Employment Lawyer Answers: “Do I have First Amendment Rights to post about my job?” “What should I do if my boss fires me for my social media posts?” “Can my boss look at my Facebook page?”
Social media is a growing trend, and it is critical to be careful while posting on Facebook and other social media sites. Cases involving social media posts are often resolved in favor of the employer. Most recently, in Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013), a court held that Child Protective Services (“CPS”) worker, Jennifer Shepherd’s personal posts on her Facebook page gave the Department of Human Services (“DHS”) reasonable justification for terminating her, which outweighed her First Amendment right to free speech.
While employees that work for private companies have no First Amendment protection from getting fired (the First Amendment only applies to government action), government employees enjoy some First Amendment protection of their speech and may, in some cases, file a claim against a government employer who retaliates against the employee for exercising this right. These claims involve answering five questions: (1) whether the speech was a matter of public concern, (2) whether the employee was speaking as a private citizen or public employee, (3) whether the speech was the motivating factor causing the retaliation, (4) whether the state was adequately justified in its different treatment of the employee, and (5) whether the state would have taken the same action absent the speech.
In Shepherd, the only question the court considered was whether the DHS had reasonable justification for terminating Shepherd. A government employer may have reasonable justification for terminating an employee if the employee’s speech substantially interferes with the employee’s ability to perform his job. As a CPS worker, Shepherd’s job duties included making a neutral determination regarding whether a child is safe in his home and making a plan for safety if a child must be removed. Shepherd also had to testify in court when needed, which was around six to eight times per month.
Shepherd had a personal Facebook page, with her privacy set so only her friends could view her posts. On her page, Shepherd posted comments about her clients. She never revealed any personal information; rather she posted general observations about clients who owned expensive material items, such as a newer BMW and flat screen TVs, despite being on government assistance or not paying any taxes. She also listed some “rules for society,” including requiring birth control for those on public assistance and forbidding people to have more children if their parental rights were previously terminated. Although the posts were intended to be “humorous” and “ironic,” there was testimony at her trial that these statements undermine Shepherd’s credibility in her child protective custody cases.
Because Shepherd’s credibility was now in question, the court held that her Facebook posts, “creat[ed] substantial interference with her ability to perform at least one important duty of her job.” This gave the DHS reasonable justification to terminate her. Shepherd is an excellent example of the importance of being cautious about what one posts on social media sites.
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