Court OKs Firing of Public Employee Who Criticized Boss on Facebook

By Eric B. Meyer

You know all that stuff you read on the Internet about employees who can badmouth their boss on the Internet, all in the name of free speech, and not get fired for it?

Yeah, about that.

Here’s a recent opinion from the Fifth U.S. Circuit Court of Appeals in New Orleans about a 25-year police sergeant, a public employee, whose First Amendment freedom of speech rights were not violated when she was fired for posting Facebook comments, which were critical of her boss.

Limits to public employee free speech rights

While public employees have certain free-speech rights, on Facebook or otherwise, an employee’s First Amendment protections are only triggered when she is speaking as a citizen on a matter of public concern.

While the appellate court agreed with the plaintiff that her Facebook speech was in her capacity as a private citizen (as opposed to in the ordinary scope of her duties as a police officer), it concluded that her speech was not on a matter of public concern.

Instead, it viewed her speech as that of someone who is pissed at her boss.

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Think it’s hard for an employee to establish a First Amendment violation in the public sector? Remember, my private-sector company readers, there is no such thing as free speech in the private sector. If a single employee blasts the boss on Facebook, that employee can be held accountable for his or her actions. (Unless, of course, the speech constitutes protected concerted activity, which generally involves more than one employee discussing workplace conditions).

More constructive ways to deal with work issues

But, here’s a tip to help avoid this mess altogether: Remind your employees that, while online speech is one way to discuss work problems, there are more constructive ways to get problems solved.

That is, encourage them to address these problems directly with a supervisor, HR, or other appropriate decision maker.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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22 Comments on “Court OKs Firing of Public Employee Who Criticized Boss on Facebook

  1. The boss also has free speech rights and he said , you’re fired !
    Anyone who thinks they can diss their boss without repercussions is a idiot.
    If you don’t like your job then go find another one !

    1. “Freedom of Speech” doesn’t even really enter into this issue. The first amendment fight to freedom of speech relates to government persecution as a result of poliical speech. Since that time, the Supreme Court has expanded it to include other area, such as porn and other areas, but the 1st Amendment was never meant to protect one from social or natural consequences for that speech, including pissing off the boss with it.

    1. I don’t even friend people from work on my facebook, nor do I list my employer for that very reason. Even what I consider to be innocuous statements on facebook can be misconstrued and related to my employer in a bad light.

  2. So many people think free speech gives them protection from any consequences of their words. Free speech means the government can’t punish you for the things you say or believe (except threats against others, etc.). It doesn’t mean that other people have to sit there and take it. People have every right to say awful things about their employer and their employer has every right to fire them for it.

    1. Mostly teahadists and other right wing extremists with a negligible understanding of law and the constitution.

      1. I find the opposite to be true. It is not one side or the other that doesn’t understand free speech. If something offends a person they are all about it not being covered under free speech but if they agree, it should be protected. There are just as many brain dead liberals and progressives with no understanding of the constitution as there are conservatives.

      2. Better grasp than you left winger freedom haters, why do you try to pick and choose the rights you are willing to allow us to exercise? with rights come responcibilites you want license

      1. You thinking this one?

        I do not agree with what you have to say, but I’ll defend to the death your right to say it.

        1. Yes, it is unfortunate that people have not matured and act with emotion instead of logic to dismiss what they don’t like instead of forcing some ill will or consequence.

  3. Well, based on my limited experience over the past 50 years, speaking to HR or a supervisor about a sensitive but desperately pertinent work-related issue can quickly turn out to be a toxic move that one might regret rather quickly.

  4. Free speech means that the Government can’t throw you in jail for what you say. That does not mean that you can say anything without consequences. There is no reason someone should expect to continue employment with someone they insult.

  5. Tell your wife she’s a fat pig and see if the judge allows it in divorce court. Say the same to your boss and you won’t even get to stand on the unemployment line. Say it to a woman on the street and you’d better hope you have good health insurance.

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