Kirby v. Employment Security Department
342 P.3d 1151
Wash. Ct. App.2014Background
- Black, a full-time security officer for PSSP, was discharged in Feb 2012 for a Facebook post.
- The post was made at home, off duty, and targeted personal opinions about police, not PSSP or TPU.
- Her Facebook page was private to about 100 friends; the post was not publicly viewable.
- One TPU employee friend saw the post and reported it; PSSP discharged Black after confrontation.
- PSSP had no specific social media policy at the time and gave limited or general instructions regarding online communications.
- Black received unemployment benefits; the Department found no misconduct; PSSP appealed through the Commissioner and superior court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Black's post was work-connected misconduct | Black: post lacked nexus to work and was private/off-duty. | PSSP: post harmed employer interests and thus was work-connected under Nelson. | Not work-connected; no nexus or contracted code breached. |
| Whether Black committed statutory misconduct | Black: lack of work connection defeats misconduct claim. | PSSP: post violated professional standards and company policies. | No misconduct under RCW 50.04.294 subsections argued; no substantial disregard or rule violation shown. |
Key Cases Cited
- Nelson v. Department of Employment Security, 98 Wn.2d 375 (Wash. 1982) (three-part test for work-connected misconduct)
- Griffth v. Employment Security Department, 163 Wn. App. 1, 259 P.3d 1111 (Wash. Ct. App. 2011) (analysis of work-connected misconduct under Nelson)
- Hamel v. Employment Security Department, 93 Wn. App. 140, 966 P.2d 1282 (Wash. Ct. App. 1998) (case interpreting misconduct standards)
- Smith v. Employment Security Department, 155 Wn. App. 24, 226 P.3d 263 (Wash. Ct. App. 2010) (conduct and policies in misconduct analysis)
- Tapper v. Employment Security Department, 122 Wn.2d 397, 858 P.2d 494 (Wash. 1993) (framework for agency review of misconduct)
- Baxter v. Jones, 34 Wn. App. 1, 658 P.2d 1274 (Wash. Ct. App. 1983) (cross-examination scope and evidentiary rulings context)
- Verizon Northwest, Inc. v. Employment Security Department, 164 Wn.2d 909, 194 P.3d 255 (Wash. 2008) (administrative review standards and scope)