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Does the Cyclist Who Flipped Off Trump's Motorcade, and Got Fired, Have a Case?

6 November 2017
The National Law Journal

A Virginia-based government contractor fired a marketing executive after a photo of her flipping off a Donald Trump motorcade went viral on social media, raising questions about corporate social media policies and the rights of employees to express views off-duty that instantly can be seen by millions.

Juli Briskman was fired from the government contracting firm Akima LLC last month, according to media reports, and is now considering taking legal action. The photo, shared widely on social media, showed Briskman, on a bike, lifting a middle finger to the presidential motorcade that was passing by her in Northern Virginia. A photographer that accompanied the motorcade caught the image, which Briskman later posted on her Twitter account.

Citing Akima’s social media policy, the company fired Briskman after she let them know she was the person in the image, The Washington Post reported Monday. The company pointed to its employment rule that says employee activity considered “discriminatory, obscene, malicious or threatening content” can lead to reprimand, up to termination. The National Law Journal’s calls to Akima were not returned Monday.

The company’s termination of Briskman could implicate discrimination and free speech laws under federal and local statutes, but a lack of formal court and administrative guidance in this area gives companies wide latitude to reprimand employees for speech, employment attorneys said Monday in interviews. Briskman’s story didn’t happen in a vacuum—social media policies have been evolving as technology proliferates and people spend more time online and away from the office.

Aaron Goldstein, a labor and employment partner in Dorsey & Whitney’s Seattle office, said there is a myth free speech is universally protected in the workplace.

“But (and this being a legal issue, there is always a but), there are numerous other laws that can come into play when employers fire employee for expressing strong opinions on political or social issues,” Goldstein said. “Controversial statements in the workplace about social and political issues may not be protected by the First Amendment, but there are many other legal traps for unwary employers.”

Similar employment law questions were raised this summer when a Google engineer released a manifesto suggesting women were not biologically suited for the technology industry. Google fired the employee, who now has a pending complaint at the National Labor Relations Board. Other current events also raised questions about the scope of protections for employee speech—most visibly seen in the NFL player protests during the national anthem. A union has turned to the NLRB to challenge threats of punishment against members of the Dallas Cowboys who kneel during the anthem.

The law on social media policies is evolving, said Rachel Steely, co-chair of the labor employment practice at Gardere in Houston. “Social media policies have been a big deal in the last few years. These social media policies are important because there is so much exposure. There are definitely pitfalls that employers can fall into.”

Briskman reached out to the American Civil Liberties Union regarding her circumstances. In general, the First Amendment limits the government’s ability to punish people from speaking but it says nothing about what a private company can or can’t do, said Arthur Spitzer, legal director at the American Civil Liberties Union of the District of Columbia. He said government pressure on a private company to fire an employee would bring in the First Amendment.

Corporate social media policies and employment law are not operating in the same space, said Arlus Stephens, an employment attorney in Washington at Murphy Anderson. “These policies, once implemented, often come back to bite employers,” he said. “Just as the technology is new, the laws are undeveloped and trailing way behind. The regulation hasn’t caught up to where people are.”

‘Can They Do These Things on Personal Time?’

From an employer’s perspective, activity on social media, even off-duty, could result in harm to its reputation. Companies have the right to terminate an employee for unlawful action but lawful actions are more difficult questions.

Employers should take heed they are applying policies in an equitable way to protected classes, including those based on gender, race, national origin and religion, said Saundra Riley, an employment attorney at Fenwick & West in California.

“When you get to the concept of off-duty conduct and something is not unlawful, there is a cross-section of interesting scenarios,” Riley said. “It’s key for an employer to have a consistent approach to enforcing its policies, no matter what the particular policy is.”

Briskman, whose job required monitoring other employees’ social media presence, said a male executive made a public comment, sparked from a discussion about Black Lives Matter, that did not lead to his termination, according to The Washington Post.

This wrinkle could raise questions about any inequitable treatment. As a woman, Briskman is in a protected class under Title VII of the Civil Rights Act of 1964.

Any speech online that can be construed as conditions of employment is protected as concerted activity, an area the National Labor Relation Board has been called on to address in recent years. States also have laws that are more wide-reaching than federal law.

Monitoring employees’ speech outside the workplace can be frustrating for companies, said Lori Zahalka, a Mayer Brown partner in Chicago who works with clients on issues including social media use inside and outside the office.

“We frequently see employers frustrated when they see things on social media their employees are doing that aren’t associated with the work for the employer,” Zahalka said. “From the employer’s perspective, they ask, ‘What do I do? We don’t care for the company to be associated with this but can they do these things on personal time?’”

Zahalka said social media cases tend to be very fact-specific. States also may have different laws for government what an employee can or cannot do. She said there is a dearth of legal rulings in this area.

“Every situation presents a different scenario or behavior that employers might not care to be associated with,” she said. “They must be careful to treat employees equally and be consistent in disciplinary actions.”

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Reprinted with permission from the November 6, 2017 edition of The National Law Journal © 2017 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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