From Pinnacle Bancorp, Inc. v. Moritz, decided Mar. 31 by the Nebraska Supreme Court (in an opinion by Justice John Freudenberg, joined by Chief Justice Michael Heavican and Justices Stephanie Stacy and Jonathan Papik):
At issue in this appeal is whether social media posts directed toward local public figures from a public account of an officer of a local bank constituted misconduct in connection with work disqualifying the employee from unemployment benefits. The reason for the employee's termination was that the posts violated the employer's social media policy. The posts were not sent from work, during work hours, or using the employer's equipment. The posts did not contain information obtained in the capacity as an employee, mention the employee's position at the bank, or refer to coworkers or customers….
Moritz was fired from his internal audit supervisor job at Pinnacle Bancorp, Inc. because of complaints that Pinnacle got about Moritz's social media posts:
The Twitter posts tagged the incumbent mayor, whose husband had recently died from suicide. In one post, it was suggested the mayor "take your husband's lead … he had a good idea." Another post stated that "your husband couldn't stand you why should we?" and that "everyone will blow their brains out if you're still the mayor." …
Pinnacle's investigation revealed other posts on Moritz' Twitter account beginning in 2020 in which disparaging remarks were made about public figures. The posts included calling the chief executive officer of a local hospital "fat" and calling a politician a "cunt" who had "tried to [expletive]" a former political commentator's "corpse to attempt to extract sperm and create the antichrist."
Pinnacle's Social Media Policy provided the following though also added that "[o]fficers of the bank" (a category that included Moritz) "and their significant others have additional responsibilities as the viewpoints they express on social media may be interpreted by customers and the community as the Bank's viewpoints":
The same principles and guidelines found in the Bank's policies apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow employees or otherwise adversely affects employees, customers, suppliers, people who work on behalf of the Bank or the Bank's legitimate business interests may result in disciplinary action up to and including termination.
Carefully read these guidelines and the Bank's other policies and ensure your postings are consistent with these policies. Always comply with our Code of Conduct and Ethics and never reveal information about a customer or other confidential information. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.
Always be fair and courteous to fellow employees, suppliers and people who work on behalf of the Bank. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our open door policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage employees or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone's reputation or posts that could contribute to a hostile work environment on the basis of race, color, religion, sex, pregnancy, national origin, age, disability, military status, genetic information, marital status, sexual orientation, or any other status protected by law or Bank policy.
Moritz claimed unemployment benefits, but was largely disqualified on the grounds that he had been fired for misconduct. The court concluded otherwise, applying Nebraska's unemployment compensation law, under which "to determine whether an employee is partially or totally ineligible for benefits, one must consider (1) whether there was an act of proven misconduct and (2) whether the misconduct was connected with the employee's work":
