Employee Terminated For Ill-Advised Facebook Post Gets Unemployment Benefits

January 6, 2015 · by Venkat Balasubramani · in Content Regulation

This is an unemployment benefits case. Sarah Black, who was employed by Puget Sound Security Patrol made the following post to her Facebook account in February 2012:

u kno wat, I do not give a f[* * *] about a police officer that got shot, if they quit fu[*]kin wit ppl, ppl prolly quit shootin em all the goddamn time karmas a bitch.

Among her duties at PSSP, She worked as a security officer at the Tacoma Public Utilities building.

shutterstock / chrisdorney: “You’re Fired Rubber Stamp Over a White Background”

One of Black’s Facebook friends sent a copy of the post to TPU’s customer service department, who then notified Black’s supervisor. Black’s supervisor notified PSSP’s CEO and Executive Vice President for Employee Relations.

There court says there was no dispute as to whether Black could be fired. Her employer (being a private entity) could undoubtedly terminate her and indeed did so. The question was whether Black was entitled to unemployment benefits.

Under Washington state law, an employee terminated for misconduct connected with her work is not entitled to benefits. In order to show misconduct connected with the employee’s work an employer must show (1) some nexus between the conduct and work; (2) resulting in harm to the employer’s interest; and (3) that the conduct violated an applicable code “contracted for between employer and employee” and done with intent or knowledge that the employer’s interest would suffer.

Surprisingly, the court says that the test is not satisfied here. The court finds several facts determinative. First, the post was made on Black’s own time and away from her place of employment. Second, Black set her privacy level so that only her “friends” could access the post (she had about 100 friends). And third, the employer did not have a social media policy in place:

[PSSP, the employer] did not have any specific social media policies or guidelines and had not given [Black] and other employees instructions with respect to communications on Facebook or similar channels of communication.

The court takes a few detours into the nooks and crannies of the Washington Administrative Code as it pertains to eligibility for unemployment benefits, but despite the employer’s valiant attempts, finds that benefits are properly awarded. Among other arguments, the court says that Black’s on-the-job interaction with law enforcement officers (and a policy requiring “positive relationships” with law enforcement) is not a sufficient clear policy that Black is alleged to have violated. The employer also argued that Black intended to harm the employer’s interest because she intended to communicate the post to TPU, a client of her employer. The court also finds this insufficient:

Black could intend to communicate the post to her Facebook friends and not intend for her Facebook friends to communicate the post to TPU. The fact that one of her Facebook friends was a TPU employee does not mean Black intended for that friend to communicate the post to his employer.

Finally, the court also finds that the post did not fall within the statute’s definition of “misconduct,” which was defined by reference to a list of non-exhaustive factors.

This is a tough result for the employer, who is almost forced to take action to terminate employee, once the post is brought to its attention. Perhaps the court is merely staying true to the case law and regulations, but its definition of “misconduct related to employment” seems cramped at best, to the extent it does not encompass a social media post that bashes an employer’s clientele. For what it’s worth, although the court says that it’s beyond dispute that the employer could legally terminate the employee, the NLRB has taken a broad view of when employees can be terminated when voicing discontent on social media, even when bashing co-workers. See the Triple Play Sports Bar matter discussed in this post: “NLRB Invalidates Employer’s Blogging Policy And Reverses Firing Based On Facebook Posts“.

The court’s focus on the lack of a social media policy seems excessively formalistic, given that the employer had an informal policy that arguably applied. [This seems like another data point in favor of having a social media policy.] As the court notes, courts in several other jurisdictions have come to different conclusions (presumably based on statutory differences) as to a terminated employee’s entitlement to benefits. (See Nurse Properly Fired and Denied Unemployment Due to Facebook Rant and Employee’s Twitter Rant Means He Doesn’t Get Unemployment Benefits–Burns v. UCBR.)

As far as social media employment-related cases go, this is an outlier in that it takes a favorable view of the scope of a post’s dissemination and intended audience based on the privacy settings employed by the employee. That’s not usually the case, and the privacy settings are normally used against the employee. The court does not make any observation about the number of friends Black had. 100 may be within the Dunbar’s number but still feels like a large number of people to communicate something to and still expect it to remain private.

[Eric’s comment: I assume Black’s job required her to work with law enforcement. If so, her post almost certainly undermined her ability to work effectively with that key constituent. This reminds me of Shepherd v. McGee, where a social worker’s social media rant allegedly “permanently compromised” her future credibility as a witness in court. When a social media post casts great doubt about a key part of the job, I see that as fairly work-related.]

The post in question was made in 2012. The court does not discuss what events the post reacted to, but one wonders whether the court would have had a different view if the post was made in the aftermath of Ferguson or a similarly high profile event.

This ruling feels appeals-worthy. It seems like it would be of interest to a broad base of employers.

Case citation: Puget Sound Security Patrol, Inc. v. Wash. Dept. of Emp. Security, No. 70738-8-I (Wash. Ct. App. Dec. 22, 2014).

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