Can Tweeting, Blogging, Posting, etc. During Non-Work Hours Be Deemed Willful Misconduct

Posted over 3 years ago. Applies to Pennsylvania, 1 helpful vote

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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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John A. Gallagher Blog

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