Thursday, November 6, 2014

Not all speech on social media is protected


I’ve spilled a ton of ink over the past few years warning employers about the risks and pitfalls that lurk in attempting to act against an employee for work-related comments on social media. Not all online speech, however, is protected, as two recent cases illustrate.

In Ames v. Ohio Department of Rehabilitation & Correction (Ohio Ct. App. 10/28/14), a parole office posted the following on her personal Facebook page:

I’ll gimp into work tomorrow. I guess I could just shoot them all ... lol!

Yo! Thanks neighbor. I’ll gimp into work tomorrow. I guess I could just shoot them all … ARE YOU KIDDING ME? ‘MEANING I CAN’T CHASE THEM!’ OH MY GOD! YOU PEOPLE REALLY DO NEED A LIFE! LIKE NO LAW ENFORCEMENT OFFICER ‘EVER’ MADE THAT TYPE OF COMMENT. YOU MAKE ME LAUGH OUT LOUD!

Troubled by these comments, the ODRC sent Ames for three different independent medical examination, and ultimately terminated her. The appellate court dismissed her disability discrimination claim, concluding that: 1) the mere fact that an employer sends an employee for an IME does not mean that the employer regarded the employee as disabled; and 2) regardless, “posting a vulgar, threatening statement toward a co-worker under her supervision” is a legitimate, non-discriminatory reason to terminate.

Richmond District Neighborhood Center (NLRB 10/28/14) [pdf] concerned the following Facebook exchange between two teen center employees:

Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like bein their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money…. They dont appreciate shit. Thats why this year all I wanna do is shit on my own. have parties all year and not get the office people involved….

hahaha! Fuck em. field trips all the time to wherever the fuck we want!

When a co-worker sent screenshots of the conversation (which included a student), the teen center rescinded its re-employment offers to the two employees. The NLRB had little trouble concluding that these posts were unprotected insubordination, not protected concerted activity:

Callaghan and Moore’s lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail. We are not presented here with brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation. The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.

From these two examples, we glean that, indeed, there exists a line between protected online speech and unprotected threats, harassment, or insubordination. The difficult task is figuring out where that line is, an issue that will continue to develop, and bears watching, as more employees take to the social-sphere to air workplace grievances.

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