The Continuing Consequences of Social Media

Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.

As I said in one of my first Legal e-Speaking blog posts, “Social media is ubiquitous.” Building on that thought, let’s take a look at a recent decision that illustrates what might result from an individual’s posting on social media. The decision is not healthcare-related, but nonetheless offers important lessons that also apply to the healthcare industry.

In Gumpher v. Unemployment Compensation Board of Review, No. 1735 C.D. 2016 (Pa. Cmwlth. Ct. Aug. 30, 2017), an individual petitioned the Commonwealth Court of Pennsylvania to reverse a ruling by the Pennsylvania Unemployment Compensation Board of Review (Review Board) that he was ineligible to receive unemployment compensation benefits. The individual worked for a company that required him to work occasional evenings. He was married with four children, one of whom was disabled and had special needs. The individual’s wife became employed by another company and worked a night shift, thus requiring that the individual watch the children in the evening. The individual was assigned to a night shift and his wife was permitted to work a day shift but was told by her employer that she would not be permitted to switch her night shift again. Thereafter, the individual was assigned another night shift. He told his supervisor that he could not do so because his wife could not switch her shift. The individual then posted the following on his social media 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.

The individual’s application was denied due to, among other things, the posting on social media was deemed to have demonstrated that the individual had chosen not to work and did not have a “necessitous and compelling reason for voluntarily quitting his employment.” The individual appealed that determination to the Review Board, which affirmed the initial ruling:

[C]laimant failed to make any inquiry if he could have [had] someone other than his mother watch his two younger children on the nights he was to work night shift.  While the [C]laimant alleged he did not have the funds, the [C]laimant failed to credibly establish with sufficient specificity that he was financially unable to handle this limited child care issue.  Rather, the Board agrees that the Claimant did not like it when he had to work the night shift and therefore simply did not make a reasonable effort to maintain his employment.

The individual appealed from that decision to the Commonwealth Court, arguing that he had a valid reason for quitting his employment. The Commonwealth Court affirmed the Review Board, concluding, among other things, that the Review Board had relied properly on the social media post and that the record demonstrated that the individual had failed to meet his burden to show that he had a sufficient reason for quitting.

What lessons might be drawn from Gumpher? First, postings can have adverse consequences. The individual admitted having made the posting and expressed regret for having done so: “I made it, I made it out of haste and regret ***.” That might be so, but the fact is that the posting was made and was relied on to the individual’s detriment. This should be a reminder to anyone who has a presence on social media to 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.

**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to, among other things, electronic information. He is a Senior Counsel with Dentons US LLP.

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