What Now? Public Employer Obligations After Janus

Last week, the U.S. Supreme Court issued its landmark decision in Janus vs. AFSCME.  The opinion prohibits public employers from collecting fair share fees from employees who have refused to join a union. In the aftermath of Janus, public employers need to be taking immediate steps to stop any such deductions.  They also need to prepare for current union members who may seek to revoke any authorization that they had previously provided. Continue reading

Supreme Court to Hear Arguments on Fair Share Fees

by William W. Bowser

On Monday, February 26th, the U.S. Supreme Court will hear oral arguments inSupreme Court Janus v. AFSCME, Council 31, a case that could have a substantial impact on Delaware’s public-sector employers and employees. The Court is being asked to decide whether a public-sector employee who refuses to join a union can be required to pay so-called fair share fees to the union.

Continue reading

Facebook Threats Constitute Legitimate Grounds for Termination

Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech.  Today’s post also is about threats made via Facebook but in the context of the workplace.  The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip tomorrow to Ohio. social media letterpress_3

In Ames v. Ohio Department of Rehabilitation & Correction, an employee, a Senior Parole Officer, was sent for an independent medical exam after she posted a Facebook comment that her employer believed to be a threat.  The comment was in reference to shooting parolees.  The employee claimed that the comment was a joke.  The psychologist who conducted the exam cleared her to return to work, finding no evidence of depression, anxiety, or mood disturbance. Continue reading

Issue of Threats via Facebook Heads to the Supreme Court

The intersection of Facebook use and Free Speech is complicated.  Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States. text message speech bubble or twitter keyboard_3

The basic legal principle at issue is what constitutes a “true threat.”  It is a crime to use the phone or Internet to make a “threat to injure” another person.  And “true threats” are not protected as speech under the First Amendment.  So, “true threats” to injure another made via Facebook can be punishable as crimes.  Otherwise, the speech would be protected by the constitution and could not be considered criminal.

But what’s a “true threat?”  Is that question to be answered by the “reasonable person” who would be subject to the threat?  Or does the speaker have to have intended his words as a threat to constitute a criminal act?

In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others).  At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics.  The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.”  So now the Supreme Court will decide what the “true test” for “true threats” should be.

The legal issue may appear easier than it is.  The facts of the case may make the speech and speaker less sympathetic.  For example, his Facebook comments included the following about his wife, after she left with their two children:

If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.

He later posted, “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”  And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.”  He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.

Calling Your Students “Hoes” Can (And Should) Get You Fired

During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval. Continue reading

Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First!

The plaintiff is a Michigan lawyer.  She was placed on the assignment list of the County Probate Court and, as a result, received several case assignments.  She made a comment on Facebook about what she believed to be inefficiency at the Clerk’s Office at the Court in a particular case she was handling. She tagged two people in the post, mistakenly identifying them as employees at the Clerk’s Office. how_to_permanently_delete_or_deactivate_facebook_account_thumb

One of the two employees brought the post to the attention of the Court administrator.  The administrator never saw the actual post.  Two days later, the Court administrator notified the plaintiff by letter that she had been removed from the assignment list because of her comment on Facebook.

The plaintiff attempted to get back on the list multiple times but was unsuccessful and filed suit.  The suit alleges several constitutional claims, all but one of which were dismissed by the court.  The claim that survived is a claim for unlawful retaliation in violation of the First Amendment-i.e., a free-speech claim.

The court declined to dismiss the free-speech claim for several reasons.  First, it held that the plaintiff was speaking as a private citizen-not as an employee-when she made the post.  I tend not to agree but, well, we can’t all be right all of the time.

Second, the court held that she was speaking on a matter of public concern.  This finding was based, in large part, on the fact that no one could produce a copy of the actual post and, therefore, the court was left to decide the nature of the speech without ever having seen the speech.  Yikes.

Why, you ask, did no one produce the post?  According to the opinion, because the plaintiff deleted it.  Hmmm.  That doesn’t seem like exactly the right outcome, does it?  Because the plaintiff destroyed evidence, she gets the benefit of the doubt?

Maybe not.  But it does teach an important lesson to employers.  If you are going to discipline or terminate an employee due to something the employee posted on Facebook-get and keep a copy of the actual post if at all possible. Taking someone’s word for what the post says doesn’t mean that the termination is unlawful but it does likely mean that you’re going to have to work a lot harder to prove your case.

Butler v. Edwards-Brown, No. 13-13738, 2014 U.s. Dist. LEXIS 62032 (E.D. Mich. May 5, 2014).

Demoted for Posting Picture of Confederate Flag on Facebook Page

Public-sector employees have First Amendment rights.  But those rights are not without limits.  Employers, too, have rights-in particular, the right to operate an effective and efficient workplace.  Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.

And how do all of these rights play out in the context of social media?  Usually in the employer’s favor.  As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages.

The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems.  Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”

confederate flag_3

His Facebook profile and posts were accessible only to his Facebook friends. His profile did not indicate that he was employed by the Police Department or even that he was a police officer. And he took the post down within an hour after posting it.

But that hour was long enough for one of his “friends” to send a screenshot of the post to the local TV station. A story ran that evening on the local news about the post and the plaintiff’s position as Deputy Chief.

The Police Department received anonymous complaints about Plaintiff, prompting an investigation. Following he investigation, the plaintiff was demoted in rank and duties and his pay was cut. The plaintiff sued the Police Department, alleging First Amendment retaliation.

The court upheld the demotion, finding no unlawful imposition by the employer on the plaintiff’s right to free speech.  The basis for the court’s opinion was the potential disruption and/or actual disruption caused by the plaintiff’s posts.  In most circuits, including the 11th Circuit, potential disruption can be sufficient justification for an employer’s interference with an employee’s right to free speech.  Here, the court explained, there was not only potential for disruption caused by the plaintiff’s post but there was actual disruption, as well, as evidenced by the complaints the Department received.

Are these consequences harsh?  Most definitely.  Remember, the post was not publicly accessible and was up only for an hour.  But that doesn’t mean that the consequences were unlawful.

Duke v. Hamil, No. 1:13-cv-01663-RWS, 2014 U.S. Dist. LEXIS 13388 (N.D Ga. Feb. 4, 2014).

Facebook Posts by Police Officer Not Protected by the 1st Amendment

Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).

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And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

Another Facebook Firing Is Upheld

Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief.  Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case.  Here is another such victory.

The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect.  In that role, she was charged with determining whether a child was safe in his or home.  If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody.  She testified in court about eight times a month.

In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.

Plaintiff, of course, had a Facebook page.  In her profile, Plaintiff identified herself as a case worker for the Department of Human Services (DHS).  Her Facebook profile did not include a disclaimer that the opinions were her own and not those of her employer.  Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.

She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems.  In another post, she proposed a set of “rules for society,” which included:

(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.

A copy of the posts were forwarded to the Director of HR at DHS.  When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts.  She was put on administrative leave while the matter was investigated.

As part of the investigation, the Director of HR spoke with the attorneys at the District Attorney’s office and Department of Justice that plaintiff worked with most often.  The attorneys expressed concern that the Facebook posts would be subject to discovery and that they would have to be disclosed to defense attorneys in any case involving physical abuse.  They also said that she would likely be questioned about the posts, which would be detrimental to the agencies’ ability to effectively prosecute these cases.  In effect, they said, the credibility and neutrality required of a DHS case worker had been all but destroyed, rendering her virtually useless a witness for the prosecution.  As a result, her employment was terminated.

She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech.  The suit was dismissed on summary judgment.  The court explained that, even assuming the speech was subject to the protections of the First Amendment (i.e., that it was on a topic of public concern), the employer’s interests outweighed the employee’s.

This case serves as a good reminder to public- and private-sector employers alike that, when presented with information about an employee’s Facebook or other social-networking posts, the best course of action is a calm and rational one.  Investigate like you would with any other complaint.  If the online conduct impairs the employee’s ability to perform the essential functions of the job or if it causes real disruption to the employer’s operations, discipline may be in order.

Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013).

See also

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).

Facebook Post Leads to Police Complaint, Leads to Termination, Leads to Lawsuit

Employee posts “unpleasant” comment on Facebook.  The subject of that comment complains to employee’s employer.  Employer terminates employee.  Employee sues the complaining party-not the employer.  Interesting, right?  Here’s the case.

The plaintiff alleged that she worked as a case manager in San Antonio public schools.  She claimed that she alerted the San Antonio Police Department (SAPD), when she learned that an individual subject to a restraining order had contacted a student in violation of that order.  Officers were dispatched to the student’s home but no action was taken because the officers did not believe there to be a valid protective order in place.  

The plaintiff, believing that an order did exist, was frustrated by her feeling that the officers “did not want to do their job to protect her student.”  From her home later that day, the plaintiff posted to her Facebook account a profanity-laden comment about the “lazy ass, mother-effers on B-shift who don’t care to do their jobs the way they’re supposed to.”

The plaintiff’s husband, who was also an officer on the SAPD, allegedly received unspecified threats from other officers.  The plaintiff also claimed that a copy of her Facebook posting was displayed at the police station.

About a week later, the plaintiff claims that two officers went to the high school where the plaintiff was assigned and told the principal that they needed to speak with the plaintiff about “a complaint.”  The plaintiff claims that, after she arrived, one officer told the principal that the plaintiff should be disciplined for her Facebook message and that failure to do so would “endanger relations” between the police department and the high school.  The plaintiff also claims that one of the officers demanded that she apologize for the posting but that she refused to do so, citing her right to free speech.

She was fired the following day.  She sued the individual officers and the SAPD on a variety of constitutional grounds. The defendants moved to dismiss.

Most of the claims were dismissed but her First Amendment claim survived.  She had, after all, alleged that she engaged in constitutionally protected activity-i.e., her Facebook post.  She also claimed that the police officers told the principal that, unless the plaintiff was disciplined for that protected speech, the school’s relationship with the police department would be “endangered.”  And she was terminated the next day. 

Those facts, the court concluded, were sufficient to establish the cause-and-effect relationship necessary to survive a motion to dismiss.  As I indicated above, this case is particularly interesting because the employee did not sue her employer but, instead, sued the police-the party that she believes caused her employer to terminate her employment. 

Had she sued the employer, her claims would have been subject to a different analysis and would likely have come out in the employer’s favor.  This tactic wouldn’t work in every situation-it works here only because the complaining party (the SAPD), is a public entity.  If private citizens had complained, the plaintiff would have had very different claims.  For an example, see this recent post about a lawsuit brought by an employee about a customer who complained about the employee via social media

Do these cases indicate an expansion of likely defendants?  Will there be less lawsuits against employers or just more lawsuits altogether? 


Perez v. Tedford, No. SA-13-CV-429-XR, 2013 U.S. Dist. LEXIS 151149 (W.D. Tex. Oct. 22, 2013).

See also 11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).