Social Media, Free Speech, Employee and Employer Rights: that day a woman got fired for flipping off the President

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Social Media, Free Speech, Employee and Employer Rights: that day a woman got fired for flipping off the President

Can you be fired for something you  post to social media?

Yes. The answer is yes.

Recently, a woman from Virginia was fired from her marketing job after her employer became aware of an image circulating of her flipping off President Trumps motorcade. This story has become polarizing; people are split on whether her termination was legal or not; and if it was legal, did the company really have to go as far as terminating employment?

The #Her2020 Facts (via CNN, HuffPost, Fortune)

  • Juli Briskman flipped off President Trumps motorcade as they transported him from his golf course to the White House.
  • Her employer was a government contractor Akima LLC (marketing company.)
  • Someone snapped a picture of her flipping them off; it was widely circulated online.
  • She gave the HR department at her company a heads up so they knew about it; the next day her boss called her into a meeting and fired her.
  • She made the famous phone a profile picture on Facebook; the company claimed that she violated their social media policy because employee activity considered “discriminatory, obscene, malicious or threatening” could lead to reprimand or termination.
  • She wasn’t on the clock.
  • Nowhere on her private social media pages is her employer mentioned
  • Akima is a government contractor and the photo could hurt their business.
  • Virginia is an employment-at-will state. This means that employers can fire employees at anytime with any reason.
  • Briskman’s former colleague (a senior director) kept his job after calling someone a ‘f**king libtard a**hole’ on his Facebook page with regard to an employee discussion surrounding Black Lives Matter. He also had a cover photo featuring Akima branded imagery (connecting him to the company.)

Here are some examples of ‘Just Cause’ for termination: (Source: Macleod Law Firm)

  • Where the comment has a direct impact on the employer’s business such as harming the employer’s reputation and legitimate economic interests;
  • Where the comment is disparaging or insolent against the employer or other co-workers; or
  • Where the comment is in violation of a workplace policy that the employee was aware of such as a confidentiality agreement.
  • Where the comment indicates a violation of the criminal code.

The Angles:

There are people who believe that Briskman’s employer had no business involving itself in something that happened ‘after hours’ or did not directly involve them. However, there are others who believe that the company made the right choice because Briskman represented the company whether she was on or off the clock (and there may be consequences for the company.)

Recently here in Calgary, an employee of the Calgary Flames shared a colourful tweet about the recent Mayoral Elections (which he deleted… but not before Meghan Grant took a screenshot!) There was backlash online and offline in the form of media reports and commentary criticizing the employee and the Flames organization (CTV Calgary, CBC, Metro Sportsbet, National Post , Globe and Mail) However, the Flames handled this situation entirely different from the one in the states. {Though it should be noted that there is a history between the Mayor, the Flames and the NHL which may have played a considerable role in the organizations indifference to the tweet shared by their employee.}

 

 

Issues, questions and concerns that arose with Juli Briskman’s termination:

  • Inconsistent practices (The company previously reprimanded another employee for a similar act, while terminating her employment in this case.)
  • Conduct Unbecoming vs. Freedom of Expression (Can a private employer write anything they want into their own policies?)
  • Government vs. private company (Does the public adequately understand the differences between the two and restrictions applied to each?)
  • Hierarchy within the company (Do senior employees get special treatment? Are they excluded from certain policies?)
  • On the Clock or Off the Clock (Is it reasonable to expect employees to be representatives 24/7?)
  • Monitoring. (Should employers check social media profiles?)
  • Separation between personal and professional on social media. Excellent in theory. Not realistic in practice. Some recommended setting up separate (private) profiles. There are couple of reasons that this could present a problem. (1) It is against most social site user agreements and (2) no one is anonymous. Oh – plus screenshots

What about Freedom of Speech and Freedom of Expression?

In Canada, freedom of speech is protected as a “fundamental freedom” through Section 2 of the Canadian Charter of Rights and Freedoms and in the United States, it is protected under the First Amendment to the United States Constitution.

It’s important to note that the right of free speech only prevents government restriction on speech, not restrictions imposed by private individuals and businesses (unless acting on behalf of the government.) Consider these other examples of restriction:  Criminal Code and Human Rights provisions which limit hate speech, municipal by-laws regulating signage or where protests may take place, civil defamation (libel) actions… etc. (ccla.org)

Most employers don’t track every movement of their employees; nor do they want to. However, from time-to-time a screenshot may come across their desk and in an effort to protect the reputation of their company they may need to take action. On the flip-side, most Employees don’t set out to embarrass or harm the reputation of their respective employers, but it can happen.

So the question becomes: how can employers and employees protect themselves?

Social Media Guideline + Social Media Training

First and foremost: do not infringe on legally protected rights. Secondly: choose battles wisely. (e.g.: just because you don’t like the selfie an employee or colleague chose for their Facebook profile picture doesn’t necessarily justify their being reprimanded or terminated.) Work with appropriate departments to set up your social media guidelines/policy (e.g.: IT, legal, human resources, marketing & communications etc.) And keep in mind the following while developing a guideline or policy:

  • Employees have the right to use Social Media for personal communication, as well as self-expression
  • Employees have the right to digital dignity. Meaning that no employee should have to worry about being bullied or harassed by colleagues or coworkers (including management.)
  • Employees are responsible for what they write, post or share online.
  • Employees must protect confidential company information.
  • Employees must remember that lines are blurred between personal & professional.
  • Employees should never assume privacy online.
  • Employees must be aware of and understand disciplinary actions. (e.g.: social media posts can get them fired

How can we avoid these uncomfortable situations as an employee? Or as an Employer? 

  • Start a dialogue surrounding company expectations online and offline.
  • All organizations should have a policy/guideline.
  • Talk about social media; talk about implications for the business (good and bad.)
  • Raise awareness about the business and brand online.
  • Create and host social media education sessions.
  • Make sure to consistently reinforce guidelines.
  • Think, before you think, before you post.

As social media continues to evolve, employers need to be proactive about how to integrate discussion and policy into the workplace. If you need help setting up your social media policy or training for employees, please get in touch!

Social Media, Freedom of Speech & Employment

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[VIDEO: Calgary Lawyer weighs in.]

Do you need help getting started with Social Media and Digital Marketing? Get in touch! 🙂

Kat Macaulay, BA ADdPR BnC
Kat Macaulay, BA ADdPR BnC
Kat Macaulay is a Marketing Strategist, Writer + Speaker known for her no-nonsense approach to pretty much everything. Using data insights, she helps organizations market more effectively to get results that matter. She's also a high-scoring instructor at Mount Royal University, where she teaches Social Media Analytics and Google Analytics + Marketing Measurement. She holds certifications from Google, as well as Facebook and is currently working toward a specialization in Marketing Analytics and a certificate in Data Science from IBM. When she’s not busy juggling kids, volunteering + work, she’s busy planning her retirement to Cape Breton.