Employment Law Daily HR VP fired for ‘racially charged’ Trump tweet still gets unemployment benefits
Thursday, November 16, 2017

HR VP fired for ‘racially charged’ Trump tweet still gets unemployment benefits

By Joy P. Waltemath, J.D.

Agreeing with a state unemployment compensation review board that a fired HR VP’s tweet did not violate her employer’s social media policy, a Pennsylvania state court held that her tweet was not willful misconduct under state law. Although the tweet said “I am the VP of HR in a comp outside of philly …” it did not identify her employer, nor did she otherwise hold herself out as representing her employer on her personal Twitter feed. Even if her employer had not failed to identify (and thus had waived) a violation of its communication policy as a separate basis for finding willful misconduct, the court found that the HR VP merely “followed” her employer on Twitter, which was not the same as “linking” to her employer’s website. And, while the tweet said that a survey showed “100% AA employees voting Trump,” the court did not find that necessarily referred to African Americans (Waverly Heights, Ltd. v. Unemployment Compensation Board of Review, November 13 2017, Wojcik, M.).

Trump tweet. A continuing care retirement community had employed the Vice President of Human Resources from 1997 until it fired her in September 2016 because of a tweet posted on her personal Twitter page in July 2016, which read: “@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!”

Unemployment entitlement. On the fired VP’s initial application for unemployment compensation, the referee found she had violated the employer’s social media policy and accordingly was ineligible for “willful misconduct.” But on appeal to the review board, the board reversed, finding no policy violation because she had not identified herself with her employer—merely saying she was the VP of HR in a company outside of Philadelphia was not enough. The fact that she followed her employer’s Twitter account and could through additional research be identified with her employer was not sufficient to show she “identified” herself with her employer.

Identified with employer? Considering the employer’s appeal, the state court reminded that whether conduct rises to the level of willful misconduct is a question of law for it to determine. The employer’s argument was that the HR VP had “readily identified herself” with the employer because she said she was a VP of HR at a company outside of Philadelphia and she followed the employer’s Twitter feed; searching her name or the employer’s directory “would quickly link the two together.” And the employer cited both its social media policy and other provisions of its communication policy, which it argued the VP had violated by “linking” to its website.

No social media policy violation. According to the court, it was clear that the company terminated its HR VP for violating its social media policy because it believed she represented herself as a company vice president. But agreeing with the board, the court found she did not identify herself with her employer on her personal Twitter account—only as a VP of HR of an unnamed company outside of Philadelphia. Following the employer’s Twitter account is not the same as “linking” to either the employer’s Twitter page or website, and her personal Twitter feed did not represent the employer. The fact that an investigation could ultimately determine the identity of the employer, that was not the standard presented by its social media policy, which said “Employer expects employees who identify themselves with Employer in either internal or external social media to conduct themselves according to this policy.”

No communication policy violation. On appeal, the employer claimed in addition that the VP had violated other provisions of its communications policy, but it had not identified a violation of the communications policy as grounds for dismissal—only the social media policy, which is all it claimed had been violated at the unemployment hearing. As such, it had waived the issue. But even absent a waiver, the employer failed to prove the VP had violated the communications policy, which provides that employees may not “link from a personal blog or social networking site to [Employer’s] internal or external website.” Again, stressed the court, “following” the employer’s Twitter account is not proof that the VP had a “link” to her employer’s website on her social media page.

Tweet “racially charged?” The employer also contended that the VP’s “racially charged” social media post and related conduct “demonstrated wanton and willful disregard” for its interests and showed she had inappropriately conducted an informal survey, in which she “singled out African-American staff and asked them their political preferences.” Emphasizing that it was not questioning the employer’s right to terminate the employee, which was irrelevant to whether she was entitled to unemployment benefits, the court approved the board’s finding that there was no willful misconduct.

Specifically, the court found the record did not support the employer’s assumption that “AA” stands for “African American,” as the HR VP had claimed it stood for “administrative assistants,” and there are various meanings for the acronym “AA,” the first of which is “Alcoholics Anonymous,” followed by “African Americans.” But even assuming that AA stands for “African American,” the tweet did not “single out” “African-American” staff regarding their political preferences—it only referred to an “informal survey of our employees,” not just African-American employees. And there was no proof, beyond the tweet itself, that the VP had actually taken a survey or poll of political preferences or that she did so during company time. The company’s own witness testified that the VP merely shared a conversation with her regarding political preferences. “Mere discussions about current affairs, such as an upcoming Presidential Election, do not rise to a level of disqualifying willful misconduct,” concluded the court.

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