On July 24, 2016, Ms. Junclaus went on her personal Twitter page and tweeted: “@realDonaldTrump I am the VP of HR in a comp outside of philly [sic] an informal survey of our employees shows 100% AA employees voting Trump!”
A little over two months later, Ms. Junclaus found herself unemployed and applying for benefits.
Ayo, before I finish telling this story, you should probably check out yesterday’s post ICYMI. #EmploymentLawNerdBrigade
Her former employer fought Ms. Junclaus’s application for unemployment compensation, arguing that her tweet violated the company’s social media policy. According to the Commonwealth Court opinion (here), the Social Media Policy included this provision:
[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 media, 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.
Initially, the employee had her benefits claim granted, then denied, and then granted again.
Connect the what now?
On appeal to the Commonwealth Court, the employer argued that its social media policy permitted it to terminate an employee, like Ms. Junclaus, for her “racially charged” post. The employer reasoned that a simple connecting of the dots would allow someone who viewed Ms. Junclaus’s tweet to conclude that she was impugning the company. According to the opinion, here’s how: “According to Employer, Claimant readily identified herself with Employer. Claimant identified herself as a vice president of human resources of a company located outside of Philadelphia. Claimant follows Employer’s Twitter feed. A Google search of Claimant’s name or Employer’s directory would quickly link the two together.”
I’m all for creative arguments, but this one. Ummm….
Indeed, the record showed that Ms. Junclaus identified herself as a vice president of human resources of an unnamed company located outside of Philadelphia. And, although Ms. Junclaus followed her employer on Twitter, she didn’t identify herself as an employee of the company. Her Twitter account wasn’t “linked” to the employer’s Twitter page or website.
And something about a Communications Policy.
But, that’s not all. The employer argued that, beyond its social media policy, Ms. Junclaus violated its Communications Policy by linking to the employer’s website. However, the Commonwealth Court set the employer straight on this issue:
Employer failed to prove that Claimant violated its Communications Policy, which provides that employees may not “link from a personal blog or social networking site to [Employer’s] internal or external website.” The Board’s finding that Claimant merely “follows” Employer’s Twitter account is supported by the evidence. Employer did not prove that Claimant had a “link” to Employer’s website on her social media page. Consequently, Employer would not prevail on this claim.
Now, what was so racially charged about this post?
Finally, the employer argued that Ms. Junclaus’s tweet confirms that she acted inappropriately at the workplace by conducting an informal survey, in which she “singled out African-American staff and asked them their political preferences.”
Now, while Ms. Junclaus admitted that she targeted African-American employees and inquired about their political preferences, another witness testified that Ms. Junclaus asked other employees about their voting preferences too. Plus, the Commonwealth Court reasoned that, even if the “AA” in the tweet stood for “African American,” the tweet did not single anyone out. Rather, it merely shared the voting preferences of the African American employees with whom Ms. Junclaus spoke about voting.
The moral of this story is that you can fire just about anyone for just about anything or nothing at all. That’s at-will employment for you. Just remember, that unless you have the former employee nailed for violating a company policy, it’s really tough to prevail when contesting an application for unemployment compensation.