CPD Officer Faces Discharge for Social Media Posts
From Ancel Glink's labor & employment blog, The Workplace Report with Ancel Glink: CPD
Officer Faces Discharge for Social Media Posts
How bad must off-duty social media behavior be
in order for a public employer to justify discharging an employee for their
posts? In true lawyer fashion, the answer is probably “it depends”.
It depends on the position that the employee holds within the organization and
the content of the postings on social media.
Since officers hold a special position of trust
in society, police departments rightfully require that their conduct fosters
that trust and models law-abiding, respectful behavior. That’s why the Chicago
Police Department has moved to discharge a 25 year veteran officer for his off
duty social media posts. There is no doubt that policing, especially in urban
areas like Chicago, can be challenging and officers can develop jaded views of
society, but when an employee takes to social media to disparage groups it can
lead to trouble on the job.
The CPD officer facing discharge allegedly
posted racist and insensitive remarks on Facebook, including a cartoon of a boy
urinating on the word Allah, referring on Facebook to black children as “wild
African kids” and displaying a bumper sticker on his vehicle depicting a car
driving into a group of protesters with the words “all lives splatter,” to name
a few. The officer has also been the subject of 57 citizen complaints of unfair
or insensitive treatment.
CPD has a social media policy which includes a
prohibition of statements, both on and off duty that vilifies a group based on
race, religion, sexual orientation or other protected characteristics. The
policy is designed to protect against activity which may interfere with an
officer’s ability to discharge their duties in a fair and impartial manner and
might diminish the reputation of the department in the community. The results
of an investigation of this officer’s postings and actions found 62 separate
incidents of social media and vehicle postings which violated the policy.
The officer claims that discharging him for his
off-duty conduct and statements violates his First Amendment rights to free
speech. As we know, this can be a tricky analysis of balancing an individual’s
rights to speech and an employer’s rights to maintain order in its operation.
What CPD has done right is to issue a policy
which prohibits social media activity which disparages or defames groups of
citizens based on protected characteristics. The number of separate
postings and statements, coupled with the large number of citizen complaints
tends to show disruption of the department’s operation due to statements by the
officer attacking groups based on those protected characteristics which
diminishes or destroys the employee’s First Amendment protections.
Public employers should always conduct a two
part analysis before disciplining an employee for off duty social media
statements. A sound policy must be in place, coupled with actual evidence that
the employee’s statements caused disruption or inefficiencies to the employer’s
operations. While private employers do not face First Amendment challenges, in
a union setting, the same analysis will show “just cause” to discipline.
Post originally authored by Margaret Kostopulos, Ancel Glink
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