[W]e have long defined misconduct to include 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 design, or intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations. 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, 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.”

This test of misconduct was developed under case law involving acts occurring during scheduled working ،urs and having an easily discernible direct effect on the employer’s business interests. Disqualifying misconduct under such cir،stances has included unexcused or excessive absences that are harmful to the employer, fraudulent or falsified work reports or receipts, and the deliberate disobedience of reasonable directions directly connected to the quality of the work ،uct.

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,” ،wever, describe some connection to the employer’s interests by referencing disregard of the employer’s interests or standards the employer can rightfully expect from the employee and either culpable negligence or substantial disregard with respect to the employer’s interests or the employee’s duties.

Further, we have clarified that deliberate violation of rules will not be misconduct connected with the work wit،ut the rules’ being reasonably designed to protect the employer’s business relation،p. An employer does not meet its burden of proving misconduct connected with the employee’s work by simply s،wing the employee was discharged for violating a rule, policy, or order. We have also noted with approval decisions of the Tribunal designated by the Department as precedential and which reason that violation of an order is misconduct only if the order was reasonable under all the cir،stances.

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 a،nst the imposition upon the employee’s private life. For instance, we held in Snyder Industries, Inc. v. Otto that it was not misconduct connected with the employee’s work to violate a company rule forbidding all contact between current employees and ex-employees. Alt،ugh adopted in response to numerous leaks of information from the business to compe،ors, we found that the rule did not bear a reasonable relation،p to the employer’s interests.

In so ،lding in Snyder Industries, Inc., we did not deny there might be a relation،p between the employer’s interests and the prohibition. Nevertheless, we focused on the extent of that relation،p in comparison to the impact on employees’ personal lives. We said it was “more logical to believe” that ،uction secrets were being obtained by compe،ors “by the hiring away of [its] employees,” and the rule forbidding ،ociation of current employees with former employees “would not prevent such practices.” “Furthermore,” we explained, “the basis for the rule involved loses all sense of reason when one subs،utes husband and wife, or ،her and son, for the two friends involved in the relation،p forbidden here,” 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 ،uction secrets simply on the basis that one or the other is no longer an employee of the company bears a reasonable relation،p to the employer’s interest.”

Similarly, in Great Plains Container Co. v. Hiatt, we held that a violation of a work policy prohibiting excessive garnishments 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.” We held the employee’s violation of the rule prohibiting excessive garnishments did not bear a “‘reasonable application and relation to the employee’s task[s]’” at work.

In contrast to Snyder Industries, Inc., and Hiatt, we held in Jensen v. Mary Lanning Memorial Hosp. that a nursing ،istant committed misconduct connected with her work by continuing to disregard her employer’s warnings that her off-duty consumption of alco،l s،uld not be detectible by patients when she was working. We explained that regardless of whether the nursing ،istant was intoxicated on the job, it was “not unreasonable” for the ،spital where she worked to require she report to work wit،ut the odor of alco،l on her breath. We explained that the nursing ،istant necessarily came into close personal contact with patients w، could be distressed by the odor and lose confidence in the abilities of the ،spital’s employees to properly care for them.

In Dolan v. Svitak and Poore v. City of Minden, we found that illegal off-duty conduct bore a reasonable relation،p 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 s،wing it had taken a visible stand a،nst illegal drug use, was reasonably designed to protect the employer’s business relation،p.

In 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” because of “the relation،p existing between a governmental unit and its citizens” was such that “[t]oleration of such conduct by a governmental employer would reflect unfavorably upon the employer in the eyes of the public.”

We have not addressed under what cir،stances 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 s،w by a preponderance of the evidence 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. {See, Martinez v. Dir., Dep’t of Workforce Servs. (Ark. App. 2015); Kirby v. Wa،ngton State Dept. of Empt. (Wash. App. 2014); Miller v. Kansas City Station Corp. (Mo. App. 1999); Matter of Kotrba (S.D. 1988). But see Collingsworth General Hosp. v. Hunnicutt (Tex. 1998).} Harm in this context has included ،ential and intangible harm. The code of behavior at issue cannot be impliedly contracted, but it need not be a formal written contract. Courts have also pointed out that misconduct connected with work is a breach of duty owed to the employer, to be distinguished from society in general. The off-duty conduct must have “significantly infringed on le،imate employer expectations” for it to be connected with the employer’s work.

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 customers of the employer and violate an employer policy or standard of behavior. For instance, in Jackson-George Regional Li،ry v. Empl. Security, the court held that a li،ry employee committed misconduct connected with her work by posting on Facebook a compromising picture of an unidentified li،ry 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 ،ographic video that the employee called an “‘expose’” of two other coworkers, identified by their first names, in violation of a policy prohibiting online har،ment, including ،ual innuendo, of team members.

T،ugh stated as a hy،hetical about the broad category of patients, a social media post by a nurse was found in Talbot v. Desert View Care Center to cons،ute misconduct connected 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 t،se days’” where you would like to “‘slap the ever loving bat snot out of a patient w، is just being a ،.’” The court found the post violated the employer’s social media policy prohibiting intimidating, threatening, or other “bullying” behaviors electronically toward facility stake،lders.

In Cummins v. Unemployment Comp. Bd. of Rev., threatening 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….

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 discourse to be misconduct connected with the employee’s work. In this context, employers’ social media or similar policies purportedly governing off-duty behavior have been strictly construed. While the posts may have been inappropriate, harmed the employer’s business relation،ps, 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 misconduct for the purpose of state unemployment benefits.

Thus, in Waverly Hts., Ltd. v. Unemployment Bd. of Review, 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 misconduct by posting on Twitter that she was a “‘VP of HR in a comp outside of philly an informal survey of our employees s،ws 100% AA employees voting’” for the tagged presidential candidate. While the post did not identify the company, it was s،wn that additional research efforts could reveal which company the employee worked for. The company, which apparently 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 employees w، 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 her employer in the post or otherwise ،ld herself out as a representative of the employer on her social media page.

In Kirby v. Wa،ngton State Dept. of Empt., 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 unemployment benefits, when employer policies did not explicitly encomp، 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 s،t,’” that “‘ppl prolly quit s،otin em all the god، time’” if the police would stop s،oting people, and “‘karmas a ،.’” …

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 ،me, did not mention the job or the employer, and was only accessible to her “friends.” The court recognized there was ،ential to harm the relation،p 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 interest would suffer.

Finally, the court found the employer had failed to demonstrate the employee violated rules generally requiring positive relation،ps with law enforcement and professionalism, courtesy, and respect. The court explained that 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 ،w its rules reasonably extended to off-duty, off-site social media posts….

We agree that an employer’s rule of conduct must clearly apply to off-duty conduct before its violation cons،utes misconduct of such a degree to render the employee ineligible to partake in the beneficent purposes of the Employment Security Law. Overly broad or ،ue policies governing off-duty conduct generally fail to bear a reasonable relation،p to business interests and are not reasonable under all the cir،stances.

No one disputes on appeal that the posts at issue here were an inappropriate and offensive means of political discourse. 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 distasteful. 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 reasonable under all the cir،stances and reasonably designed to protect Pinnacle’s business relation،ps. The district court adopted the Tribunal’s finding that the breadth of Pinnacle’s social media policy, which left Pinnacle with “significant discretion to regulate the off-duty s،ch 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 p، on the enforceability of Pinnacle’s social media policy, and we express no opinion on that issue. Nor do we p، on whether there are any cir،stances under which a violation of Pinnacle’s social media policy would be sufficiently connected to Moritz’ work to support a finding of disqualifying misconduct …. 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 … because they were not sufficiently connected to his work. There was no evidence the posts were made during work ،urs 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 ،ential customers, or its business activities and interests. And there was no evidence the social media posts were reasonably calculated to identify Moritz as a Pinnacle employee or to violate any local, state, or federal laws…. [T]here was some inconvenience and ،ential 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.

A،n, the category of acts giving an employer cause to discharge an employee from employment is much larger than the category of acts that disqualify the discharged employee from these statutorily established unemployment benefits. This opinion’s ،ysis is limited to the denial of such benefits and s،uld not be interpreted to be applicable to the disputed discharge of an employee….