Prior to the advent of social media, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct. Those bygone times, however, have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce in an increasingly virtual world. The COVID-19 pandemic has dramatically accelerated this transition to a virtual workplace. In this installment of #No Filter, we explore sample cases involving public employers and their decisions to take disciplinary action following objectionable social media posts.
Carr v. Dep’t of Transportation, 230 A.3d 1075 (Pa. 2020).
Plaintiff was a newly hired Roadway Programs Technician within her 180-day probationary period for the Pennsylvania Department of Transportation. While off-duty and at home, she posted to a closed Facebook group titled “Creeps of Peeps” the following:
“Rant: can we acknowledge the horrible school bus drivers? I’m in PA almost on the NY border [sic] bear [sic] Erie and they are hella scary. Daily I get ran [sic] off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don’t give a flying [****] about those babies and I will gladly smash into a school bus[.]” Carr v. Dep’t of Transportation, 230 A.3d 1075, 1077 (Pa. 2020) (emphasis added)
Co-workers within the closed Facebook group reported the comments to the employer, which terminated her employment for “inappropriate behavior.” Id. at 1078. Because the Plaintiff worked for a public employer,  the two-part inquiry originally established by the United States Supreme Court “requires a determination of whether the speech involves a matter of public concern.” Id. at 1079. Speech implicates a “public concern” if its content or context addresses a matter of political, social, or other area of interest to the community. Id. If the speech encompasses a matter of “public concern,” the second inquiry examines “whether the speech has a potential to adversely affect the government employer’s operation.” Id.
The Pennsylvania Supreme Court found although the employee’s speech may have touched on a matter of “public concern,” it was “essentially a rant based on her personal observation of a particular bus driver rather than an explanation of safety concerns that she became aware of as a Department employee.” Id. at 1090. The high court went on to note that “[e]ven if [plaintiff] never intended to drive her vehicle into a school bus, [ ] her words alone could erode the public’s trust in her employer’s mission” and “few statements could be more contrary to the Department’s mission of providing safe roadways for the traveling public than [her] comment…” Id. at 1089. Based on the “limited public importance of [her] posts” as compared to “their detrimental effect on the Department,” the Pennsylvania Supreme Court found the speech unprotected. Id. at 1090.
Bennett v. Metro. Gov’t of Nashville & Davidson Cty., Tennessee, 977 F.3d 530 (6th Cir. 2020)
In another public employment case, the plaintiff was employed as a dispatcher for the Metropolitan Government of Nashville, Tennessee who was terminated for Facebook posts she made while off-duty. On election day November 8, 2016, after the election was called in favor of her preferred candidate Donald Trump, she posted to Facebook “[t]hank god we have more America loving rednecks. Red spread across America” before ending the post with a derogatory racial slur. Id. at 533. After being placed on administrative leave and a due process hearing, the employee was terminated.
In a ruling by the Sixth Circuit Court of Appeals, the decision noted the racially divisive slur “undermine[s] the mission of” the employer “used the slur in a public forum from a profile that implicated not only Metro Government but also the Metro Police Department.” Id. at 542. That term, more than others, invokes “the centuries of history that make the use of the term more than just ‘a single word.’ The use of the term ‘evok[es] a history of racial violence, brutality, and subordination.’” Id. at 543. As a result, the employer’s “interest in maintaining an effective workplace with employee harmony that serves the public efficiently outweighs Bennett’s interest in incidentally using racially offensive language in a Facebook comment.” Id. at 545.
Practical Advice for Employers
These cases illustrate how difficult and nuanced the process for terminating an employee for a social media post can be. Employers considering discipline for misconduct occurring on social media outside of work should ask themselves a few basic questions prior to taking action:
1. Do I have a copy of the tweet or post?
Social media is user-controlled content and can be easily deleted when an employee learns they are under investigation. Preserving this evidence prior to taking action is critical to any complete investigation.
2. Does the post relate to working conditions or wages?
The National Labor Relations Act prohibits employers from taking action against employees acting together to improve their wages, hours, and/or conditions of employment.
3. Would the post be considered harassment if said face to face?
Applying an employer’s harassment and discrimination policy to offensive conduct requires evaluating the content and context of the speech. Consistently evaluating offensive conduct and taking action to correct it, irrespective of the venue where the conduct occurred, will help ensure uniform application of the employer’s policies and help the defendant against subsequent litigation.
 The rules for regulating speech in the workplace differ depending on whether the employer is a public (i.e. governmental) or private entity. For additional information, see these helpful articles here, here, and here.
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