Pinnacle Bancorp v. Moritz ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/31/2023 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906Pinnacle Bancorp, Inc., appellant, v. Bruce
Moritz and Nebraska Commissioner
of Labor, appellees.
___ N.W.2d ___
Filed March 31, 2023. No. S-22-326.
1. Employment Security: Judgments: Appeal and Error. In an appeal
from the appeal tribunal to the district court regarding unemployment
benefits, the district court conducts the review de novo on the record,
but on review by the Nebraska Court of Appeals or the Nebraska
Supreme Court, the judgment of the district court may be reversed,
vacated, or modified for errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms to
law, is supported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable.
3. ____: ____. Whether a decision conforms to law is by definition a ques-
tion of law, in connection with which an appellate court reaches a con-
clusion independent of that reached by the lower court.
4. ____: ____. An appellate court, in reviewing a district court judgment
for errors appearing on the record, will not substitute its factual find-
ings for those of the district court where competent evidence supports
those findings.
5. Employment Security. The Employment Security Law is to be liberally
construed so that its beneficent purpose of paying benefits to involun-
tarily unemployed workers may be accomplished.
6. Employment Security: Words and Phrases. “Misconduct,” for pur-
poses of Neb. Rev. Stat. § 48-628.10 (Reissue 2021), includes behavior
which evidences (1) wanton and willful disregard of the employer’s
interests, (2) deliberate violation of rules, (3) disregard of standards of
behavior which the employer can rightfully expect from the employee,
or (4) negligence which manifests culpability, wrongful intent, evil
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906design, or intentional and substantial disregard of the employer’s inter-
ests or of the employee’s duties and obligations.
7. Employment Security: Negligence. An employee’s actions do not rise
to the level of misconduct if the individual is merely unable to perform
the duties of the job, but must involve at least culpable negligence,
which, on a sliding scale, is much closer to an intentional disregard of
the employer’s interests than it is to mere negligence.
8. Employment Security: Proof. An employer does not meet its burden
of proving misconduct connected with the employee’s work by sim-
ply showing the employee was discharged for violating a rule, policy,
or order.
9. Employment Security. Violation of an order is misconduct only if the
order was reasonable under all the circumstances.
10. ____. An employer’s rule of conduct must clearly apply to off-duty
conduct before its violation constitutes misconduct of such a degree to
render the employee ineligible to partake in the beneficent purposes of
the Employment Security Law.
11. ____. Misconduct connected with work is a breach of a duty owed to the
employer, not to society in general.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Leigh Campbell Joyce, of Baird Holm, L.L.P., for appellant.
Douglas R. Novotny, of Novotny Law, L.L.C., and Katie S.
Thurber for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Engelman, District Judge.
Freudenberg, J.
INTRODUCTION
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 vio-
lated the employer’s social media policy. The posts were not
sent from work, during work hours, or using the employer’s
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313 Nebraska Reports
PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906equipment. 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. The district court
determined the posts were made to the employee’s account but
were not connected to the employee’s work. Finding no error
on the record, we affirm.
BACKGROUND
Bruce Moritz was employed at Pinnacle Bancorp, Inc.
(Pinnacle), as an internal audit supervisor and was consid-
ered a bank officer. He began his employment with Pinnacle
in 2018.
Social Media Posts
In May 2021, Pinnacle received several complaints regard-
ing activity on Moritz’ social media account during a local
mayoral debate. The posts were made under a Twitter account,
“Bruce Moritz @brucemoritz.” It was a public account.
The posts did not mention Pinnacle. Nevertheless, Moritz’
connection to Pinnacle was discovered by the people making
the complaints after finding that information on a separate
social media platform, LinkedIn. Moritz’ LinkedIn account
also utilized his full name. LinkedIn listed his position at
Pinnacle.
The Twitter posts tagged the incumbent mayor, whose hus-
band had recently died from suicide. In one post, it was sug-
gested 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 confirmed Moritz was the owner of the Twitter
account after seeing a picture posted on the account of Moritz’
son attending a local basketball game. Pinnacle’s investiga-
tion revealed other posts on Moritz’ Twitter account begin-
ning 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
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906“cunt” who had “tried to [expletive]” a former political com-
mentator’s “corpse to attempt to extract sperm and create
the antichrist.”
In a short telephone conversation on May 3, 2021, Pinnacle
informed Moritz he was being terminated from his employment
because of his social media activity. Moritz was not told what
the posts were or on what platform they were made. Moritz
asked if there was room for discussion and was told that there
was not.
Pinnacle’s Social Media Policy
A two-page social media policy updated and published in
March 2021 applied to all employees, but further stated that
“[o]fficers of the bank and their significant others have addi-
tional responsibilities as the viewpoints they express on social
media may be interpreted by customers and the community
as the Bank’s viewpoints.” This language respecting officers
was new. Otherwise, the previous 2018 policy and the updated
2021 policy provided the same general social media provisions
as follows:
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 busi-
ness 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 cus-
tomer or other confidential information. Inappropriate
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906postings that may include discriminatory remarks,
harassment, and threats of violence or similar inap-
propriate or unlawful conduct will not be tolerated and
may subject you to disciplinary action up to and includ-
ing 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 reason-
ably 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 pro-
tected by law or Bank policy.
Claim for Unemployment Benefits
Moritz submitted with the Nebraska Department of Labor
(Department) an application for unemployment benefits. In
what appears to be an electronic questionnaire submitted to
the Department by Moritz, Moritz described that he had been
accused of violating Pinnacle’s social media policy and that
he did in fact violate Pinnacle’s social media policy; how-
ever, he was unaware such policy existed. Moritz stated:
“I published inappropriate messages on Twitter which vio-
lated [Pinnacle’s] Social Media policy. When management/
ownership found this information, I was terminated immedi-
ately. Prior to this incident I had never been reprimanded. I
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906was being considered for a promotion at the time the inci-
dent took place.” The Department determined that Moritz was
disqualified for benefits for the week in which the discharge
occurred plus 14 weeks. This was a result of its finding that
Moritz had been discharged from his job for misconduct in
connection with his work. The total amount of unemployment
benefits reduced as a result of this determination was $6,384.
Appeal Tribunal
Moritz filed an appeal with the Department’s Nebraska
Appeal Tribunal (Tribunal). As his reason for appeal, he pro-
vided: “Reason for termination did not occur at work or during
work hours. I was not aware of policy.” A telephonic hearing
was held before an administrative law judge.
Pinnacle’s vice president of human resources testified at
the hearing that the specific language of Pinnacle’s social
media policy, which Pinnacle determined Moritz had violated,
was in both the 2018 and 2021 versions of the social media
policy and stated: “‘Inappropriate postings that include dis-
criminatory remarks or constitute harassment, hate speech,
whether or not they include profane/obscene language, threats
of violence or similar inappropriate or unlawful conduct will
not be tolerated and may be subject to disciplinary action
up to and including termination.’” She explained Pinnacle’s
decision to terminate Moritz’ employment was based on
the posts regarding the mayor’s husband’s suicide. Other
posts “were more confirmation that this — those were not a
unique situation.”
The Tribunal received into evidence Moritz’ acknowledg-
ment of receiving a copy of the employee handbook and that
he was to follow Pinnacle’s policies, which acknowledgment
Moritz had signed in 2018. It also received into evidence a
copy of the social media policy in effect in 2018, the 2021
handbook changes and updated social media policy, and an
email directing all Pinnacle employees to the 2021 hand-
book updates, including, specifically, the modification of
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906the “social media policy to address added expectations for
Officers and clarification for unacceptable posts.” It received
into evidence the social media posts and the complaints about
the posts. The vice president of human resources explained
that all Pinnacle institutions share the same social media
policy, which is accessible to employees on the “shared drive”
and the internet. Moritz would have been either given a physi-
cal copy of the handbook or directed to an electronic copy
before acknowledging it.
Moritz, who also testified at the hearing, asserted the posts
were not related to any work he performed for Pinnacle and
did not involve bank employees, customers, or Pinnacle itself.
Moritz also raised for the first time an assertion that he did
not make the social media posts at issue. Moritz submitted an
“exhibit” in which he asserted he did not make the posts in
question and they “could have been made by someone who
hacked my account or created an account to look like mine.”
He claimed he “rarely if ever use[s] Twitter and was not aware
of those posts being made in my name.”
Moritz testified at the hearing that he did not make the posts.
Moritz testified he opened the subject Twitter account in 2008
or 2009 and was not actively using it in 2021. He testified he
was “not aware of anything — any activity that was going on
with it.” He theorized either that the posts could have come
from an account that was created to look as a duplicate of an
account or that his name and password were hacked. Moritz
testified he had tried to research and find out what had hap-
pened, but he was not able to find any answers.
Moritz explained that immediately after his employment
was terminated, he looked up his name on Twitter and found
the posts. Moritz testified that he then tried to log in to the
Twitter account, using “a couple email addresses and several
password combinations,” but was unsuccessful. When cross-
examined as to how he knew to look up his name on the Twitter
platform, given that Pinnacle did not tell him which social
media platform the subject posts were on, he responded, “I
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906searched very quickly after [being terminated] for my name
in every conceivable platform that I could think of or I was
aware that I, at some point in time, had access to.”
It was undisputed at the hearing that Pinnacle did not ask
Moritz if he was responsible for the posts when terminating his
employment. During the conversation communicating Moritz’
termination, Moritz did not deny making the social media
posts, but Moritz explained he “was so devastated and so
crushed and destroyed” that he was “frankly, just reeling and in
a very emotional state” “trying to piece together what had hap-
pened.” Moreover, Moritz pointed out it was “made . . . quite
clear” that Pinnacle was not giving him “a second opportunity
and just some way to be able to explain.” Moritz admitted that
after discovering the posts and learning that he could not log in
to his account, he did not attempt to reach out to Pinnacle and
explain he was not in control of the account and did not make
the posts.
The vice president of human resources testified that shortly
after the conversation communicating to Moritz his termination
of employment, Pinnacle checked the Twitter account. Pinnacle
found the account had been deleted. On cross-examination,
Moritz was asked, “Are you aware that, within minutes of
[the] conversation [terminating your employment], that account
was deleted?” Moritz answered, “No, I was not.” When the
judge later asked if Moritz discovered the Twitter account
had been deleted when he saw the posts under his name and
tried to log into that account after being terminated, Moritz
answered, “Basically, since — yes, I did find that it has now
been deleted.”
The Tribunal reversed the “Notice of Determination” and
held that Moritz was entitled to benefits for the weeks claimed.
The Tribunal concluded it did not need to resolve the issues
of whether Moritz made the posts or whether the posts vio-
lated a clear written policy of the employer because, even
assuming both were true, the social media posts were not
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906connected with the claimant’s work as required under Neb.
Rev. Stat. § 48-628.10 (Reissue 2021).
The Tribunal found that the posts were made in Moritz’ per-
sonal capacity. There was no evidence the posts were sent from
work, during work hours, or using the employer’s equipment.
Furthermore, the subject matter of the posts was not related to
Moritz’ work or job duties as an auditor and did not reference
the employer, use information obtained in Moritz’ capacity
as an employee, or specifically refer to another employee or
known customer of the employer. There was also no evidence
that Moritz ever used the social media account for any work-
related purpose or that he used his position at Pinnacle to
increase the reach or credibility of the social media account.
Although Pinnacle’s customers discovered Moritz was an
employee of Pinnacle, the Tribunal observed they did so only
by conducting their own internet research.
The Tribunal further found that while the complaints to
Pinnacle showed a likelihood that Moritz’ continued employ-
ment would have reflected poorly on Pinnacle, “the potential
for this kind of reputational harm alone is insufficient to trans-
form off-duty conduct of an employee into conduct connected
to the employee’s work.”
Pinnacle’s social media policy, explained the Tribunal, was
insufficient to transform Moritz’ personal social media post-
ings into misconduct connected with his work. The Tribunal
observed the broadness of the policy, which left Pinnacle
with “significant discretion to regulate the off-duty speech of
its employees.”
While the Tribunal did “not suggest that it was improper
for [Pinnacle] to fire [Moritz] for the conduct in question,”
disqualification under § 48-628.10 applies only to a limited
subset of justifiable terminations, and “[a]n employer cannot
transform off-duty conduct into conduct connected to work
simply by adopting a broad policy attempting to regulate off-
duty conduct.”
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906District Court
Pinnacle filed a petition for review of the Tribunal’s deci-
sion pursuant to Neb. Rev. Stat. § 84-917 (Cum. Supp. 2022)
of the Administrative Procedure Act. 1 It asked that the district
court reverse the determination of the Tribunal and find that
Moritz is disqualified from receiving unemployment compen-
sation benefits due to having engaged in misconduct or gross
misconduct.
Following a hearing, in its de novo review, the district court
adopted the findings of fact by the Tribunal. It affirmed the
Tribunal’s decision that, assuming without deciding Moritz
made the posts, Moritz was discharged under nondisqualify-
ing conditions and was therefore entitled to benefits for the
weeks claimed, if otherwise eligible. The court reasoned that
Moritz’ “misconduct, if assumed true, was totally divorced
from his position with Pinnacle and . . . was not connected with
his work.” Pinnacle appeals.
ASSIGNMENTS OF ERROR
Pinnacle assigns that the district court erred (1) when it
held that Moritz’ online misconduct was not connected to his
employment, (2) in ruling that Moritz was not disqualified
from receiving unemployment benefits, and (3) in failing to
make a finding that Moritz had created the social media posts
that resulted in his employment’s termination.
STANDARD OF REVIEW
[1,2] In an appeal from the appeal tribunal to the district
court regarding unemployment benefits, the district court con-
ducts the review de novo on the record, but on review by
the Nebraska Court of Appeals or the Nebraska Supreme
Court, the judgment of the district court may be reversed,
vacated, or modified for errors appearing on the record. 2
1
See Neb. Rev. Stat. §§ 84-901 through 84-920 (Reissue 2014 & Cum.
Supp. 2022).
2
Badawi v. Albin, 311 Neb. 603, 973 N.W.2d 714 (2022).
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906When reviewing a judgment for errors appearing on the
record, the inquiry is whether the decision conforms to law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. 3
[3] Whether a decision conforms to law is by definition
a question of law, in connection with which an appellate
court reaches a conclusion independent of that reached by the
lower court. 4
[4] An appellate court, in reviewing a district court judg-
ment for errors appearing on the record, will not substitute its
factual findings for those of the district court where competent
evidence supports those findings. 5
ANALYSIS
[5] The Employment Security Law is to be liberally con-
strued so that its beneficent purpose of paying benefits to
involuntarily unemployed workers may be accomplished. 6
Section 48-628.10 provides that an employee discharged for
“misconduct connected with [the employee’s] work” is sub-
ject to a partial disqualification. Further, if that misconduct
was “gross, flagrant, and willful, or was unlawful,” 7 the
employee is totally disqualified from receiving benefits with
respect to wage credits earned prior to discharge for such
misconduct. Thus, under § 48-628.10, to determine whether
an employee is partially or totally ineligible for benefits, one
must consider (1) whether there was an act of proven miscon-
duct and (2) whether the misconduct was connected with the
employee’s work.
[6,7] “Misconduct” is not defined in § 48-628.10, but we
have long defined misconduct to include behavior which
3
Id.
4
Id.
5
Id.
6
See, e.g., Great Plains Container Co. v. Hiatt, 225 Neb. 558, 407 N.W.2d
166 (1987).
7
§ 48-628.10(3).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906evidences (1) wanton and willful disregard of the employer’s
interests, (2) deliberate violation of rules, (3) disregard of stan-
dards of behavior which the employer can rightfully expect
from the employee, or (4) negligence which manifests culpabil-
ity, wrongful intent, evil design, or intentional and substantial
disregard of the employer’s interests or of the employee’s
duties and obligations. 8 We have explained that an employee’s
actions do not rise to the level of misconduct if the individual
is merely unable to perform the duties of the job, 9 but must
involve at least “culpable negligence,” which, “on a slid-
ing scale,” “is much closer to an intentional disregard of the
employer’s interests than it is to mere negligence.” 10
This test of misconduct was developed under case law
involving acts occurring during scheduled working hours and
having an easily discernible direct effect on the employer’s
business interests. Disqualifying misconduct under such cir-
cumstances has included unexcused or excessive absences that
are harmful to the employer, 11 fraudulent or falsified work
reports or receipts, 12 and the deliberate disobedience of rea-
sonable directions directly connected to the quality of the
work product. 13
8
Badawi v. Albin, supra note 2.
9
Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 791 N.W.2d 607(2010).
10
Maxon v. City of Grand Island, 273 Neb. 647, 656, 731 N.W.2d 882, 889
(2007).
11
See, O’Keefe v. Tabitha, Inc., 224 Neb. 574, 399 N.W.2d 798 (1987);
McCorison v. City of Lincoln, 215 Neb. 474, 339 N.W.2d 294 (1983). See,
also, Tuma v. Omaha Public Power Dist., 226 Neb. 19, 409 N.W.2d 306(1987); Strauss v. Square D Co., 201 Neb. 571, 270 N.W.2d 917 (1978).
12
See, Caudill v. Surgical Concepts, Inc., 236 Neb. 266, 460 N.W.2d 662(1990); Smith v. Sorensen, 222 Neb. 599, 386 N.W.2d 5 (1986).
13
See Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981), overruled on
other grounds, Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1(1982).
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906[8,9] Fewer cases under the Employment Security Law have
involved acts occurring while off duty. The relevant statutes
do not define “connected with [the employee’s] work,” as
stated in § 48-628.10(3), and we have not set forth a list of
elements or an explicit definition for this concept. Some of the
elements of our test for “misconduct,” however, describe some
connection to the employer’s interests by referencing disregard
of the employer’s interests or standards the employer can right-
fully expect from the employee and either culpable negligence
or substantial disregard with respect to the employer’s inter-
ests or the employee’s duties. Further, we have clarified that
deliberate violation of rules will not be misconduct connected
with the work without the rules’ being reasonably designed to
protect the employer’s business relationship. 14 An employer
does not meet its burden of proving misconduct connected
with the employee’s work by simply showing the employee
was discharged for violating a rule, policy, or order. 15 We have
also noted with approval decisions of the Tribunal designated
by the Department as precedential and which reason that vio-
lation of an order is misconduct only if the order was reason-
able under all the circumstances. 16
In cases exploring whether a policy or order governing
off-duty conduct is reasonable, we have weighed the likely
effect on an employer’s interests against the imposition upon
the employee’s private life. For instance, we held in Snyder
Industries, Inc. v. Otto 17 that it was not misconduct con­
nected with the employee’s work to violate a company rule
forbidding all contact between current employees and ex-
employees. Although adopted in response to numerous leaks
14
See Badawi v. Albin, supra note 2.
15
See id.
16
See Badawi v. Albin, supra note 2, citing 224 Neb. Admin. Code ch. 1,
§ 019 (2014). See, also, In re Marshall, 12 Neb. App. Trib. 5030 (2012);
In re Svoboda, 04 Neb. App. Trib. 0258 (2004); In re Broomfield, 91 Neb.
App. Trib. 0707 (1991).
17
Snyder Industries, Inc. v. Otto, 212 Neb. 40, 321 N.W.2d 77 (1982).
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Cite as 313 Neb. 906of information from the business to competitors, we found that
the rule did not bear a reasonable relationship to the employ-
er’s interests.
In so holding in Snyder Industries, Inc., we did not deny
there might be a relationship between the employer’s interests
and the prohibition. Nevertheless, we focused on the extent of
that relationship in comparison to the impact on employees’
personal lives. We said it was “more logical to believe” that
production secrets were being obtained by competitors “by the
hiring away of [its] employees,” and the rule forbidding asso-
ciation of current employees with former employees “would
not prevent such practices.” 18 “Furthermore,” we explained,
“the basis for the rule involved loses all sense of reason when
one substitutes husband and wife, or father and son, for the two
friends involved in the relationship forbidden here,” 19 implying
that such an intrusion into an employee’s private life would
be patently absurd. We said, “We do not believe that a rule
which forbids all contact between friends and acquaintances in
the interest of preventing ‘leaks’ of production secrets simply
on the basis that one or the other is no longer an employee of
the company bears a reasonable relationship to the employ-
er’s interest.” 20
Similarly, in Great Plains Container Co. v. Hiatt, 21 we held
that a violation of a work policy prohibiting excessive gar-
nishments was not misconduct connected with the employee’s
work. We conceded that excessive garnishments might be
a nuisance to an employer, and thus have some negative
impact on the employer. Nevertheless, we pointed out that
the garnishments were the result of the employee’s conduct in
“his private life.” 22 We held the employee’s violation of the
18
Id. at 44, 321 N.W.2d at 80.
19
Id.20
Id.21
Great Plains Container Co. v. Hiatt, supra note 6.
22
Id. at 561, 407 N.W.2d at 169.
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PINNACLE BANCORP V. MORITZ
Cite as 313 Neb. 906rule prohibiting excessive garnishments did not bear a “‘rea-
sonable application and relation to the employee’s task[s]’”
at work. 23
In contrast to Snyder Industries, Inc., and Hiatt, we held
in Jensen v. Mary Lanning Memorial Hosp. 24 that a nurs-
ing assistant committed misconduct connected with her work
by continuing to disregard her employer’s warnings that her
off-duty consumption of alcohol should not be detectible by
patients when she was working. We explained that regardless
of whether the nursing assistant was intoxicated on the job, it
was “not unreasonable” for the hospital where she worked to
require she report to work without the odor of alcohol on her
breath. 25 We explained that the nursing assistant necessarily
came into close personal contact with patients who could be
distressed by the odor and lose confidence in the abilities of the
hospital’s employees to properly care for them.
In Dolan v. Svitak 26 and Poore v. City of Minden, 27 we found
that illegal off-duty conduct bore a reasonable relationship to
the employees’ work. In Dolan, we held that off-duty illegal
drug use was misconduct connected with the employee’s work
even if it did not affect the employee’s work performance.
The employee had failed drug testing conducted under a clear
employer policy of which the employee had been notified. We
explained that the drug-free policy of the company, adopted
to enhance the company’s reputation in the community by
showing it had taken a visible stand against illegal drug
use, was reasonably designed to protect the employer’s busi-
ness relationship.
23
See id. at 562, 407 N.W.2d at 170.
24
Jensen v. Mary Lanning Memorial Hosp., 233 Neb. 66, 443 N.W.2d 891(1989).
25
Id. at 70, 443 N.W.2d at 894.
26
Dolan v. Svitak, 247 Neb. 410, 527 N.W.2d 621 (1995). See, also, Douglas
Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998).
27
Poore v. City of Minden, 237 Neb. 78, 464 N.W.2d 791 (1991).
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Cite as 313 Neb. 906In Poore, the off-duty theft by a city sanitation worker of the
city’s electrical and water services was found to be misconduct
connected with the employee’s work. We held the theft “was
directly related to the employee’s ability to handle his duties” 28
because of “the relationship existing between a governmental
unit and its citizens” was such that “[t]oleration of such con-
duct by a governmental employer would reflect unfavorably
upon the employer in the eyes of the public.” 29
We have not addressed under what circumstances off-duty
social media discourse is misconduct connected with the
employee’s work. Other jurisdictions have adopted a multiple-
element test when faced with social media and similar conduct
occurring as part of the employee’s private life. Under this
test, the employer must show by a preponderance of the evi-
dence that the off-duty conduct (1) had some nexus to the
work, (2) resulted in some harm to the employer’s interests,
and (3) was in fact conduct which was (a) violative of some
code of behavior contracted between employer and employee
and (b) done with intent or knowledge that the employer’s
interests would suffer. 30 Harm in this context has included
potential and intangible harm. 31 The code of behavior at issue
cannot be impliedly contracted, but it need not be a formal
written contract. 32 Courts have also pointed out that miscon-
duct connected with work is a breach of duty owed to the
28
Id. at 87, 464 N.W.2d at 797.
29
Id. at 87, 464 N.W.2d at 796.
30
See, Martinez v. Dir., Dep’t of Workforce Servs., 2015 Ark. App. 717, 2,
478 S.W.3d 276 (2015); Kirby v. Washington State Dept. of Empt., 185
Wash. App. 706, 342 P.3d 1151 (2014); Miller v. Kansas City Station
Corp., 996 S.W.2d 120 (Mo. App. 1999); Matter of Kotrba, 418 N.W.2d
313 (S.D. 1988). See, also, 76 Am. Jur. 2d Unemployment Compensation
§ 79 (2016); Annot., 18 A.L.R.6th 195 (2006). But see Collingsworth
General Hosp. v. Hunnicutt, 988 S.W.2d 706 (Tex. 1998).
31
See Kirby v. Washington State Dept. of Empt., supra note 30.
32
See id.
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Cite as 313 Neb. 906employer, to be distinguished from society in general. 33 The
off-duty conduct must have “significantly infringed on legiti-
mate employer expectations” for it to be connected with the
employer’s work. 34
Off-duty social media posts have consistently been found
to be misconduct connected with employees’ work when they
involve a relatively direct reference to employees or custom-
ers of the employer and violate an employer policy or stan-
dard of behavior. 35 For instance, in Jackson-George Regional
Library v. Empl. Security, 36 the court held that a library
employee committed misconduct connected with her work by
posting on Facebook a compromising picture of an unidenti-
fied library patron, in violation of her employer’s policy to
maintain strict confidentiality of all customer information.
Likewise, the court in Jackson v. Walgreen Co. held that an
employee committed misconduct connected with his work by
posting to a coworker’s Facebook page a pornographic video
that the employee called an “‘expose’” of two other cowork-
ers, identified by their first names, in violation of a policy
prohibiting online harassment, including sexual innuendo, of
team members. 37
Though stated as a hypothetical about the broad category
of patients, a social media post by a nurse was found in
Talbot v. Desert View Care Center 38 to constitute misconduct
33
Weaver v. Wallace, 565 S.W.2d 867 (Tenn. 1978).
34
Rodman v. New Mexico Employment Sec. Dept., 107 N.M. 758, 761, 764
P.2d 1316, 1319 (1988).
35
See, Cummins v. Unemployment Comp. Bd. of Rev., 207 A.3d 990 (Pa.
Commw. 2019); Jackson-George Library v. Empl. Security, 226 So. 3d
133 (Miss. App. 2017); Beagan v. RI Dept. of Labor and Training, 162
A.3d 619 (R.I. 2017); Jackson v. Walgreen Co., 516 S.W.3d 391 (Mo. App.
2017); Talbot v. Desert View Care Center, 156 Idaho 517, 328 P.3d 497(2014).
36
Jackson-George Library v. Empl. Security, supra note 35.
37
Jackson v. Walgreen Co., supra note 35, 516 S.W.3d at 394.
38
Talbot v. Desert View Care Center, supra note 35.
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Cite as 313 Neb. 906connected with the nurse’s employment at a care center. The
nurse had posted on Facebook, while off duty, about whether
anyone ever had “‘one of those days’” where you would
like to “‘slap the ever loving bat snot out of a patient who
is just being a jerk.’” 39 The court found the post violated
the employer’s social media policy prohibiting intimidat-
ing, threatening, or other “bullying” behaviors electronically
toward facility stakeholders. 40
In Cummins v. Unemployment Comp. Bd. of Rev., 41 threat-
ening posts toward a coworker, which posts other coworkers
viewed, were found to be misconduct connected with the
employee’s work. The employee posted on Facebook, while
off duty, that she would have “‘sliced [her plant manager’s]
throat open’” if their confrontation had not happened at
work. 42 The court noted that although the post did not men-
tion the name of the company or the coworker, coworkers had
access to the social media account and understood to whom it
referred. The court also discussed that although the statement
was perhaps not a threat that would constitute a violation of
the law or of the rules of the social media platform where
the post was made, the employees who read the post took it
seriously and feared for their coworker’s safety. The court
found the statements, which were overtly menacing toward a
supervisor in response to a confrontation at work, disregarded
the standard of behavior an employer can rightfully expect of
an employee.
In contrast to the facts of these cases, when posts have
not directly concerned a coworker, explicitly identified the
employer, or directly concerned an individual customer or
customer group, no court has found off-duty social media
39
Id. at 519, 328 P.3d at 499.
40
Id. at 522, 328 P.3d at 502.
41
Cummins v. Unemployment Comp. Bd. of Rev., supra note 35.
42
Id. at 993.
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Cite as 313 Neb. 906discourse to be misconduct connected with the employee’s
work. 43 In this context, employers’ social media or similar
policies purportedly governing off-duty behavior have been
strictly construed. 44 While the posts may have been inappropri-
ate, harmed the employer’s business relationships, and justified
discharge from employment, courts have held under the facts
presented that there was too weak of a connection with the
employee’s work to rise to the level of disqualifying miscon-
duct for the purpose of state unemployment benefits. 45
Thus, in Waverly Hts., Ltd. v. Unemployment Bd. of
Review, 46 the court upheld the determination that an employee,
a vice president of human resources for a company outside of
Philadelphia, Pennsylvania, did not commit willful miscon-
duct by posting on Twitter that she was a “‘VP of HR in a
comp outside of philly an informal survey of our employees
shows 100% AA employees voting’” for the tagged presiden-
tial candidate. While the post did not identify the company, it
was shown that additional research efforts could reveal which
company the employee worked for. The company, which appar-
ently did not wish to get involved in politics, had a social
media policy to protect its reputation and confidentiality of its
employees as depicted in social media, requiring that employ-
ees who identified themselves with the employer in social
media conduct themselves according to this policy. The court
interpreted the policy language strictly and found the employee
did not violate it because she did not explicitly identify
43
See, Waverly Hts. v. Unemployment Bd. of Review, 173 A.3d 1224 (Pa.
Commw. 2017); Beagan v. RI Dept. of Labor and Training, supra note
35; Martinez v. Dir., Dep’t of Workforce Servs., supra note 30; Kirby v.
Washington State Dept. of Empt., supra note 30.
44
See id.
45
See id.
46
Waverly Hts. v. Unemployment Bd. of Review, supra note 43, 173 A.3d at
1226.
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Cite as 313 Neb. 906her employer in the post or otherwise hold herself out as a rep-
resentative of the employer on her social media page.
In Kirby v. Washington State Dept. of Empt., 47 the court
upheld the agency’s finding that a rancorous off-duty post
about the employer’s customer base was not misconduct
connected with the employee’s work for purposes of unem-
ployment benefits, when employer policies did not explicitly
encompass such conduct. A security guard was discharged for
posting on Facebook while off duty, that she did not “‘give
[an expletive] about a police officer that got shot,’” that “‘ppl
prolly quit shootin em all the goddamn time’” if the police
would stop shooting people, and “‘karmas a bitch.’” 48 The
approximately 100 people designated as her “friends” and
having direct access to the comment included a coworker who
reported the message.
The court in Kirby reasoned that the agency did not err in
finding the employer had failed to demonstrate the element
of nexus between the post and the employee’s work. The post
was made while the employee was off duty and at home, did
not mention the job or the employer, and was only accessible
to her “friends.” The court recognized there was potential to
harm the relationship with the employer’s client that included
law enforcement. Nevertheless, harm to the employer is but
one element of whether the conduct was connected with one’s
work and not to be conflated with nexus. The court also found
the employer had failed to demonstrate that the employee’s
post, an expression of the employee’s personal opinion, was
made with intent or knowledge that her employer’s inter-
est would suffer. Finally, the court found the employer had
failed to demonstrate the employee violated rules generally
requiring positive relationships with law enforcement and
professionalism, courtesy, and respect. The court explained
47
Kirby v. Washington State Dept. of Empt., supra note 30.
48
Id. at 711, 342 P.3d at 1153.
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Cite as 313 Neb. 906that not only must the rules governing off-duty conduct be
reasonable, they cannot be implied or impliedly violated, and
the employer had failed to explain how its rules reasonably
extended to off-duty, off-site social media posts.
For the sake of completeness, the court in Kirby went on to
hold, for the same reasons, that the employee had not commit-
ted misconduct in the first instance. Misconduct was defined
by regulations as including “‘[d]eliberate violations or disre-
gard of standards of behavior which the employer has the right
to expect of an employee’” and “‘[c]arelessness or negligence
of such degree or recurrence to show an intentional or substan-
tial disregard of the employer’s interest.’” 49
[10] We agree that an employer’s rule of conduct must
clearly apply to off-duty conduct before its violation consti-
tutes misconduct of such a degree to render the employee ineli-
gible to partake in the beneficent purposes of the Employment
Security Law. 50 Overly broad or vague policies governing
off-duty conduct generally fail to bear a reasonable relation-
ship to business interests and are not reasonable under all
the circumstances.
[11] No one disputes on appeal that the posts at issue here
were an inappropriate and offensive means of political dis-
course. However, misconduct connected with work is a breach
of a duty owed to the employer, not to society in general, and
we cannot create special rules for what we may find distaste-
ful. That the off-duty posts were more vitriolic than civil is
relevant only to the extent the tone of the off-duty discourse
violated a clear prohibition by Pinnacle, which was reason-
able under all the circumstances and reasonably designed to
protect Pinnacle’s business relationships. The district court
adopted the Tribunal’s finding that the breadth of Pinnacle’s
social media policy, which left Pinnacle with “significant
49
Id. at 724, 342 P.3d at 1159.
50
See, e.g., Great Plains Container Co. v. Hiatt, supra note 6.
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Cite as 313 Neb. 906discretion to regulate the off-duty speech of its employees,”
was insufficient to transform Moritz’ personal social media
postings into misconduct connected with his work. We cannot
say this was error on the record.
To resolve this appeal, it is not necessary to pass on
the enforceability of Pinnacle’s social media policy, and
we express no opinion on that issue. Nor do we pass on
whether there are any circumstances under which a violation
of Pinnacle’s social media policy would be sufficiently con-
nected to Moritz’ work to support a finding of disqualifying
misconduct under §48-628.10. Instead, on this record, we find
no error in the district court’s conclusion that Moritz’ off-
duty social media posts did not amount to misconduct under
§ 48-628.10 because they were not sufficiently connected to
his work. There was no evidence the posts were made dur-
ing work hours or using work equipment and no evidence
the posts affected the work performance of any Pinnacle
employee. There was no evidence the social media posts were
related to Pinnacle, its employees, its customers or potential
customers, or its business activities and interests. And there
was no evidence the social media posts were reasonably cal-
culated to identify Moritz as a Pinnacle employee or to violate
any local, state, or federal laws.
We thus affirm the district court’s determination that the
posts were part of Moritz’ personal life, “totally divorced”
from his work, which posts could not be reasonably connected
with work through Pinnacle’s broadly worded social media pol-
icy. Like in Snyder Industries, Inc., and Great Plains Container
Co., there was some inconvenience and potential harm to
Pinnacle as a result of Moritz’ off-duty conduct, but the broad
infringement upon Moritz’ private life was not justified by a
clearly articulated employer expectation that was reasonably
related to Moritz’ work.
Again, the category of acts giving an employer cause to
discharge an employee from employment is much larger
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Cite as 313 Neb. 906than the category of acts that disqualify the discharged employee
from these statutorily established unemployment benefits. This
opinion’s analysis is limited to the denial of such benefits and
should not be interpreted to be applicable to the disputed dis-
charge of an employee.
Because Moritz did not commit misconduct connected with
his work, he could not have committed gross misconduct con-
nected with his work. And we do not reach Pinnacle’s assign-
ment of error concerning the lack of findings of the authorship
of the posts, because that is not determinative of the outcome
of this appeal.
CONCLUSION
The district court did not err in finding that Moritz did not
commit misconduct connected with his work and, accordingly,
that he was not disqualified from unemployment benefits.
We affirm.
Affirmed.
Miller-Lerman, J., not participating.
Cassel, J., dissenting.
I respectfully dissent. Bruce Moritz (the bank officer) was
an officer of Pinnacle Bancorp, Inc. (the bank). The bank’s
policy established social media expectations for bank officers.
The bank officer posted abhorrent comments, which the bank’s
customers connected with it, causing harm to its reputation. Its
policy had sought to prevent such harm.
After an initial administrative partial disqualification of the
bank officer’s benefits under the Employment Security Law
(ESL), 1 based upon “misconduct connected with [the bank
officer’s] work,” 2 an administrative appeal reversed the dis-
qualification. The appeal tribunal did not make complete find-
ings of fact. Upon the bank’s appeal to the district court
1
See Neb. Rev. Stat. §§ 48-601 to 48-683 (Reissue 2021 & Cum. Supp.
2022).
2
See § 48-628.10.
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Cite as 313 Neb. 906under the Administrative Procedure Act (APA), 3 the district
court also did not make complete findings of fact but instead
relied upon the assumptions of the appeal tribunal and affirmed
the appeal tribunal’s full award.
On appeal to this court, the majority opinion perceives no
connection between the bank officer’s abhorrent comments on
social media and the bank officer’s work. I disagree in light of
the applicable standard of review.
Some historical background is necessary before I can set
forth the correct standard of review. Unemployment compen-
sation benefits and mandatory unemployment insurance are
creatures of statute, unknown to the common law. 4 They are a
product of the Great Depression. 5 Nebraska’s statute originated
in 1937. 6 This court has long held that the ESL is to be liber-
ally construed to accomplish its beneficent purposes. 7
Because of the statutes applicable prior to July 1, 1989,
this court generally did not characterize ESL questions as
issues of fact, law, or mixed fact and law. During that period,
ESL statutes governed judicial review by the district court, 8
appeal to the Supreme Court (predating the Nebraska Court
of Appeals), 9 and the standard of review to be applied by
both courts. 10 A proposition of the Nebraska Supreme Court
at that time stated: “This court reviews cases regarding unem-
ployment benefits de novo on the record and will retry all
3
See Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2014 & Cum. Supp.
2022).
4
Dean v. South Dakota Dept. of Labor, 367 N.W.2d 779 (S.D. 1985).
5
Id.6
See 1937 Neb. Laws, ch. 108, § 1, p. 370.
7
See, e.g., Dillard Dept. Stores v. Polinsky, 247 Neb. 821, 530 N.W.2d 637(1995); Hunter v. Miller, 148 Neb. 402, 27 N.W.2d 638 (1947).
8
See § 48-638 (Reissue 1984).
9
See § 48-640 (Reissue 1984).
10
See § 48-639 (Reissue 1984).
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Cite as 313 Neb. 906issues of fact and reach an independent conclusion.” 11 In
one case, without citation, this court said, “We agree that
what conduct constitutes ‘misconduct’ in a given case is a
fact question.” 12 But otherwise, I have found no published
Nebraska decision characterizing ESL questions in one manner
or another. And prior to July 1, 1989, it made no difference—
all questions were reviewed by this court de novo.
Effective on July 1, 1989, important changes occurred.
In the ESL statutes, appeals pursuant to the APA were sub-
stituted for district court judicial review 13 and appeal to the
Supreme Court, 14 and the ESL-specific standard of review was
repealed. 15 At the same time, the standards of review under
the APA for the district court 16 and the Supreme Court 17 were
essentially swapped. 18 As relevant to this appeal, the “after”
standards remain the same.
As relevant here, the ESL statute authorizing appeal to the
district court specifies that the appeal shall be “governed by
the [APA].” 19 In an APA review proceeding, the district court
reviews the agency’s decision de novo on the record of the
agency and may affirm, reverse, or modify the decision of
the agency or remand the case for further proceedings. 20
11
Stuart v. Omaha Porkers, 213 Neb. 838, 838-39, 331 N.W.2d 544, 545
(1983). See, also, A. Borchman Sons v. Carpenter, 166 Neb. 322, 89
N.W.2d 123 (1958), overruled on other grounds, Gilmore Constr. Co. v.
Miller, 213 Neb. 133, 327 N.W.2d 628 (1982).
12
Smith v. Sorensen, 222 Neb. 599, 603, 386 N.W.2d 5, 8 (1986).
13
See § 48-638 (Reissue 1988).
14
See § 48-640 (Reissue 1988).
15
See § 48-639 (Reissue 1988).
16
See 1989 Neb. Laws, L.B. 213, § 1.
17
See 1989 Neb. Laws, L.B. 213, § 2.
18
Cf. 1989 Neb. Laws, L.B. 213, § 1, and 1989 Neb. Laws, L.B. 213 § 2.
19
§ 48-638(2) (Reissue 2021).
20
Houghton v. Nebraska Dept. of Rev., 308 Neb. 188, 953 N.W.2d 237(2021).
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Cite as 313 Neb. 906The standard of review of this court is well settled. A judg-
ment or final order rendered by a district court in a judicial
review pursuant to the APA may be reversed, vacated, or mod-
ified by an appellate court for errors appearing on the record. 21
When reviewing an order of a district court under the APA
for errors appearing on the record, the inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable. 22
Whether a decision conforms to law and the interpretation of
statutes present questions of law, in connection with which
an appellate court reaches a conclusion independent of that
reached by the lower court. 23
I digress to observe that this court has long recognized that
the lower and higher courts’ standards of review are interde-
pendent. 24 “It is a logical impossibility for [an appellate] court
to review the district court judgment for errors appearing on
the record if the district court incorrectly limited its review
and, thus, failed to make factual determinations, as it must
under a de novo on the record review.” 25
Only a few years later in an APA appeal, this court stated
that the district court was therefore obliged to make an
independent determination of the facts without reference to
the determinations of fact made by the Nebraska Appeal
Tribunal, whose decision was being reviewed. 26 In that case,
the Supreme Court determined that the district court’s appli-
cation of the former limited standard of review constituted
21
Mollring v. Nebraska Dept. of Health & Human Servs., ante p. 251, 983
N.W.2d 536 (2023).
22
Id.23
Id.24
See Bell Fed. Credit Union v. Christianson, 237 Neb. 519, 466 N.W.2d
546 (1991).
25
Id. at 522-23, 466 N.W.2d at 549.
26
Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303(1997).
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Cite as 313 Neb. 906plain error and required that the cause be remanded to the
district court for a de novo review of the record. 27 The same
result followed in later appeals. 28 Although it is recognized as
plain error, reversal is not always required. 29
But because that problem may not be recognized until the
appeal is before the Supreme Court or Court of Appeals, I
suggest that the district court should make complete find-
ings of fact rather than accepting assumptions of an appeal
tribunal. Under the right circumstances of such incomplete
findings, remand to the district court for such findings may
be required. 30
Here, the district court adopted the findings and reason-
ing of the appeal tribunal. Consequently, it did not expressly
determine that the bank officer posted the social media com-
ments. Instead, it assumed that he did so and that the com-
ments were “misconduct.” I do not believe that the majority
is inclined to find plain error related to these assumptions.
So I return to the issue framed by the majority—whether the
assumed misconduct was “connected with [the bank offi-
cer’s] work.” 31
At this point, it becomes critical to determine whether the
question is one of fact, one of law, or a mixed question of fact
and law. None of this court’s ESL misconduct cases after 1989
furnishes an answer.
This makes a huge difference. If it were a question of fact,
the review of this court would be limited to whether it was
supported by substantial evidence and was neither arbitrary,
capricious, nor unreasonable. That would be a very deferen-
tial standard. Some states employ that standard, often based
27
Id.28
See, Medicine Creek v. Middle Republican NRD, 296 Neb. 1, 892 N.W.2d
74 (2017); Zwygart v. State, 270 Neb. 41, 699 N.W.2d 362 (2005).
29
See Bell Fed. Credit Union v. Christianson, supra note 24.
30
See id.31
See § 48-628.10.
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Cite as 313 Neb. 906upon the wording of that state’s employment security statute. 32
On the other hand, if it were a question of law, no deference
would be given to the district court’s decision regarding the
connection between an employee’s misconduct and his or her
work. Some states use this approach. 33 Other states’ analyses
seem to turn upon statutory language. 34
I conclude that under Nebraska law, the question whether
misconduct is connected with an employee’s work is a mixed
question of fact and law. This approach is used by numerous
states. 35 And I believe it is most consistent with the approach
used by this court in all of the cases since 1989. Here, in light
of the district court’s assumptions, there is no real dispute
regarding the relevant facts. Thus, it becomes a question of
law and I give no deference to the district court’s decision on
the question of whether the bank officer’s misconduct (which
was assumed by the district court) was “connected with his
. . . work.”
Although the district court assumed the existence of mis-
conduct, I assert that that question is itself a mixed one of
32
See, e.g., Keller v. Ameritel Inns, Inc., 164 Idaho 636, 434 P.3d 811(2019); Smith v. Sampson, 816 P.2d 902 (Alaska 1991); Whitmer v. Dir.,
Dept. of Workforce Serv’s., 2017 Ark. App. 367, 525 S.W.3d 45 (2017);
Benard v. Review Bd., 997 N.E.2d 1077 (Ind. App. 2013).
33
See, e.g., Gilchrist v. Okl. Employment Sec. Com’n, 94 P.3d 72 (Okla.
2004); Moody v. Northland Royalty Co., 281 Mont. 26, 930 P.2d 1100(1997); Rasmussen v. South Dakota Dept. of Labor, 510 N.W.2d 655 (S.D.
1993); Markel v. City of Circle Pines, 479 N.W.2d 382 (Minn. 1992);
Dortch v. Zoltek Corp., 493 S.W.3d 18 (Mo. App. 2016).
34
See, e.g., Mohamed v. Fletcher Allen Health Care, 192 Vt. 204, 58 A.3d
222 (2012); Gillins v. Unemp. Comp. Bd. of Review, 534 Pa. 590, 633 A.2d
1150 (1993).
35
See, e.g., Clark v. Department of Workforce Services, 378 P.3d 310 (Wyo.
2016); Lovgren v. Job Service North Dakota, 515 N.W.2d 143 (N.D.
1994); Kirby v. State, Dept. of Emp. Sec., 179 Wash. App. 834, 320 P.3d
123 (2014); Hurst v. Department of Employment Sec., 393 Ill. App. 3d
323, 913 N.E.2d 1067, 332 Ill. Dec. 777 (2009); Wells Fargo Alarm Svcs.
v. VA Empl. Com’n, 24 Va. App. 377, 482 S.E.2d 841 (1997).
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Cite as 313 Neb. 906fact and law. And assuming the relevant facts are true, I cer-
tainly agree, as a matter of law, that the bank officer’s social
media comments were misconduct.
“Misconduct” is not defined in § 48-628.10, but this court
has defined it to include behavior which evidences (1) wanton
and willful disregard of the employer’s interests, (2) deliber-
ate violation of rules, (3) disregard of standards of behavior
which the employer can rightfully expect from the employee,
or (4) negligence which manifests culpability, wrongful intent,
evil design, or intentional and substantial disregard of the
employer’s interests or of the employee’s duties and obliga-
tions. 36 This court’s original definition of misconduct 37 differs
very little from the most recent articulation. 38 This definition
has never drawn a legislative amendment or specification.
Thus, I presume that the Legislature has acquiesced in this
court’s definition. 39
Only one question remains: Was the misconduct “con-
nected with [the bank officer’s] work”? I would conclude that
it was.
The bank established a social media policy, communicated
it to the bank officer and his fellow officers, and employed it
to protect the bank’s legitimate interests. The policy explained
that “social media also presents certain risks and carries with it
certain responsibilities.” It emphasized that “your social media
communications can have either positive or negative impacts
upon others.” Thus, people “make statements they would never
make if speaking directly with someone out of concern that
their words might upset or anger the other person.” It warned
that “you are solely responsible for what you post online.”
36
Badawi v. Albin, 311 Neb. 603, 973 N.W.2d 714 (2022).
37
See Bristol v. Hanlon, 210 Neb. 37, 312 N.W.2d 694 (1981), overruled on
other grounds, Heimsoth v. Kellwood Co., 211 Neb. 167, 318 N.W.2d 1(1982).
38
See Badawi v. Albin, supra note 36.
39
See State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022).
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Cite as 313 Neb. 906Further, it cautioned that “any of your conduct that adversely
affects . . . customers . . . or the [b]ank’s legitimate business
interests may result in disciplinary action up to and includ-
ing termination.” Thus, it said, “postings that . . . constitute
harassment, hate speech (whether or not they include profane/
obscene language), threats of violence or similar inappropriate
or unlawful conduct will not be tolerated.”
Although the social media policy applied to all of the
bank’s employees, the policy imposed a higher standard on
bank officers. It emphasized that “[o]fficers of the bank 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 [b]ank’s viewpoints.”
(Emphasis supplied.) In other words, the social media policy,
with this higher standard for bank officers, was communicated
to the bank officer here.
The majority accepts that the bank officer used a social
media platform. The majority accepts that the bank officer
posted comments that “referenced the recent suicide of the
incumbent Mayor’s husband, encouraged the Mayor to follow
her ‘husband’s lead[,’] and said ‘your husband couldn’t stand
you why should we’ and ‘everyone will blow their brains out
if you’re still the mayor.’” The majority accepts that the bank
received three complaints regarding these posts within 24
hours of when they were posted.
Having been warned by the bank against such social media
comments, the bank officer made them anyway. I would con-
clude that these social media comments were made in “wanton
and willful disregard of the employer’s interests.” They were
a “deliberate violation of [the bank’s] rules” regarding social
media. The bank officer made the comments in “disregard of
standards of behavior which the [bank] can rightfully expect
from the [bank officer].” And they “manifest[ed] . . . inten-
tional and substantial disregard of the [bank’s] interests [and]
of the [bank officer’s] duties and obligations.”
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Cite as 313 Neb. 906Of this court’s previous cases addressing ESL disqualifica-
tion for misconduct, I find Poore v. City of Minden 40 most
pertinent and persuasive. There, a city employee obtained
electrical and water services from his employer for a period
of 10 years without paying for them. This court reviewed its
own and other state courts’ decisions regarding ESL disquali-
fications for misconduct connected with work. This court said
that “general misconduct totally divorced from an employee’s
job or not in any way related to his or her employer” was
not misconduct justifying denial of benefits. 41 To find no
connection with employment, this court said, “overlooks the
relationship existing between a governmental unit and its
citizens.” 42 This court added, “Toleration of such conduct by
a governmental employee would reflect unfavorably upon the
employer in the eyes of the public.” 43 Here, that unfavorable
reflection was the very harm the bank sought to prevent and
the bank officer’s posts caused.
I recognize that the bank is not a governmental body. But
because of the public nature of the banking industry, the bank-
ing statutes have the effect of taking the banking industry out
of private hands and placing it under state control. 44 Thus, it
seems to me, the same concern of the government regarding
its reputation in the eyes of the public applies to any publicly
regulated bank.
The majority here focuses on minutiae and misses the big-
ger picture. It is true that the bank officer did not use the
bank’s equipment or post his comments from work. But the
bank’s policies made clear that its officers were subject to
higher standards than other employees. The bank was entitled
40
Poore v. City of Minden, 237 Neb. 78, 464 N.W.2d 791 (1991).
41
Id. at 86, 464 N.W.2d at 796.
42
Id. at 87, 464 N.W.2d at 796.
43
Id.44
In re Invol. Dissolution of Battle Creek State Bank, 254 Neb. 120, 575
N.W.2d 356 (1998).
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Cite as 313 Neb. 906to demand that its officers regulate their behavior to protect
the bank’s reputation. This bank officer failed to do so, and
his conduct harmed the bank’s reputation. I would reverse
the judgment of the district court and remand the cause with
instructions to reverse the decision of the appeal tribunal and
reinstate the 14-week disqualification.
Funke, J., joins in this dissent.