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Employer Use of Employee’s Social Media in Unemployment Compensation Appeals

As Published in the December, 2017 Issue of the PELRAS Newsletter

Published on: Wed 6th Dec, 2017 By: Martin Glynn

You don’t have to be Anthony Weiner or Donald Trump to fall victim to social media’s endless trappings. Just ask Joseph Gumpher. In a recent Commonwealth Court ruling, Gumpher v. Unemployment Compensation Bd. of Review, the Court upheld the use of Gumpher’s Facebook post as evidence against him in an unemployment compensation case. Gumpher’s employer, a metals company, found the Facebook post after he ceased coming to work after having been assigned to a night shift. The Facebook post read:

“Time for a change, Work decided to have 2nd shift, (Picked for that) don’t like, so chose not to… it’s a choice you can make when retired. There are other jobs. Time to relax for a while [sic].”

When Gumpher filed for unemployment, his former employer introduced the Facebook post as evidence that he voluntarily quit employment. Gumpher argued that he had a “necessitous and compelling” reason to voluntarily quit, i.e., he needed to care for his children at night. The Commonwealth Court explained that inability of a parent to care for a child may constitute a necessitous and compelling reason for terminating employment in some circumstances, but that Gumpher failed to establish that he had exhausted all other alternative childcare arrangements. In ruling for the employer, the Commonwealth Court cited to its own prior cases where social media posts were admitted in unemployment compensation cases. In Harnish v. Unemployment Compensation Bd. of Review, an employee’s Facebook posts were used to prove that she lied about holding employee meetings in her home, despite telling her employer she had never held such meetings. Similarly in VanKersen v. Unemployment Compensation Bd. of Review, the Court analyzed an employee’s Facebook posts to determine if he had admitted that the motor vehicle accident he was involved in could have been avoided.

The courts have made clear their willingness to consider employee social media posts in employment-related litigation, so it is logical for employers to consider using this resource where litigation seems likely. One word of caution however: employers should not ask employees to access the social media accounts of other co-workers, for the employer. Such requests can be deemed to be coercive and an “unauthorized” access to electronically stored information.

Some social media users set their social media account to allow for public view, while others use privacy settings to restrict who can view posts, photographs, etc. When a social media user does not restrict who can view content, there is not concern regarding “unauthorized access” to the information. However, when a user restricts who can view content, the employer should not attempt to gain access through a Facebook “friend.” That means if Employee A is a Facebook “friend” of Employee B, management shouldn’t ask Employee A to access postings by Employee B, assuming Employee B used privacy settings to restrict his/her postings from public view. On the other hand, employees who see social media postings by a co-worker that violate municipal policy or local, state or federal law, should (at their own initiative) print the posting and provide a copy to the municipal Manager. These scenarios should all be guided by your municipality’s policies on social media, as well as policies on electronic use, harassment and workplace violence.

In Gumpher, the employer used the social media posting in an unemployment compensation case, after Gumpher quit his job. Further consideration must be given when using social media postings as a basis for discipline, especially for public employers. Public employers must take into consideration their employees’ limited protections under the First Amendment when taking disciplinary action. Is the employee’s posting made as a private citizen on a matter of public concern (speech protected under the First Amendment), or is it simply related to his/her employment (speech not protected under the First Amendment)? In unionized settings, labor law principles regarding protected “concerted” union activity also must be taken into consideration before issuing discipline based on social media postings.