Monday, April 9, 2018

Cyclist fired for flipping off Presidential motorcade sues former employer

You may recall Juli Briskman, the biker that flipped the finger to Trump’s passing motorcade, and lost her job after a photo she posted went viral.

Ms. Briskman is not taking her termination lying down. In what appears to be a deep-funded and well-orchestrated campaign, she has filed suit in Virginia state court against her ex-employer.

Indeed, most employment plaintiffs don’t launch a PR campaign in advance of their lawsuits:

… or publish op-eds in the Washington Post explaining their story on the same day they file their lawsuit.

Briskman’s claim is an interesting one: “Forcing Plaintiff to resign out of fear of unlawful retaliation by the government for constitutionally protected speech violates Virginia public policy. Both the United States Constitution and the Virginia Constitution express strong public policies that Virginians may speak on topics of public interest without fear of suffering the effects of governmental retaliation for political speech.”

Thus, she claims that her ex-employer, a federal contractor, jeopardized her First Amendment free-speech rights by firing her out of fear that that federal government would retaliate against it by limiting or terminating its contracts.

Many states have similar claims under their common laws. In Ohio, we call it Wrongful Discharge in Violation of Public Policy. It prohibits employers from dismissing employees under circumstances that would jeopardize a clear public policy manifested in a state or federal constitution, statute, or administrative regulation, or in the common law.

This case is going to be fascinating to watch. As I’ve discussed before, private-sector employees (like Ms. Briskman) generally don’t have free speech rights at work. She, however, is attempting the bootstrap her employer’s alleged (and yet to be proven) concern over the status of its federal contracts into a First Amendment retaliation claim.

So, does an employee of a federal contractor have a claim if fired over a concern by the employer that the employee's speech could jeopardize the employer's federal contracts?

I am skeptical that this claim has legal merit. But stay tuned. I have a feeling this case is going to have a long and interesting journey.