Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief. Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case. Here is another such victory.
The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect. In that role, she was charged with determining whether a child was safe in his or home. If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody. She testified in court about eight times a month.
In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.
Plaintiff, of course, had a Facebook page. In her profile, Plaintiff identified herself as a case worker for the Department of Human Services (DHS). Her Facebook profile did not include a disclaimer that the opinions were her own and not those of her employer. Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.
She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems. In another post, she proposed a set of “rules for society,” which included:
(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.
A copy of the posts were forwarded to the Director of HR at DHS. When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts. She was put on administrative leave while the matter was investigated.
As part of the investigation, the Director of HR spoke with the attorneys at the District Attorney’s office and Department of Justice that plaintiff worked with most often. The attorneys expressed concern that the Facebook posts would be subject to discovery and that they would have to be disclosed to defense attorneys in any case involving physical abuse. They also said that she would likely be questioned about the posts, which would be detrimental to the agencies’ ability to effectively prosecute these cases. In effect, they said, the credibility and neutrality required of a DHS case worker had been all but destroyed, rendering her virtually useless a witness for the prosecution. As a result, her employment was terminated.
She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech. The suit was dismissed on summary judgment. The court explained that, even assuming the speech was subject to the protections of the First Amendment (i.e., that it was on a topic of public concern), the employer’s interests outweighed the employee’s.
This case serves as a good reminder to public- and private-sector employers alike that, when presented with information about an employee’s Facebook or other social-networking posts, the best course of action is a calm and rational one. Investigate like you would with any other complaint. If the online conduct impairs the employee’s ability to perform the essential functions of the job or if it causes real disruption to the employer’s operations, discipline may be in order.
Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013).
Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).