the mission and values of the company. Also, [Employer] expects employees who identify themselves with [Employer] in either internal or external social media to conduct themselves according to this policy.
The Court rejected this argument, finding that she did not "identify" herself with the employer. The employee did not identify the employer in the tweet. The employer argued that it was easy to find out who she worked for, and that she followed the employer's Twitter account (and therefore appeared in her list of accounts she follows). That was not enough.

In a last ditch effort, the employer lobbed a few Hail Mary's - For example, that she conducted the informal survey on work time. No dice. There was no evidence that she conducted it on work time, and routine conversations about current events would not be willful misconduct in any event.

Maybe it was willful misconduct because it was racist (specifically referencing AA employees and targeting them for the survey)? Nope. First, the employee claims "AA" referred to administrative assistants. Second, the tweet says she surveyed "our employees" not just the "AA" employees.

Final ruling: The employer did not meet its burden of establishing willful misconduct and the employee is eligible for UC benefits. Note that nothing in this decision relates to whether the employer had a right to terminate the employee - just whether she received UC benefits.

Questions I had: The format of the tweet suggests that it is a "Reply" - meaning that the claimant was directly responding to a tweet from now-President Trump. What did that tweet say? What were the trending topics? Was there additional conversation around the same time on Twitter? These contextual clues could give us a better understanding of the claimant's tweet.