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A human resources manager who was fired after posting a tweet during the 2016 presidential election is still eligible for unemployment benefits because the tweet didn’t specifically mention her employer, a Pennsylvania court said Nov. 13.
Kathleen M. Junglcaus, vice president of human resources at a retirement community near Philadelphia, was fired Sept. 27, 2016, after posting a tweet on her personal Twitter page that said: "@realDonaldTrump I am the VP of HR in comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!”
Waverly Heights Ltd. had appealed a ruling of the Unemployment Compensation Board of Review, which found that Jungclaus hadn’t violated the company’s social media policy, and awarded her unemployment compensation ( Waverly Heights, Ltd. v. Unemployment Comp. Bd. of Review , Pa. Commw. Ct., No. 312 C.D. 2017, Opinion 11/13/17 ).
The company argued that “AA” in the tweet stood for African American and that the tweet was “racially charged” and violated company policy, according to the opinion. A referee agreed that the tweet violated company policy and fell below expected standards of behavior. An adminsitrative referee said Jungclaus was ineligible for benefits due to willful misconduct under Section 402(e) of Pennsylvania’s Unemployment Compensation Law. The board, however, reversed the referee’s opinion, finding that while Jungclaus did identify herself as a vice president of human resources at a company outside of Philadelphia, the statement was “overly-broad” and insufficient to draw a connection.
“Thus, the Board did not err in concluding that Claimant did not violate Employer’s Social Media Policy,” Pennsylvania Commonwealth Court judge Michael H. Wojcik wrote in his opinion on behalf of a three-judge panel. “Because Claimant did not identify Employer in her tweet or otherwise hold herself out as a representative of Employer on her personal Twitter page, the policy did not apply.”
The employer also failed to prove that the tweet was “racially charged,” the opinion says.
Jungclaus has also sued in federal court over the incident, alleging age and sex discrimination, retaliation, a hostile work environment, and defamation ( Jungclaus v. Waverly Heights Ltd. , E.D. Pa., No. 2:17-cv-04462, 10/6/17 ).
“There’s no way you can read that social media policy as barring what she did,” Mark Daniel Schwartz, Jungclaus’ attorney, told Bloomberg Law Nov. 14. “Saying that this could be traced to Waverly is like playing Beatles’ records backwards.”
Waverly Heights is represented by Grace M. Deon and Erin Kernan Aronson of Eastburn and Gray P.C. in Doylestown. Pa. Deon was out of the country Nov. 14 and Aronson didn’t immediately reply to a phone call seeking comment.
To contact the reporter on this story: Leslie A. Pappas in Philadelphia at LPappas@bna.com
To contact the editor responsible for this story: Terence Hyland at email@example.com
The opinion is at http://src.bna.com/ucK.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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