Social Media – “Exhibit A” in Litigation

A recent case from the Commonwealth Court of Pennsylvania illustrates in vivid detail the potentially disastrous litigation consequences for employees of making ill-advised postings on social media, including Facebook.  It also illustrates the utility for employers of monitoring such postings for use in litigation, within appropriate legal boundaries.

In Gumpher v. Unemployment Bd. of Review, No. 1735 C.D. 2016 (Pa. Cmwlth. Ct. Aug. 30, 2017), the Plaintiff had worked as a painter for Epic Metals Corporation for just under two years.  At the commencement of his employment, the Plaintiff, who was married and had numerous children, including one with special needs, was informed that he may be required to work occasional evenings.  While the Plaintiff’s wife was not working at the time, she later secured employment that required her to work evenings.  The Plaintiff’s wife would watch the children during the day, and the Plaintiff would watch the children in the evening. 

In March of 2016, the Plaintiff was assigned to work the night shift for a period of one week.  The Plaintiff spoke to his employer and indicated that he could not work this shift, due to child care issues and his wife’s work schedule.  On March 14, 2016, the Plaintiff posted the following 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].”  The Plaintiff ceased reporting to work, and filed a claim for unemployment benefits.

Citing to the Plaintiff’s Facebook post, a referee denied unemployment benefits, finding that the Plaintiff simply “chose not to” work.  Due to the Plaintiff’s statement on his Facebook page that it was “time to relax for a while,” the referee held that the Plaintiff did not have a necessitous and compelling reason to voluntarily quit his employment.  The Plaintiff appealed to Pennsylvania’s Unemployment Compensation Board of Review, which affirmed the referee’s decision.  In addition to adopting the referee’s findings concerning the Plaintiff’s Facebook post, the Board also found that the Plaintiff had not credibly established that he was unable to make alternative arrangements with regard to child care.

The Plaintiff proceeded to appeal to the Commonwealth Court, arguing that he did indeed have a “necessitous and compelling reason” for voluntarily abandoning his job: namely, his need to care for his children.  The Court acknowledged that, under previous case law, the need to care for children may be considering a necessitous and compelling reason for abandoning employment.  It added, however, that an employee making such an argument must generally prove the exhaustion of alternative child care arrangements, which the Plaintiff simply had not done in this case.

Notably, the Plaintiff also argued that it was improper for the Board to rely on his Facebook post in order to deny benefits.  The Court noted that the Plaintiff had fully admitted to making the Facebook post, and apologized for making it.  It also cited to previous case law for the proposition that social media postings may be considered by the Court.  Further, the Court noted that the Facebook post was just one factor that had supported the Board’s denial of benefits.

The Gumpher case is a reminder that Courts may consider social media postings by employees which undermine or contradict arguments or factual allegations advanced by the employee in litigation.  It behooves employers to, within appropriate legal parameters, monitor such postings for use in litigation.

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