You’re Fired! Is Flipping Off the Presidential Motorcade Grounds for Termination?

twitter bird singing (2)_3Juli Briskman, a Marketing Analyst for Akima LLC, was forced to resign from her position in October 2017 following her flipping off a Trump Motorcade. Ms. Briskman thought she was legally exercising her civil disobedience, but when the picture when viral, the situation became much more complicated.

Upon seeing her picture appear in major news outlets and in the monologues of the late night comedy hosts, she told her HR representative and her immediate supervisor. They were not laughing. Akima, a government contractor based in Virginia, feared Ms. Briskman’s association with them could harm their government dealings.

In her Complaint, filed with the Circuit Court for Fairfax County in Virginia on April 4, 2018, Ms. Briskman states that upon her termination, she was informed that, “the photograph could link her to Defendant and Defendant, as a government contractor, feared retaliation by the President or his administration.” The Vice President of Akima, Joe Boeckx also told Ms. Briskman the picture was like a “social media tattoo” that jeopardized the business of Akima.

Ms. Briskman was promised four weeks’ severance pay in exchange for her resignation. In her complaint, she alleges that she signed the agreement in the presence of HR representative, Jessica Hoke. However, her complaint states that she was only paid for two weeks, not the full four. She is now suing Akima for wrongful termination and breach of contract. She is requesting the unpaid severance, totaling $2,692.30, as well as attorney’s fees and costs, and prejudgment interest at the statutory rate.

This case is interesting for a multitude of reasons. The first of which being that it illustrates the power that social media holds. In the past, Ms. Briskman’s act of retaliation would have probably gone unnoticed. Now, the omnipresence of cameras that can take and share pictures almost instantly can cause someone like Ms. Briskman a lot of harm. Ms. Briskman, who was otherwise unidentified, can now be associated with the picture via the power of social media. It can be shared on a multitude of platforms and it will live on the internet interminably.

Another question raised is whether Akima even had the right to terminate Ms. Briskman’s employment. Virginia is an employment-at-will state meaning her employer had a right to terminate her at any time, so long as they did not terminate her for legally protected reasons.

Ms. Briskman’s complaint notes that Akima told her that by making the picture her cover photo on Twitter and Facebook she was in violation of their social media policy. It says:

“Defendant’s social media policy defines ‘Covered Social Media Activity’ as ‘social media activity that … otherwise impacts the Company’s business interests, or that of its parent, subsidiary, affiliated companies, contractors, customers, or competitors… .’”

Furthermore, as a government contractor, Akima feared governmental retaliation. Ms. Briskman feels that her termination, for this reason, is a violation of her First Amendment rights.

“Plaintiff chose in her private time and in her capacity as a private citizen to express her disapproval of President Trump by extending her middle finger. Although many will disagree with Plaintiff’s message and her means of expressing it, there can be no doubt that such speech is at the very core of the First Amendment and the Virginia Constitution.”

Ms. Briskman’s case is one to watch. It touches upon social media ethics, political scandal, and first amendment rights. It offers good lessons for employers and employees alike. Employers should make sure that when they terminate someone, it is for a lawful reason. They should also make sure that when they offer a severance agreement, they need to follow through on it. And employees should be cognizant that in this era of social media, someone is always watching.