Thursday, November 16, 2017

When the “Bird” May be an Employee’s Final Word

To say that our current political climate is surreal is an understatement similar to Houston, we have a problem and the weirdness continues on unabated.  In a new and comical twist, a woman in Virginia has been fired from her job with a government contractor for giving President Trump’s motorcade the finger.

This case is interesting from an employment law standpoint for a variety of reasons.  Apparently the employee in question worked for a private company, but the company is a government contractor.  She was riding her bicycle in Virginia when Trump’s motorcade passed by her as he was leaving his golf club.  She said that, at the time, all she could think was that the DACA program was ending and immigrant children (“Dreamers”) were being kicked out of the country, ads for Obamacare were being pulled by the Trump administration impeding people’s right to sign up for healthcare, Puerto Rico is in the dark and our president is playing golf…again.  So she decided to exercise her right to freedom of speech and give Trump the finger.

The first issue in this case is a First Amendment issue.  Since the employer is a government contractor, employees enjoy free speech rights that most private employees do not.  In 1996, the United States Supreme Court held, in two separate decisions, one of which was from Illinois, that independent government contractors have a First Amendment right to speak out on matters of public concern without fear of reprisal.  But in this case, the gesture was not the problem.  The problem was that a photographer snapped a picture of the gesture showing a woman on a bicycle from behind.  The photographer was a White House photographer, the photo went viral and news outlets picked it up.  The employee, proud of her actions, saw the photo and put it on her social media accounts on Twitter and Facebook as her profile picture.  “Houston, we have a problem...”

The employee realized that this could be an issue and the Monday after all of this happened, she told the HR department what was going on.  On Tuesday, much like Apollo 13, the employee was rolled out to the launch pad and sent into the deep dark void – not space in this case, but unemployment.  The employer told the employee that her gesture violated its social media policy in that it was lewd and obscene and the policy specifically prohibits lewd and obscene material on a company employees’ social media accounts.  At first blush, this termination appears to be okay.  The employer has a policy.  The violation of policy in this case has nothing to do with protected speech.  It has to do with lewd gestures and obscenity.  So the reason for terminating the employee is, on its face neutral.  But this hilarious story cannot end here, and I don’t think it will.

When discussing her story with the media, the employee in question related that a male employee kept his job after posting on his Facebook account that someone was, “A f***ing Libtard a**hole.”  The company allowed the employee to remove the post, and he was warned about the company’s social media policy.  Now, the company has treated a female employee much more harshly than a male employee after the two engaged in very similar, if not identical misconduct.  This raises the issue of gender discrimination and the company might have a problem with that.  It will have to distinguish between the two employees on some basis other than gender and that may be tough.

So the moral of this story is twofold.  First, you should have a well written social media policy that protects your company/agency’s image by prohibiting specific employee conduct which may be damaging to the organization, not because of its content, but because it is lewd or obscene in nature.  That will cover all kinds of ridiculous behavior and if you need help with such a policy, an Ancel Glink employment attorney can help you.  The second issue presented in this case involves the age old requirement that you must treat employees fairly.  You can avoid a myriad of employment claims by treating all of your employees the same regardless of race, gender, religion etc.  In this case, the employer may ultimately end up paying a price for its decision because it failed to treat two similarly situated employees the same way.

As always, please do not hesitate to contact us with any questions or concerns.