The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
If Employee Is Fired for Off-the-Job Political Speech, Can He Be Denied Unemployment Compensation
on the grounds that the firing was for "misconduct" (such as violation of a social media policy)?
From Pinnacle Bancorp, Inc. v. Moritz, decided Mar. 31 by the Nebraska Supreme Court (in an opinion by Justice John Freudenberg, joined by Chief Justice Michael Heavican and Justices Stephanie Stacy and Jonathan Papik):
At issue in this appeal is whether social media posts directed toward local public figures from a public account of an officer of a local bank constituted misconduct in connection with work disqualifying the employee from unemployment benefits. The reason for the employee's termination was that the posts violated the employer's social media policy. The posts were not sent from work, during work hours, or using the employer's equipment. The posts did not contain information obtained in the capacity as an employee, mention the employee's position at the bank, or refer to coworkers or customers….
Moritz was fired from his internal audit supervisor job at Pinnacle Bancorp, Inc. because of complaints that Pinnacle got about Moritz's social media posts:
The Twitter posts tagged the incumbent mayor, whose husband had recently died from suicide. In one post, it was suggested the mayor "take your husband's lead … he had a good idea." Another post stated that "your husband couldn't stand you why should we?" and that "everyone will blow their brains out if you're still the mayor." …
Pinnacle's investigation revealed other posts on Moritz' Twitter account beginning in 2020 in which disparaging remarks were made about public figures. The posts included calling the chief executive officer of a local hospital "fat" and calling a politician a "cunt" who had "tried to [expletive]" a former political commentator's "corpse to attempt to extract sperm and create the antichrist."
Pinnacle's Social Media Policy provided the following though also added that "[o]fficers of the bank" (a category that included Moritz) "and their significant others have additional responsibilities as the viewpoints they express on social media may be interpreted by customers and the community as the Bank's viewpoints":
The same principles and guidelines found in the Bank's policies apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow employees or otherwise adversely affects employees, customers, suppliers, people who work on behalf of the Bank or the Bank's legitimate business interests may result in disciplinary action up to and including termination.
Carefully read these guidelines and the Bank's other policies and ensure your postings are consistent with these policies. Always comply with our Code of Conduct and Ethics and never reveal information about a customer or other confidential information. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.
Always be fair and courteous to fellow employees, suppliers and people who work on behalf of the Bank. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our open door policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage employees or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone's reputation or posts that could contribute to a hostile work environment on the basis of race, color, religion, sex, pregnancy, national origin, age, disability, military status, genetic information, marital status, sexual orientation, or any other status protected by law or Bank policy.
Moritz claimed unemployment benefits, but was largely disqualified on the grounds that he had been fired for misconduct. The court concluded otherwise, applying Nebraska's unemployment compensation law, under which "to determine whether an employee is partially or totally ineligible for benefits, one must consider (1) whether there was an act of proven misconduct and (2) whether the misconduct was connected with the employee's work":
[W]e have long defined misconduct to include behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations. We have explained that an employee's actions do not rise to the level of misconduct if the individual is merely unable to perform the duties of the job, but must involve at least "culpable negligence," which, "on a sliding scale," "is much closer to an intentional disregard of the employer's interests than it is to mere negligence."
This test of misconduct was developed under case law involving acts occurring during scheduled working hours and having an easily discernible direct effect on the employer's business interests. Disqualifying misconduct under such circumstances has included unexcused or excessive absences that are harmful to the employer, fraudulent or falsified work reports or receipts, and the deliberate disobedience of reasonable directions directly connected to the quality of the work product.
Fewer cases under the Employment Security Law have involved acts occurring while off duty. The relevant statutes do not define "connected with [the employee's] work," as stated in § 48-628.10(3), and we have not set forth a list of elements or an explicit definition for this concept. Some of the elements of our test for "misconduct," however, describe some connection to the employer's interests by referencing disregard of the employer's interests or standards the employer can rightfully expect from the employee and either culpable negligence or substantial disregard with respect to the employer's interests or the employee's duties.
Further, we have clarified that deliberate violation of rules will not be misconduct connected with the work without the rules' being reasonably designed to protect the employer's business relationship. An employer does not meet its burden of proving misconduct connected with the employee's work by simply showing the employee was discharged for violating a rule, policy, or order. We have also noted with approval decisions of the Tribunal designated by the Department as precedential and which reason that violation of an order is misconduct only if the order was reasonable under all the circumstances.
In cases exploring whether a policy or order governing off-duty conduct is reasonable, we have weighed the likely effect on an employer's interests against the imposition upon the employee's private life. For instance, we held in Snyder Industries, Inc. v. Otto that it was not misconduct connected with the employee's work to violate a company rule forbidding all contact between current employees and ex-employees. Although adopted in response to numerous leaks of information from the business to competitors, we found that the rule did not bear a reasonable relationship to the employer's interests.
In so holding in Snyder Industries, Inc., we did not deny there might be a relationship between the employer's interests and the prohibition. Nevertheless, we focused on the extent of that relationship in comparison to the impact on employees' personal lives. We said it was "more logical to believe" that production secrets were being obtained by competitors "by the hiring away of [its] employees," and the rule forbidding association of current employees with former employees "would not prevent such practices." "Furthermore," we explained, "the basis for the rule involved loses all sense of reason when one substitutes husband and wife, or father and son, for the two friends involved in the relationship forbidden here," implying that such an intrusion into an employee's private life would be patently absurd. We said, "We do not believe that a rule which forbids all contact between friends and acquaintances in the interest of preventing 'leaks' of production secrets simply on the basis that one or the other is no longer an employee of the company bears a reasonable relationship to the employer's interest."
Similarly, in Great Plains Container Co. v. Hiatt, we held that a violation of a work policy prohibiting excessive garnishments was not misconduct connected with the employee's work. We conceded that excessive garnishments might be a nuisance to an employer, and thus have some negative impact on the employer. Nevertheless, we pointed out that the garnishments were the result of the employee's conduct in "his private life." We held the employee's violation of the rule prohibiting excessive garnishments did not bear a "'reasonable application and relation to the employee's task[s]'" at work.
In contrast to Snyder Industries, Inc., and Hiatt, we held in Jensen v. Mary Lanning Memorial Hosp. that a nursing assistant committed misconduct connected with her work by continuing to disregard her employer's warnings that her off-duty consumption of alcohol should not be detectible by patients when she was working. We explained that regardless of whether the nursing assistant was intoxicated on the job, it was "not unreasonable" for the hospital where she worked to require she report to work without the odor of alcohol on her breath. We explained that the nursing assistant necessarily came into close personal contact with patients who could be distressed by the odor and lose confidence in the abilities of the hospital's employees to properly care for them.
In Dolan v. Svitak and Poore v. City of Minden, we found that illegal off-duty conduct bore a reasonable relationship to the employees' work. In Dolan, we held that off-duty illegal drug use was misconduct connected with the employee's work even if it did not affect the employee's work performance. The employee had failed drug testing conducted under a clear employer policy of which the employee had been notified. We explained that the drug-free policy of the company, adopted to enhance the company's reputation in the community by showing it had taken a visible stand against illegal drug use, was reasonably designed to protect the employer's business relationship.
In Poore, the off-duty theft by a city sanitation worker of the city's electrical and water services was found to be misconduct connected with the employee's work. We held the theft "was directly related to the employee's ability to handle his duties" because of "the relationship existing between a governmental unit and its citizens" was such that "[t]oleration of such conduct by a governmental employer would reflect unfavorably upon the employer in the eyes of the public."
We have not addressed under what circumstances off-duty social media discourse is misconduct connected with the employee's work. Other jurisdictions have adopted a multiple-element test when faced with social media and similar conduct occurring as part of the employee's private life. Under this test, the employer must show by a preponderance of the evidence that the off-duty conduct (1) had some nexus to the work, (2) resulted in some harm to the employer's interests, and (3) was in fact conduct which was (a) violative of some code of behavior contracted between employer and employee and (b) done with intent or knowledge that the employer's interests would suffer. {See, Martinez v. Dir., Dep't of Workforce Servs. (Ark. App. 2015); Kirby v. Washington State Dept. of Empt. (Wash. App. 2014); Miller v. Kansas City Station Corp. (Mo. App. 1999); Matter of Kotrba (S.D. 1988). But see Collingsworth General Hosp. v. Hunnicutt (Tex. 1998).} Harm in this context has included potential and intangible harm. The code of behavior at issue cannot be impliedly contracted, but it need not be a formal written contract. Courts have also pointed out that misconduct connected with work is a breach of duty owed to the employer, to be distinguished from society in general. The off-duty conduct must have "significantly infringed on legitimate employer expectations" for it to be connected with the employer's work.
Off-duty social media posts have consistently been found to be misconduct connected with employees' work when they involve a relatively direct reference to employees or customers of the employer and violate an employer policy or standard of behavior. For instance, in Jackson-George Regional Library v. Empl. Security, the court held that a library employee committed misconduct connected with her work by posting on Facebook a compromising picture of an unidentified library patron, in violation of her employer's policy to maintain strict confidentiality of all customer information. Likewise, the court in Jackson v. Walgreen Co. held that an employee committed misconduct connected with his work by posting to a coworker's Facebook page a pornographic video that the employee called an "'expose'" of two other coworkers, identified by their first names, in violation of a policy prohibiting online harassment, including sexual innuendo, of team members.
Though stated as a hypothetical about the broad category of patients, a social media post by a nurse was found in Talbot v. Desert View Care Center to constitute misconduct connected with the nurse's employment at a care center. The nurse had posted on Facebook, while off duty, about whether anyone ever had "'one of those days'" where you would like to "'slap the ever loving bat snot out of a patient who is just being a jerk.'" The court found the post violated the employer's social media policy prohibiting intimidating, threatening, or other "bullying" behaviors electronically toward facility stakeholders.
In Cummins v. Unemployment Comp. Bd. of Rev., threatening posts toward a coworker, which posts other coworkers viewed, were found to be misconduct connected with the employee's work. The employee posted on Facebook, while off duty, that she would have "'sliced [her plant manager's] throat open'" if their confrontation had not happened at work….
In contrast to the facts of these cases, when posts have not directly concerned a coworker, explicitly identified the employer, or directly concerned an individual customer or customer group, no court has found off-duty social media discourse to be misconduct connected with the employee's work. In this context, employers' social media or similar policies purportedly governing off-duty behavior have been strictly construed. While the posts may have been inappropriate, harmed the employer's business relationships, and justified discharge from employment, courts have held under the facts presented that there was too weak of a connection with the employee's work to rise to the level of disqualifying misconduct for the purpose of state unemployment benefits.
Thus, in Waverly Hts., Ltd. v. Unemployment Bd. of Review, the court upheld the determination that an employee, a vice president of human resources for a company outside of Philadelphia, Pennsylvania, did not commit willful misconduct by posting on Twitter that she was a "'VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting'" for the tagged presidential candidate. While the post did not identify the company, it was shown that additional research efforts could reveal which company the employee worked for. The company, which apparently did not wish to get involved in politics, had a social media policy to protect its reputation and confidentiality of its employees as depicted in social media, requiring that employees who identified themselves with the employer in social media conduct themselves according to this policy. The court interpreted the policy language strictly and found the employee did not violate it because she did not explicitly identify her employer in the post or otherwise hold herself out as a representative of the employer on her social media page.
In Kirby v. Washington State Dept. of Empt., the court upheld the agency's finding that a rancorous off-duty post about the employer's customer base was not misconduct connected with the employee's work for purposes of unemployment benefits, when employer policies did not explicitly encompass such conduct. A security guard was discharged for posting on Facebook while off duty, that she did not "'give [an expletive] about a police officer that got shot,'" that "'ppl prolly quit shootin em all the goddamn time'" if the police would stop shooting people, and "'karmas a bitch.'" …
The court in Kirby reasoned that the agency did not err in finding the employer had failed to demonstrate the element of nexus between the post and the employee's work. The post was made while the employee was off duty and at home, did not mention the job or the employer, and was only accessible to her "friends." The court recognized there was potential to harm the relationship with the employer's client that included law enforcement. Nevertheless, harm to the employer is but one element of whether the conduct was connected with one's work and not to be conflated with nexus. The court also found the employer had failed to demonstrate that the employee's post, an expression of the employee's personal opinion, was made with intent or knowledge that her employer's interest would suffer.
Finally, the court found the employer had failed to demonstrate the employee violated rules generally requiring positive relationships with law enforcement and professionalism, courtesy, and respect. The court explained that not only must the rules governing off-duty conduct be reasonable, they cannot be implied or impliedly violated, and the employer had failed to explain how its rules reasonably extended to off-duty, off-site social media posts….
We agree that an employer's rule of conduct must clearly apply to off-duty conduct before its violation constitutes misconduct of such a degree to render the employee ineligible to partake in the beneficent purposes of the Employment Security Law. Overly broad or vague policies governing off-duty conduct generally fail to bear a reasonable relationship to business interests and are not reasonable under all the circumstances.
No one disputes on appeal that the posts at issue here were an inappropriate and offensive means of political discourse. However, misconduct connected with work is a breach of a duty owed to the employer, not to society in general, and we cannot create special rules for what we may find distasteful. That the off-duty posts were more vitriolic than civil is relevant only to the extent the tone of the off-duty discourse violated a clear prohibition by Pinnacle, which was reasonable under all the circumstances and reasonably designed to protect Pinnacle's business relationships. The district court adopted the Tribunal's finding that the breadth of Pinnacle's social media policy, which left Pinnacle with "significant discretion to regulate the off-duty speech of its employees," was insufficient to transform Moritz' personal social media postings into misconduct connected with his work. We cannot say this was error on the record.
To resolve this appeal, it is not necessary to pass on the enforceability of Pinnacle's social media policy, and we express no opinion on that issue. Nor do we pass on whether there are any circumstances under which a violation of Pinnacle's social media policy would be sufficiently connected to Moritz' work to support a finding of disqualifying misconduct …. Instead, on this record, we find no error in the district court's conclusion that Moritz' off-duty social media posts did not amount to misconduct … because they were not sufficiently connected to his work. There was no evidence the posts were made during work hours or using work equipment and no evidence the posts affected the work performance of any Pinnacle employee. There was no evidence the social media posts were related to Pinnacle, its employees, its customers or potential customers, or its business activities and interests. And there was no evidence the social media posts were reasonably calculated to identify Moritz as a Pinnacle employee or to violate any local, state, or federal laws…. [T]here was some inconvenience and potential harm to Pinnacle as a result of Moritz' off-duty conduct, but the broad infringement upon Moritz' private life was not justified by a clearly articulated employer expectation that was reasonably related to Moritz' work.
Again, the category of acts giving an employer cause to discharge an employee from employment is much larger than the category of acts that disqualify the discharged employee from these statutorily established unemployment benefits. This opinion's analysis is limited to the denial of such benefits and should not be interpreted to be applicable to the disputed discharge of an employee….
Justice William Cassel, joined by Justice Jeffrey Funke, dissented; this post is already very long, so I will only quote a few brief excerpts:
The bank's policy established social media expectations for bank officers. The bank officer posted abhorrent comments, which the bank's customers connected with it, causing harm to its reputation. Its policy had sought to prevent such harm….
Of this court's previous cases addressing ESL disqualification for misconduct, I find Poore v. City of Minden most pertinent and persuasive. There, a city employee obtained electrical and water services from his employer for a period of 10 years without paying for them. This court reviewed its own and other state courts' decisions regarding ESL disqualifications for misconduct connected with work. This court said that "general misconduct totally divorced from an employee's job or not in any way related to his or her employer" was not misconduct justifying denial of benefits. To find no connection with employment, this court said, "overlooks the relationship existing between a governmental unit and its citizens." This court added, "Toleration of such conduct by a governmental employee would reflect unfavorably upon the employer in the eyes of the public." Here, that unfavorable reflection was the very harm the bank sought to prevent and the bank officer's posts caused….
I recognize that the bank is not a governmental body. But because of the public nature of the banking industry, the banking statutes have the effect of taking the banking industry out of private hands and placing it under state control. Thus, it seems to me, the same concern of the government regarding its reputation in the eyes of the public applies to any publicly regulated bank….
Douglas R. Novotny and Katie S. Thurber represented Moritz and the Nebraska Commissioner of Labor, who was on Moritz's side.
Note that Nebraska makes it a crime to threaten to fire an employee based on political activity: "Any person who … attempts to influence the political action of his or her employees by threatening to discharge them because of their political action … shall be guilty of a Class IV felony." Courts have generally found that such criminal prohibitions yield a civil cause of action as well, as "wrongful discharge in violation of public policy." (Nebraska law generally recognizes the wrongful discharge tort, when a firing contravenes a clear public policy prohibition set forth in, among other things, a statute; and courts in other states have applied the tort specifically to firing based on political activity.) Publicly criticizing a mayor, and likely other leading figures, may well qualify as covered "political action." And courts have also held that "[T]he actual firing of one employee for political activity constitutes for the remaining employees … a threat of similar firings"; indeed, the bank's public interpretation of its social media policy as banning such speech does seem like a threat of discharge because of, among other things, political action.
I discuss all these points in more detail here. But the court didn't discuss that Nebraska statute, presumably because the parties didn't raise it.
