Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘free speech’

Woman Who 'Flipped Off' President Loses Termination Lawsuit

Thursday, July 12th, 2018

The woman who was infamously fired after giving the middle finger to President Trump has lost her wrongful termination case. A Virginia judge tossed Juli Briskman’s lawsuit, finding no First Amendment protection for private sector employees.

The ruling was not unexpected. In general, private employees are not shielded from repercussions for their words or actions, even if the conduct occurs off-duty and away from the workplace. First Amendment advocates worry about reprisal against employees who do not share their employers’ political beliefs or who openly oppose the administration in power.

Are employees ever on their own time?

Juli Briskman was riding her bike last October when the president’s motorcade drove by. She “flipped the bird” to express her personal feelings, a gesture captured by a White House pool photographer. The photo went viral but did not identify Briskman, who outed herself by re-posting the photo to Facebook and Twitter.

Soon after, she was fired by her employer, Akima LLC, ostensibly for violating the company’s social media policy. But Briskman claimed she was told by management they had to let her go because her anti-Trump gesture might anger the White House and cost them lucrative government contracts. She sued for wrongful termination, arguing that private speech – she was off-duty and away from work — is protected under state and federal free speech exclusions.

Judge Penney Azcarate dismissed the lawsuit, saying that those First Amendment exclusions do not apply in the private sector, where employment is at-will. She added that she would have ruled the same had Briskman given the finger to President Obama.

Azcarate let stand one part of the suit. Briskman said she was promised four weeks’ severance but was only paid two weeks’ worth. She was granted a month to amend her lawsuit accordingly.

Freedom of expression vs. business interests

Briskman’s lawyer alluded to broader ramifications. “Juli Briskman’s case is about democracy and the grave threat facing all Americans if keeping our jobs relies on our unconditional silence and support of the government in power.”

The defense lawyer said the underlying issue is much more simple. “The company found out about a rude and profane act and Akima decided it wasn’t interested in continuing with that particular person.”

Employees’ free speech has limits … and consequences

In the last few years, countless people have faced public backlash and been fired or suspended from their jobs (public and private sector) for speaking their mind on social media:

  • In West Virginia in 2016, the director of a nonprofit was fired for racist comments on Facebook about Michelle Obama. She compared the then-First Lady to an ape. The mayor of the town, who replied that the offensive comment had “made my day,” also resigned as a result of the furor.
  • Earlier that year, a mortgage company employee tweeted a similar offensive remark about the First Lady. Twitter users complained to her employer, who summarily fired her.
  • A CBS executive was fired in 2017 for saying on Facebook that she had no sympathy for the victims of the Las Vegas shooting massacre because they were country music fans and thus presumably Republicans.
  • In the wake of the Charlottesville alt-right rally, at least four people lost their jobs after they were outed on social media for embracing Nazi ideology.
  • Comedian Roseanne Barr had her hit TV show cancelled by ABC after a series of Twitter rants. The final straw was a tweet that seemed to disparage both African-Americans and Muslims.
  • A New York Times writer was fired for a tweet equating President Trump’s inauguration day with the attacks on Pearl Harbor and the World Trade Center.
  • A California prosecutor has been suspended (with pay) after a profanity-laced social media tirade against Rep. Maxine Waters, Michelle Obama and Mexican immigrants.

The common thread is that all of these people were on their own time, on their private social media accounts, in a non-work capacity. The First Amendment guarantees against government censorship of free speech, but does not necessarily exempt free speech from employment consequences. In an at-will employment state (like Virginia), employees can be terminated for violating explicit social media policies or other written codes of conduct, for conduct that reflects poorly on the employer, or for no reason at all.

The question raised by Briskman and her proponents is how far employers can go in policing the private speech of their workers, and whether political views are grounds for dismissal if the employee’s beliefs do not align with the boss’s beliefs. In other words, do employees effectively forfeit their First Amendment rights by accepting a job?

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on July 10, 2018. Reprinted with permission. 

About the Author: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

She gave the President the finger. Employer gave her the boot.

Thursday, April 19th, 2018

Juli Briskman was on her own time, riding her bicycle, when President Trump’s motorcade drove by. She expressed her personal feelings with a middle finger salute, not realizing that a news reporter had captured her gesture on camera.

She abruptly lost her job after the photo went viral on social media. Her employer, a government contracting firm, feared the Trump administration would retaliate by withholding or not renewing contracts. She has sued for wrongful termination.

Did her employer’s action violate her rights?

Briskman was forced to resign in November 2017. She has now filed a lawsuit against her employer, citing violation of her civil rights. There are limits on free speech in the workplace. But she wasn’t in the workplace. When she “flipped the bird” at the president and his motorcade, she was doing so as a private citizen.

Giving someone the finger, however uncouth it may seem, is protected speech under the First Amendment. Employers do have some leeway to discipline or fire workers if they badmouth the company or if their personal conduct violates a corporate policy.

Briskman is claiming that she was fired as a sacrificial lamb. Her employer, Akima, has government contracts. The company has not claimed that her speech violated policy or offended her co-workers. Rather, she contends the company terminated her to avoid the wrath of the White House. The stated reason for her forced resignation was that the company could lose out on lucrative contracts if she were retained. In other words, the company retaliated against her before the president could retaliate against the company.

Can an employer pre-emptively terminate a worker for what might happen?

Ms. Briskman would likely still have her job if she had given the finger to anyone other than the president of the United States. And perhaps if it had been any other president. Maybe management was pressured by the White House through back channels. Maybe they just weren’t taking any chances.

The question for the court, or a jury, will be whether Akima was within its rights to take adverse employment action against an employee for (a) private speech that could (b) potentially but not necessarily affect its future contracts.

“Working for a company that does business with the federal government should never limit your ability to criticize that government in your private time,” Briskman has stated.

This unsettled legal issue will likely come up again

In the age of social media, clashes between free speech and employment are increasingly common. What you post on Facebook or Instagram on your free time may be visible to your bosses. Anyone with a cellphone can capture your strong words or rude gestures and make you suddenly (in)famous on the internet.

It will be interesting to see where this lawsuit goes. Do you think political speech or personal opinions while you are off duty should be protected? Or should employers be able to fire workers for free speech that results in backlash against the company?

This blog was originally published at the Passman & Kaplan blog on April 18, 2018. Reprinted with permission.

About the Author:  Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Republicans Are Taking Voter Suppression to the Workplace

Tuesday, January 16th, 2018

A Republican party that survives through voter suppression may be replicating its model in the workplace. In December, the National Labor Relations Board (NLRB) invited public commentary on a possible revocation of a rule that makes employers provide union organizers with contact information for workers in advance of a representation election.

Ostensibly, the Board, which will almost certainly remain in control of Republicans until 2021, is reconsidering Obama-era rules that sped up the timeline of union elections and added phone numbers and email addresses to the list of contact info that unions must be furnished before an election. But outgoing Board Chairman Phil Miscimarra’s bellyaching about “employee rights of free choice and privacy” implies openness to removing any legal right of union organizers to talk with potential members.

The very fact that Trump’s NLRB is inviting public comment indicates that it is considering reversing a much older precedent: the 52-year-old Excelsior rule that employers should provide a list of names and addresses of eligible voters in an upcoming union certification election. Sharon Block, a former member of the NLRB and current Executive Director of the Labor and Worklife Program at Harvard Law School, has argued that the slew of hastily-decided reversals of second-term Obama precedents “seemed to be a rush to set the clock back on workers’ rights as much as possible.”

The Excelsior rule makes employers provide union organizers with a list of eligible voters and their home addresses a few days before an election. It’s an essential tool in a campaign, and any cut is a blow to unions. However, it is also important to remember that Excelsior was a bad compromise, and a real solution lies in actual free speech in the workplace. That will require that unions wage a free speech fight to regain our voice at work.

Captive-audience meetings versus knocking on doors

As soon as the National Labor Relations Act was passed in 1935, employers were already challenging the legal framework for workers to organize and bargain collectively.

In six short years, the bosses succeeded in demolishing the Act’s mandate of employer neutrality by strenuously appealing to the Supreme Court that the standard restricts bosses’ First Amendment right to inform their workers about just how strongly they oppose unionization. Six years after that, a Republican Congress codified this unequal application of free speech in the Taft-Hartley Act.

For a brief time after Taft-Hartley, the NLRB enforced an equal time standard by granting union organizers access to talk to workers on the job when an employer conducted captive-audience meetings. In an all-too-familiar pattern, the Board ping-ponged back and forth between different legal standards on employer speech and union access, depending on which political party was in the White House, until 1966.

That was the year of Excelsior Underwear, Inc ., the NLRB decision that established the right for unions to be furnished with a list of names and addresses of eligible voters. It was issued on the same day that the Board declined to reinstate the equal time rule. The case that we should have won that day was General Electric Co. and McCulloch Corp.

Loathe to trample on management’s rights and private property, the Democratic majority begged the unions in that case to try visiting workers at home and see if that effectively counter-balanced the boss’s work-time campaigning.

Anyone who has worked as a union organizer will tell you that an Excelsior list is no match for the mandatory round-the-clock campaigns of intimidation that union-busters consider “management’s most important weapon” in beating back an organizing drive.

Kate Bronfenbrenner, director of Labor Education Research at Cornell University, has been documenting employer union-busting tactics for decades. Her most recent study, covering the period of 1999 to 2003, found that 9 out of 10 employers use captive-audience meetings to fight a union organizing drive. Bosses threaten to cut wages and benefits in 47 percent of documented cases, and to shut down entirely in 57 percent of union elections. Incredibly, in one out of 10 campaigns employers hired “consultants” to impersonate NLRB agents.

That report is nearly nine years old. It is likely that when Dr. Bronfenbrenner updates her research, all of these numbers will be even higher—particularly the instances of outright lies and deception.

Within the General Electric Co. and McCulloch Corp. decision, the NLRB explicitly invited unions to press the issue of equal time if experience were to prove that knocking on workers’ doors was no match for mandatory captive-audience meetings. Labor law scholars Charles Morris and Paul Secunda were clever enough to notice this half-century-old invitation. Last year, they organized 106 of their leading peers to sign on to a petition to the NLRB to reinstate the equal time rule.

The right to free speech

We shouldn’t hold our breath waiting for Trump’s NLRB to respond to that petition, but we also shouldn’t be patient about demanding change. This past summer, I proposed that unions wage a constitutional battle to challenge the most unequal aspects of labor law and fight for workers’ constitutional rights on the job. Call it Labor’s Bill of Rights.

At the heart of the problem is that the National Labor Relations Act derives its constitutional authority from the Commerce Clause. That means that when workers’ rights are challenged in the courts, judges are weighing corporations’ First Amendment claims against unions’ claims that workers’ rights to organize and go on strike are good for business.

Under that framework, bosses’ rights and business interests have trumped workers’ free speech and human rights. Consider union certification elections. These are official legal elections conducted by an arm of the federal government. At stake is whether the government will enforce certain statutory rights of the workers who wish to form a union. The rules of the election are determined by the government through court decisions, congressional action and NLRB rule-making.  In this simple “yes” or “no” vote about whether there shall be a union, only an employer—and only one advocating a “no” vote—can force voters to attend speeches where they will tell them how to vote And if any voter declines to attend, she can be fired. This is compelled political speech and a massive violation of workers’ free speech rights.

Perversely, Trump’s NLRB could be doing us a favor if it really does kill Excelsior lists by making the imbalance of free speech rights in union organizing campaigns that much starker. Regardless of what new form of union busting the Trump NLRB endorses, we should start waging a campaign to restore the equal time rule now.

What this free speech fight would look like as a campaign is this: every time an employer stages a captive-audience meeting in advance of a union election, we should file an Unfair Labor Practice charge. And every time a union loses an election where the employer conducted captive-audience meetings (which, again, is almost always), we should file an appeal to have the election results overturned.

We should be filing these cases now, even with a Trump Board that will dismiss them all. If we can file a couple hundred challenges and make enough noise about them, we can turn the free speech fight over captive-audience meetings into an obvious controversy that the next Democratic-majority NLRB must respond to.

A Democratic NLRB with a modicum of decency would—at a minimum—re-establish the rule that conducting captive-audience meetings while providing union advocates no right of response is grounds to void an election and order a re-run. Better would be a rule making the very act of conducting captive-audience meetings an Unfair Labor Practice subject to court injunctions, unless union advocates are granted an equivalent platform—in work locations, on work time—from which to campaign for a union yes vote.

If the NLRB were to rule in our favor, we should expect the first employer to face sanctions to resist and drag the case into the federal courts. And then we’re off to the races with a well-deserved counter-attack to the cynical right-wing HarrisFriedrichs and Janus efforts to use free speech as a cudgel against union rights.

This article was originally published at In These Times on January 16, 2018. Reprinted with permission. 

About the Author: Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.

NFL Players Association Responds to Attacks on Free Speech

Tuesday, September 26th, 2017

After President Donald Trump and others attacked the free speech rights of athletes, the NFL Players Association (NFLPA) responded to the president’s comments.

NFLPA Executive Director DeMaurice Smith said:

The peaceful demonstrations by some of our players have generated a wide array of responses. Those opinions are protected speech and a freedom that has been paid for by the sacrifice of men and women throughout history. This expression of speech has generated thoughtful discussions in our locker rooms and in board rooms. However, the line that marks the balance between the rights of every citizen in our great country gets crossed when someone is told to just “shut up and play.”

NFL players do incredible things to contribute to their communities. NFL players are a part of a legacy of athletes in all sports who throughout history chose to be informed about the issues that impact them and their communities. They chose—and still choose today—to do something about those issues rather than comfortably living in the bubble of sports. Their decision is no different from the one made by countless others who refused to let “what they do” define or restrict “who they are” as Americans.

No man or woman should ever have to choose a job that forces them to surrender their rights. No worker nor any athlete, professional or not, should be forced to become less than human when it comes to protecting their basic health and safety. We understand that our job as a union is not to win a popularity contest and it comes with a duty to protect the rights of our members. For that we make no apologies and never will.

NFLPA President Eric Winston said:

Our players are men who are great philanthropists, activists and community leaders who stand up for each other and what they believe in.

I am extremely disappointed in the statements made by the President last night. The comments were a slap in the face to the civil rights heroes of the past and present, soldiers who have spilled blood in countless wars to uphold the values of this great nation and American people of all races, ethnicities, genders and sexual orientations who seek civil progress as a means to make this country, and this world, a better place.

The divisiveness we are experiencing in this country has created gridlock in our political system, given voice to extreme, fringe beliefs and paralyzed our progress as a nation. Divisiveness breeds divisiveness, but NFL players have proven to unify people in our country’s toughest moments and we will continue to do so now.

We will not stop challenging others on how we can all come together to continue to make America the greatest country on earth.

This blog was originally published at AFL-CIO on September 26, 2017. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.

A “Like” is a Like, Court Says, and is Protected Free Speech

Wednesday, September 25th, 2013

portrait-schwartzIn a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1? on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

This article was originally printed on Connecticut Employment Law Blog on September 19, 2013.  Reprinted with permission.

About the Author: Daniel Schwartz is an experienced employment law attorney, a Bar leader, an award-winning author, and a noted speaker. He is a partner at Shipman & Goodwin LLP.

Law Office Fires 14 Workers for Wearing Orange Shirts

Thursday, March 22nd, 2012

Mark E. AndersonWhere I work, we get donuts on payday Friday. At one law office in Florida, workers go to happy hour after work. They all wear the same color shirt so they look like a group when they go out for happy hour.

A lot of places get crowded for happy hour on Friday nights, so it makes sense to me that they would wear a visible color so group members could find each other. On one recent Friday,

14 workers wearing orange shirts were called into a conference room, where an executive said he understood there was a protest involving orange, the employees were wearing orange, and they all were fired.

The executive said anyone wearing orange for an innocent reason should speak up. One employee immediately denied involvement with a protest and explained the happy-hour color.

The executives conferred outside the room, returned and upheld the decision: all fired, said Lou Erik Ambert, 31, of Coconut Creek, a litigation para-legal who said he was terminated.

Fourteen people fired because an executive was paranoid about some type of worker protest that wasn’t even happening. And people say we don’t need unions today because the “job creators” don’t do things like this? Seriously?

This is perfectly legal too as Florida, like most states, is an at-will state. With few exceptions at-will means the employer is free to discharge individuals for good cause, or bad cause, or no cause at all and the employee is equally free to quit, strike or otherwise cease work.

Some of the employees who were fired for wearing the same color shirt spoke to a local newspaper. “There is no office policy against wearing orange shirts. We had no warning. We got no severance, no package, no nothing, I feel so violated,” according to one. Another said “I’m a single mom with four kids, and I’m out of a job just because I wore orange today.” One wants us to know they weren’t protesting: “To my mind, protesting is where you put your foot down, and you’re not working. There was none of that today.” But that doesn’t matter—all that matters is that their boss thought they might be protesting.

Fired for wearing orange without warning and because of the paranoid delusions of a “job creator.” His assumption that his employees were protesting management just cost 14 people their livelihoods. This is so wrong on so many levels and is just one more reason why unions are necessary.

This blog originally appeared in Daily Kos Labor on March 21, 2012. Reprinted with permission.

About the Author: Mark Anderson, a Daily Kos Labor contributor, describes himself as a 44 year-old veteran, lifelong Progressive Democrat, Rabid Packer fan, Single Dad, Part-time Grad Student, and Full-time IS worker. You can learn more about him on his Facebook, “Kodiak54 (Mark Andersen)”

Do the New NLRB Rules Really Help Workers Organize?

Friday, January 28th, 2011

Mike ElkA series of rules have been proposed recently by the National Labor Relations Board that improve the rights of workers on the job. The rule changes by the NLRB have been hailed by organized labor as great triumphs that will promote the right to organize. But some question whether the regulations go far enough.

In December, the NLRB ruled that employers must start posting the rights of workers to join a union. This decision was met by many congratulatory press releases celebrating a great victory for unions. AFL-CIO President Richard Trumka hailed these rules saying:

Every working person in America deserves to know his or her rights. Just as employers are currently required to post information regarding the laws that protect workers’ health and safety, their rights to a minimum wage and to a workplace free from discrimination, this rule ensures that workers’ rights are effectively communicated in the workplace. It is necessary in the face of widespread misunderstanding about the law and many workers’ justified fear of exercising their rights under it.

In November, the NLRB ruled that expressing one’s negative opinion of a boss using social media such as Facebook or Twitter was free speech protected by the Constitution. This was hailed as a major victory for workers trying to organize because it gave broader protection to workers criticizing their companies. In October, the NLRB issued a decision saying that employers now must electronically inform workers through email of their union busting violations. Previously companies were forced to only post a notice on a bulletin board.

Each time these rulings are issued by the NLRB, they are lauded as signs of great progress by organized labor. However while the NLRB has expanded the rights of workers in theory, it still has not changed the penalties for illegal union busting. Requiring an employee to send out an e-mail as opposed to posting a paper notice or having to post the rights of a worker to join a union does not change an employer’s behavior of intimidation.

Employers still face no serious financial penalties or lose government contracts for illegally firing a worker. Nor has the NLRB shortened the election period to seven days—as many in labor hoped—in order to prevent the boss from running effective intimidation campaigns for months. So why do so many in organized labors celebrate these rulings with such great hope?

What these ruling represent is that the NLRB has shown the willingness to change the rules ever so slightly in order to protect the rights of workers. The NLRB has shown it has the power and willingness to do it. However, until the NLRB is willing to issue tough penalties and improve voting conditions for workers, these expanded workers’ rights will help workers little as they exercise their right to organize.

This article was originally published on Working In These Times.

About the Author: Mike Elk is a third-generation union organizer who has worked for the United Electrical, Radio, and Machine Workers, the Campaign for America’s Future, and the Obama-Biden campaign. He has appeared as a commentator on CNN, Fox News, and NPR, and writes frequently for In These Times, Huffington Post, Alternet, and Truthout.

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