May 5, 2023
Facebook. Twitter. LinkedIn. Instagram. TikTok. The list goes on and on. Social media is ubiquitous. It affects our communities, our politics, our schools and even our workplaces. For this reason many employers have adopted social media policies regulating employee use—including off-duty use—of social media. Recently, the Nebraska Supreme Court weighed in on the enforceability of employer social media policies affecting off-duty conduct in Pinnacle Bancorp, Inc. v. Moritz, 313 Neb. 906, 987 N.W.2d 277(2023).
Pinnacle Bancorp, Inc. (“Pinnacle”) maintained a social media policy that applied to all employees. An updated policy published in March 2021 placed even greater responsibilities on bank officers “as the viewpoints they express on social media may be interpreted by customers and the community as the Bank's viewpoints.”
In 2018, Bruce Moritz began his employment with Pinnacle as an internal audit supervisor and was considered a bank officer. Moritz maintained a Twitter account that was viewable by the public. In May 2021, Pinnacle received several complaints regarding Moritz’ tweets on Twitter during an Omaha mayoral debate. While the posts did not mention Pinnacle, Moritz’ connection to Pinnacle was easily discovered on LinkedIn.
Moritz’ tweets 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 tweet 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 internal investigation confirmed Moritz was the owner of the Twitter account and revealed other posts 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 “c*@t” who had “tried to f%!k” a former political commentator's “corpse to attempt to extract sperm and create the antichrist.”
Pinnacle terminated Moritz’ employment on May 3, 2021, for violation of its social media policy. Moritz subsequently filed for unemployment benefits. In his application for unemployment benefits Moritz stated:
I published inappropriate messages on Twitter which violated [Pinnacle's] Social Media policy. When management/ownership found this information, I was terminated immediately. Prior to this incident I had never been reprimanded. I was being considered for a promotion at the time the incident took place.
Initially, the Nebraska Department of Labor determined that Moritz had been terminated for “misconduct connected with [the employee’s work]” as defined by the unemployment laws and disqualified him from benefits. Moritz then appealed to the Unemployment Appeal Tribunal declaring the “[r]eason for termination did not occur at work or during work hours. I was not aware of policy.”
A telephonic hearing was held before a Nebraska Department of Labor administrative law judge, during which Pinnacle offered into evidence the social media posts, the third-party complaints, Moritz’ 2018 handbook acknowledgment and a 2021 email directing all Pinnacle employees to the 2021 handbook updates on the “shared drive,” including, specifically, the modification of the “social media policy to address added expectations for Officers and clarification for unacceptable posts.” For the first time Moritz denied making the Twitter posts, speculating that his account had been hacked. He also testified that the posts were not related to any work he performed for Pinnacle and did not involve bank employees, customers, or Pinnacle itself.
The Tribunal reversed the initial disqualification from benefits, concluding they were not connected with his work at Pinnacle. There was no evidence that Moritz made the posts from work, during work hours, or while using Pinnacle’s equipment. Additionally, the posts did not relate to his work or job duties, nor did they reference Pinnacle, use information obtained in his capacity as an employee, or refer to other employees or known customers. For these reasons, the Tribunal determined that it did not need to decide whether Moritz made the posts or whether they violated Pinnacle’s policy.
Further, the Tribunal found that while the outside complaints to Pinnacle showed a likelihood that Moritz’ continued employment would have reflected poorly on Pinnacle, “the potential for this kind of reputational harm alone is insufficient to transform off-duty conduct of an employee into conduct connected to the employee's work.” While the Tribunal did “not suggest that it was improper for [Pinnacle] to fire [Moritz] for the conduct in question,” disqualification [from unemployment benefits] applies only to a limited subset of justifiable terminations, and “[a]n employer cannot transform off-duty conduct into conduct connected to work simply by adopting a broad policy attempting to regulate off-duty conduct.” That decision was subsequently upheld by the district court which led to another appeal to the Nebraska Supreme Court.
On March 31, 2023, the Nebraska Supreme Court affirmed the Tribunal and district court decisions finding that Moritz was not disqualified from unemployment benefits. The Court noted that the Tribunal was to decide whether the social media posts constituted “misconduct connected with [the employee’s] work” and that social media policies governing off-duty behavior are strictly construed. The Court held that “[o]verly 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.” According to the Court:
“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.”
Takeaways: While the Nebraska Supreme Court concluded the terminated employee was entitled to unemployment benefits, it is important to note that it did not find that he was wrongfully terminated, in part because that issue was not before the Court. Nevertheless, making employment decisions based upon employee social media use is fraught with legal risk. In addition to this decision, employers need to consider the National Labor Relations Act’s regulation of employer social media policies and adverse actions based upon employee social media use that amounts to “protected concerted activity” because the employees were discussing the terms and conditions of their employment online with coworkers.
At a minimum, employers should consider: (a) reviewing and updating their social media policies to ensure compliance with all applicable laws, taking into consideration whether the employer wishes to regulate off-duty social media use;(b) ensure you have your employees acknowledge receipt and review of your employee handbook when published, preferably on an annual basis (here the employer’s evidence was suspect at best); and (c) consult with employment and labor law counsel prior to taking action against an employee for social media use.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with their attorney.
