Wednesday, February 9, 2011

Can Facebooking, Tweeting, Blogging, Linking-In or Texting Be Deemed Willful Misconduct Under Pa Unemployment Law

Previously, I blogged about how employers looking for a "legitimate" reason to fire a "troublesome" employee are turning to spying on their employee's Social Media sites to find a basis for discharging the employee (or to support the termination in defending a lawsuit).  The recent NLRB case cast some publicity on this issue.  Click Here to read more on that.

I handle a lot of unemployment claims, and I am seeing this issue come up now with some greater frequency.

Says Employer:  "We fired Jane because she was saying horrible things about her boss on Twitter.  It is simply very bad for company morale."

Says Employee: "Freedom of Speech."

Cue Jeopardy Buzzer:  Freedom of Speech only protects you in public places, not in the work place.

Query:  Is Twitter a public place?  Is Tweeting or posting on Facebook at night about the Boss an action that could be deemed a basis for termination?  Is it willful misconduct?

Recently, the NLRB won at least a partial decision on behalf of a woman who was fired for posting a negative opinion about her boss on Facebook.  However, as the author of the attached Article surmises, and I agree, I do not think it will provide much protection for non-union employees.

Why? New Internet policies prohibiting company-directed criticism are being prepared by companies around the world even as we cyberspeak. Look for one to slide accross your desk in the coming months.

So?

In other words: A company can create a reasonable rule that limits what you can say about the Company via Social Media.  And I have done enough Unemployment Hearings to know something else: Repeated violations of a work rule after warning, or even a single violation of a work rule if the violation is sufficiently serious,  is enough to constitute willful misconduct under Pennsylvania Unemployment law.

So, I think it is prudent to heed the words of our Mothers:  If you don't have anything good to [Blog, Tweet, Post, Share, Announce], then [Blog, Tweet, Post, Share, Announce] nothing at all.

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