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Policing Social Media Posts – PA Appellate Court Prohibits Reinstatement of Kutztown University Police Officer

May 28, 2024

On May 1, 2024, the Pennsylvania Commonwealth Court vacated an arbitration award involving the Pennsylvania State System of Higher Education Officers Association (“Association”) and a former University police officer who was fired due to offensive social media posts. In 2021, several anonymous University students (known as the “Activists”) submitted screenshots of the Police Officer’s social media posts, which contained offensive comments regarding Muslims, the LGBTQ community, and racial minorities, to a website and Instagram account that is monitored by the University. Following this, the University received complaints from students and faculty members, as well as a petition signed by several thousand individuals demanding the University remove the Police Officer from his position. In response, the University launched an investigation and, ultimately, terminated the Police Officer for his social media posts.

Following his termination, the Association filed a grievance claiming that the termination was without just cause and in violation of the collective bargaining agreement. The matter proceeded before an arbitrator, who sustained the grievance and ordered that the Police Officer be reinstated with full back pay, as well as future benefits and seniority lost due to the termination. The arbitrator’s decision was based on the fact the University lacked a social media policy that could have provided notice to the Police Officer that his social media posts were inappropriate and could result in discipline.

The Pennsylvania State System of Higher Education appealed the arbitrator’s decision to the Pennsylvania Commonwealth Court, claiming that the arbitrator’s award violated well-defined public policy. The public policy defense is a limited exception to the typically broad deference granted to arbitration awards in Pennsylvania.  In a split decision, the panel majority sided with the State System of Higher Education, finding that the arbitrator’s award violated the well-defined and dominant public policy against discrimination, which is grounded in federal and state law. The Court rejected the arbitrator’s reasoning regarding the University’s lack of social media policy, as the Police Officer was neither cited for nor terminated based on a specific violation of the University Police Department’s disciplinary policy. The Court further reasoned that regardless of whether the University maintains a social media policy, there still exists a dominant and well-defined public policy prohibiting discrimination, which is amplified in the realm of law enforcement. The Court held that because the Police Officer’s social media posts were clearly discriminatory, and lack of discipline would suggest tolerance of discrimination, which is in violation of public policy, the arbitrator’s award must be vacated.

In the lone dissenting opinion, Judge Wallace agreed with the majority’s decision that the University’s lack of a social media policy should not have prevented the Police Officer’s termination; however, she noted that Court was quick to replace the arbitrator’s judgment with its own. Judge Wallace further noted that she believes the award should have been vacated and remanded back to the arbitrator so that the Police Officer could receive a proper punishment.

The Court’s decision is another good example of the public policy exception to arbitrable deference. What does this mean for employers? The idea that courts are scrutinizing arbitration awards more thoroughly may provide employers facing terrible arbitration awards with another bite at the apple if the employer can articulate “well-defined public policy” that may be implicated.  If you have any questions about this decision or how a public policy challenge may help you, please contact a member of the McNees Labor & Employment Group.


Conner Porterfield

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