

In Kirby v. Department of Employment Security, a Washington appeals court held that a security guard terminated over violent Facebook posts was entitled to unemployment compensation benefits because the employer had not established that the termination was for “misconduct connected with [her] work.”  The security guard, Sarah Black, was employed by Puget Sound Security Patrol (“PSSP”). In her position, she was responsible for patrolling a public utilities building and at times she came in contact with police officers.

In February 2012, while at home and off-duty, Black posted the following message on Facebook:

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

Black had set her Facebook privacy level so that her posts were only accessible to the approximately 100 people designated as her friends on Facebook.  One of Black’s Facebook friends, an employee at the building she patrolled, saw the post, and it made its way to the management at PSSP.  Upon learning of the post, PSSP terminated Black’s employment.

Black applied for and received unemployment compensation benefits. PSSP appealed and the administrative law judge affirmed. PSSP continued to appeal, but the benefits grant was affirmed at every level, including by the Department Commissioner and then the trial court.  PSSP finally appealed to the Washington Court of Appeals, which also affirmed.

The appeals court explained that Black could only be denied unemployment compensation benefits if her termination was for “misconduct connected with [her] work.”  In Washington, in order to be considered connected with an employee’s work, the misconduct must:  (1) have some “nexus” with the employee’s work; (2) result in some “harm to the employer’s interest;” and (3) be either “violative of some code of behavior contracted for between employer and employee,” or done with “intent or knowledge that the employer’s interest would suffer.”

The court of appeals held that here, the first requirement was not met. There was no “nexus” between the Facebook post and Black’s work because the post was made while Black was off-site and off-duty, did not reference her employer or her job, and was only accessible to her Facebook friends.

Similarly, the third requirement was not met.  The post was not “violative of some code of behavior contracted for between employer and employee” because the employer did not have a social media policy or other similar guidelines.  The court rejected the employer’s argument that its written policies requiring “professionalism, courtesy, and respect” encompassed social media activity, as these rules did not extend to off-duty, off-site social media posts.  Further, because there was no evidence Black intended her employer to even see the post, she did not act with intent “that the employer’s interest would suffer.”

The Kirby decision is a reminder to employers that, although they may have legitimate reasons for terminating an employee for off-duty, off-site social media activity, they still may be liable for unemployment benefits depending on the applicable state standard.  Further, the court’s analysis suggests that the result may have been different had the employer implemented a social media policy, providing another reminder to employers of the importance of implementing a carefully drafted social media policy and then training employees regarding that policy.

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