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September 26, 2017 Practice Points

Employment Decision Shows Value of Discovering Social Media Posts

Can a social media post make or break a case?

By Ronald Hedges

Can a social media post make or break a case? It evidently did in Gumpher v. Unemployment Compensation Board of Review, No. 1735 C.D. 2016 (Pa. Cmwlth. Ct. Aug. 30, 2017).

At issue was a claimant’s eligibility to receive unemployment compensation benefits. The claimant was employed by a company that required him to work occasional evenings. He was married with four children, one of whom was disabled and had special needs. After his wife took a job that required her to work a night shift, the claimant needed his evenings free for childcare. When his employer assigned him another night shift, he told his supervisor that he could not do so because his wife could not switch her shift. The claimant then made this posting on his Facebook page: “Time for a change, Work decided to have 2nd Shift, (Picked for that) don’t like, so chose not to . . . it’s choice you can make when retired. There are other jobs. time to relax for a while [sic].” He then stopped going to work and applied for unemployment compensation benefits.

A referee denied the application because, among other things, the Facebook posting showed that the claimant had chosen not to work and did not have a “necessitous and compelling reason for voluntarily quitting his employment.” The review board affirmed the referee’s decision. The claimant then appealed to the Commonwealth Court, arguing that he had a valid reason for quitting. The Commonwealth Court affirmed the review board, concluding, among other things, that the review board had relied properly on the Facebook posting, and that the record demonstrated that the claimant had failed to meet his burden to show that he had a sufficient reason for quitting.

Gumpher offers several lessons. In the context of civil litigation, the value of discovering social media posts can be considerable, depending on the case. From another viewpoint, anyone who has a presence on social media should pause and reflect before posting anything. Second, employers may (within parameters defined by contract and law) monitor or view postings made by employees and use those postings before administrative tribunals and courts.

Ronald Hedges is with Dentons in New York, New York.

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