If you are like most employers, you probably have a social media policy that prohibits employees from posting online content that might appear to come from your organization or represent an official company position.
However, unless an employee directly identifies her affiliation with her employer, most social media posts and tweets don’t violate those policies. Therefore, a state court recently concluded, they don’t constitute misconduct.
Recent case: Kathleen was vice-president of HR for Waverly Heights, a continuing-care retirement community in suburban Philadelphia. She worked there for almost two decades—until last fall.
As the 2016 presidential campaign came to a close, Kathleen used her personal Twitter account to post a message that read, “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees show 100% AA employees voting Trump!”
Waverly Heights’ social media policy states that it “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 media, whether through employer’s own postings or that of others. … Employer expects employees who identify themselves with employer in either internal or external social media to conduct themselves according to this policy.”
When the facility learned of the tweet, it fired Kathleen, claiming the post violated the social media policy.
Kathleen applied for unemployment benefits, but her former employer objected, claiming she was guilty of misconduct.
Kathleen sued, arguing that she had not identified her employer in the tweet and therefore hadn’t willfully violated its policy.
Waverly Heights argued that she “followed” the facility on social media and that someone reading Kathleen’s tweet could easily figure out where she worked.
A Pennsylvania Commonwealth Court didn’t think it was so clear-cut. It ordered the unemployment comp agency to grant benefits to Kathleen. It said she had not willfully violated the policy because it was not obvious what company she worked for. (Waverly Heights v. UCBR, Commonwealth Court, 2017)