Unemployment Hearing Case Review: Social Media Policy
By Dave Caldwell
Learn from an unemployment hearing case study about an employer’s social media policy and how to present your best case to help increase your chance of winning.
You understand the importance of unemployment claim hearings. Being knowledgeable and prepared for different scenarios can mean the difference between a win or a loss, with tangible financial implications. Here is an example of a real unemployment hearing case focused on the employer’s social media policy.
Unemployment Claim Hearing Background
The employer is an insurance company. The claimant worked as a case representative.
The Employer’s Unemployment Claim Hearing Evidence
The employer testified that the claimant worked for the employer for 9 years prior to separation. The employer has a social media policy which applies to use of social media for both business and personal reasons when issues concerning the employer are posted or discussed. The policy further instructs employees to act responsibly and respectfully and prohibits threats of violence. The policy states “Social media platforms are not places to abuse or air hostile opinions about colleagues, members or business partners”.
The employer testified that the claimant was assigned an urgent and time sensitive project first thing in the morning by the claimant’s manager. The claimant was specifically advised to prioritize this project above everything else. Toward the end of the business day, the claimant’s manager contacted the claimant to see how the project was progressing. The manager testified that the claimant advised that they had not worked on the project at all. The claimant had prior warnings about ignoring priority projects. The manager testified that they were upset that the claimant had not worked on the project at all and advised the claimant that the failure to do so was unacceptable. The manager instructed the claimant to begin work on the project immediately and get it completed.
The next day, several of the claimant’s co-workers advised the manager that the claimant had posted a rant on a social media platform and had made possible threats regarding the manager. The employer opened an investigation. The employer found that the claimant’s social media page was designated as public so anyone could view the posts. The previous evening the claimant had posted on social media complaining about the manager being “overbearing” and “micromanaging” using profanity and threatening language. Later the claimant posted on social media that the employer was preventing them from filing a harassment claim and made statements regarding the employer operating an illegal business. The claimant further stated “My supervisor is like a dog with fleas that is constantly gnawing, gnawing, gnawing at you and never stops gnawing. I can’t work with this person at all. What’s it going to take for them to realize they have gone too far or pushed too hard? Do I have to have a nervous breakdown and start waving a gun around at the office, or die from a heart attack or stroke after a confrontation with my supervisor before they will even take notice that there is a huge problem here?” The employer testified that the claimant’s post was a direct violation of the policy regarding social media and discharged the claimant.
The Claimant’s Unemployment Claim Hearing Evidence
The claimant stated they were aware of the employer’s social media policy and knew they were prohibited from posting things about the employer online. The claimant further stated they were aware that the social media page was public and that many people were able to read what was posted. The claimant stated that they did not refer to the employer or manager by name in the post. On cross examination by the employer’s hearing representative, the claimant admitted however, that while they did not have a job title or employer listed on their profile, they were connected on the social media platform with many co-workers who would have seen the post and known instantly to whom it was referring. The claimant made allegations that the manager was constantly belittling and harassing them about the job. The claimant stated that the threat was empty because they did not own a gun and that they were just being dramatic.
The Unemployment Claim Hearing Decision
The Hearing Officer found that:
The claimant was not being harassed by the manager, as the manager’s expectation that the claimant complete the assigned projects were reasonable.
The claimant knew that the social media page was public and they had co-workers who would easily identify the person they referenced.
The Hearing Officer found the claimant was aware of the social media policy and knew that violation of the policy would amount to discharge.
The claimant did not state they were joking and the comments were a reckless disregard of the employer’s interest.
The claimant appealed. The claimant argued that:
They believed the manager’s behavior was so egregious that they felt they had no choice but to vent their frustrations to their connections on social media.
The claimant did not believe that anyone would take the dramatic statements seriously and they did not intend to follow through with any of the statements.
The Board of Review Decision
The Board of Review (Board) affirmed the decision stating that:
The employer met the burden of proving misconduct.
The claimant’s statements were disparaging to both the manager and the employer and there was a specific threat of violence. While the claimant may not have intended the statement as a threat, there was nothing in the statement that indicated the claimant was not serious. The claimant’s statements were reckless and threatening and showed a disregard of the employer’s interests in addition to being against the employer’s social media policy.
Statements made on social media can go either way in terms of a discharge. The key to whether or not a claimant’s off duty behavior on social media will amount to employment misconduct may depend largely on the employer’s policy and whether there is a connection to the work. Overly broad policies may not support a discharge for misconduct.
If the claimant’s social media presence had been private, and if the claimant had indicated that the remarks were jokes, the claimant may not have been denied benefits. The finding of misconduct in this case was largely dependent on the claimant’s statements being public.