How bad must off-duty social media behavior be in order for a public employer to justify discharging an employee for their posts? In true lawyer fashion, the answer is probably “it depends”. It depends on the position that the employee holds within the organization and the content of the postings on social media.
Since officers hold a special position of trust in society, police departments rightfully require that their conduct fosters that trust and models law-abiding, respectful behavior. That’s why the Chicago Police Department has moved to discharge a 25 year veteran officer for his off duty social media posts. There is no doubt that policing, especially in urban areas like Chicago, can be challenging and officers can develop jaded views of society, but when an employee takes to social media to disparage groups it can lead to trouble on the job.
The CPD officer facing discharge allegedly posted racist and insensitive remarks on Facebook, including a cartoon of a boy urinating on the word Allah, referring on Facebook to black children as “wild African kids” and displaying a bumper sticker on his vehicle depicting a car driving into a group of protesters with the words “all lives splatter,” to name a few. The officer has also been the subject of 57 citizen complaints of unfair or insensitive treatment.
CPD has a social media policy which includes a prohibition of statements, both on and off duty that vilifies a group based on race, religion, sexual orientation or other protected characteristics. The policy is designed to protect against activity which may interfere with an officer’s ability to discharge their duties in a fair and impartial manner and might diminish the reputation of the department in the community. The results of an investigation of this officer’s postings and actions found 62 separate incidents of social media and vehicle postings which violated the policy.
The officer claims that discharging him for his off-duty conduct and statements violates his First Amendment rights to free speech. As we know, this can be a tricky analysis of balancing an individual’s rights to speech and an employer’s rights to maintain order in its operation.
What CPD has done right is to issue a policy which prohibits social media activity which disparages or defames groups of citizens based on protected characteristics. The number of separate postings and statements, coupled with the large number of citizen complaints tends to show disruption of the department’s operation due to statements by the officer attacking groups based on those protected characteristics which diminishes or destroys the employee’s First Amendment protections.
Public employers should always conduct a two part analysis before disciplining an employee for off duty social media statements. A sound policy must be in place, coupled with actual evidence that the employee’s statements caused disruption or inefficiencies to the employer’s operations. While private employers do not face First Amendment challenges, in a union setting, the same analysis will show “just cause” to discipline.