The importance of having an employee social media policy was at the forefront in a recent Commonwealth Court decision. In Pennsylvania State System of Higher Education v. PASSHE Officers Association, the Court was asked to decide whether the lack of such a policy would prevent an employer (Kutztown University) from terminating a campus patrol officer who engaged in inflammatory social media postings from his private account.
The Commonwealth Court held that the University could do so, but the ruling and the underlying facts serve as a warning for the need for such policies.
The facts of the underlying claim are ones that are becoming more common – where a public employee posts on private social media about matters of public concern. Thinking that they are doing so under the umbrella of the First Amendment, those posters cry foul when disciplined. On February 3, 2021, anonymous student and faculty members attending Kutztown University posted screenshots taken from a campus patrol officer’s Facebook page. The officer’s posts were controversial, highly opinionated and often aggressive, while explicitly identifying himself as a campus police officer. His posts were directed to several topics, ranging from his views on the Confederate Flag, the LGBTQ community, his opinions about Muslims and the Constitution, and posts that certain minorities were out to “rob us, car jack us, and shoot us.” In all, more than 40 posts by the officer were identified and flagged.
Following the discovery and release of the postings, several thousand people signed petitions demanding the University remove him. On February 8, 2021, the officer was placed on administrative leave pending investigation into his posts. After an investigation, he was terminated.
The PASSHE Officers’ Association filed a grievance on his behalf, which the Arbitrator sustained because the University lacked a public policy for employee social media accounts. The Arbitrator ruled that, with the lack of a policy, the officer was not on notice that his personal social media posts could be cause for discipline. The University was then directed to reinstate him and give him back his former position as an officer with back pay, seniority, and benefits.
This was not the end of the story. PASSHE appealed the award to the Commonwealth Court, arguing that the Arbitrator’s decision violated public policy. PASSHE noted that the University was in the right given its generalized, “well-defined and dominant public policy” that no discriminating speech towards any minority community, including immigrants and religions (of which were commonly present in the officer’s posts) would be tolerated. The Association again relied on the argument that the arbitration award itself did not violate public policy because the University did not have a specific social media policy in place that could have warned the officer that his personal social media account could have such repercussions.
In a 2-1 split decision, the Commonwealth Court came down in favor of the University. The majority held that, regardless of whether Kutztown had a social media policy, there is a “dominant” and “well-defined” public policy prohibiting discrimination, and that this policy is even more critical in law enforcement given its authority, role of trust in the community and oversight of the public.
In reaching its conclusion, the Court turned to a public policy exception test: first, the reviewing court must identify the remedy imposed by the arbitrator; second, it must discuss whether the remedy implicates a well-defined, dominant public policy and not “general considerations of supposed public interests;” and third, the reviewing court must conclude whether the employer would be forced to violate the implicated policy by the Arbitrator’s Award.
Here, given the nature and content of the posts, the University successfully argued that the posts were clearly discriminatory and that, in the absence of discipline, the University would be perceived as tolerating the discriminatory conduct and doing so in a manner that would erode the public’s trust in law enforcement. As has been often held by the appellate courts, the First Amendment and other Constitutional protections do not afford one an impenetrable shield for such conduct (at least, as it relates to keeping their place in public employment).
What we can learn:
While the majority upheld the termination and stated that “No employer, even one bound by a collective bargaining agreement, should be forced to retain an employee so diametrically opposed to that employer’s mission,” a social media policy is worth its ounce of prevention. The fix is well worth the pound of cure. It would have avoided many of the employee’s arguments and, more generally, serves to put the employee on notice, particularly that, in today’s online world, private social media use CAN be a basis for public employee discipline.
Our Attorneys | Areas of Practice | Contact Us
All rights reserved. This publication may not be reproduced without the express written permission of Siana Law. This publication is designed to provide general information relating to the covered subject matter. None of the information is offered, nor should be construed, as legal advice. Although prepared by professionals, the materials contained in this publication are not intended to be utilized as a substitute for obtaining legal or other professional advice. We encourage you to obtain legal or other professional guidance regarding those specific matters for which you require assistance.