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Tuesday, November 19, 2013

Government's Termination of Employee for Derogatory Facebook Posts Upheld

From Strategically Social:  Government can regulate its employee's speech on social media sites without offending the First Amendment. In Shepherd v. McGee, (D. Or. Nov. 7, 2013), an employee sued her former employer, the Oregon Department of Health Services, alleging First Amendment retaliation under Section 1983. Specifically, she alleged she was fired because of derogatory Facebook comments she made in violation of her First Amendment rights to free speech.

 The plaintiff was employed as a child protective services worker who determined child custody cases. On multiple occasions, she posted to her Facebook derogatory remarks about individuals on public assistance, including the following post:
I was listening to the radio and they were making up rules for society. Here are my rules: (1) If you are on public assistance, you may not have additional children and must be on reliable birth control (e.g. an IUD), (2) If you've had your parental rights terminated by DHS, you may not have more children.... it's sterilization for you buddy! (3) If you are on public assistance and don't pay taxes, you shouldn't get taxes back from that child tax credit[,] (4) If you are on public assistance, you may not own a big flat screen television, (5) If you receive food stamps, you should be limited on what you may purchase (no more ribeye steaks, candy, soda, chips, etc), (6) If you physically abuse your child, someone should physically abuse you, (7) I should be president so I can make up more rules, (8) If you don't like my rules, too bad. I have a Ph.D. and you don't so I get to make up my own imaginary rules.

After an investigation, DHS fired the plaintiff, and she sued.

In ruling in favor of DHS against the employee, the court looked at "whether the state had adequate justification for treating the employee differently from other members of the general public." The court agreed that the state had adequate justification for treating the plaintiff differently by firing her.
First, the court agreed with DHS that her posts irreparably impaired her ability to perform her duties, since every time she appeared in court to testify on a CPS matter, she would immediately be impeached by the defense attorney. In fact, DHS had already concluded that the employee's Facebook posts would prevent her from ever being called as a witness prospectively, even though she had been doing so 6 to 8 times per month as part of her job responsibilities.
Second, the court agreed with DHS that the Facebook posts caused disruption in the workplace sufficient to warrant her firing. Specifically, as a result of the Facebook posts, two coworkers doubted plaintiff's ability to be effective in her role. This was considered by the court to be sufficient evidence of a "substantial disruption" in their working relationships.
Finally, the court noted that the speech was not at the core of the First Amendment nor had it been disseminated to a wider audience, although the court noted that even if plaintiff's speech met either or both of these tests, the balance would still tip in the employer's favor. 


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