Remember the employee of the government contractor that impulsively “flipped off” President Trump’s motorcade, which was caught on camera by a journalist who happened to be there covering the President, who then posted the picture on the internet without identifying the “flipper” because the picture did not reveal her face, but then the employee herself posted the same picture on her social media sites because she thought it was funny? Remember that? And remember how the employee was fired because of the picture (even though she disclosed the events to her employer right away) because the government contractor said that she violated their social media policy? And the media, along with many interested citizens, thought this was a travesty because the woman was just exercising her right of free speech? Well, this employee is back in the news because she filed suit against her former employer over this series of unfortunate events.
As we discussed when we first wrote about these events, as an employee of a government contractor, she enjoyed the protections of the first amendment of freedom of speech. Therefore any speech that addressed a topic of public concern would be protected. The only problem was that her “flip” was really an expression of her personal views of the President, and therefore not protected. Nevertheless, the employer based its discharge decision on her violating their social media policy, which stated as follows:
“Covered Social Media Activity that contains discriminatory, obscene malicious or threatening content, is knowingly false, create [sic] a hostile work environment, or similar inappropriate or unlawful conduct will not be tolerated and will be subject to discipline up to an [sic] including termination of employment.”
The company determined that her “flip” was obscene conduct. As readers might recall, while many might judge her conduct to at best be on the edge of obscene, the company looked ridiculous by advancing that argument since it had previously only reprimanded another employee (who was male) for posting a curse filled statement about a co-worker’s liberal beliefs. That was the company’s first shot in their own proverbial foot.
As readers can well imagine, it wasn’t long before the flipping employee got a host of job offers and she and the company seemingly settled their differences through a severance agreement. The second shot in the proverbial foot for the company is that the employee claims now that the company only paid her half of what it promised her under their agreement, and reports are that this is the only basis of her current suit.
Two lessons for employers come from this situation. One is to always enforce your policies uniformly. As a contractor for a decidedly Republican led government, it was probably easier to issue lighter discipline on the worker that was attacking government opposition, but it looked bad when the employee who made the less obscene statement received the greater punishment. The second lesson is to always pay out settlements in a timely manner. Once that dog is finally asleep, don’t intentionally kick it awake again by not completing your agreed upon obligations.