“President Trump is a Big Fat Idiot” or, for that matter, “Secretary Clinton is a Sore Loser.”
Let’s suppose you see one of your employees tweeting one of these expressions on Twitter during non-work hours from a personal account.
Can you discipline or even fire your employee over that tweet?
That, in essence, is at the heart of an issue that has been circulating in the sports pages (and in the President’s press briefings) over the last week due to the tweets of ESPN Sportscenter Anchor Jemele Hill from her personal account that were critical of the President.
The New York Times, in fact, ran a story on Saturday discussing the legal ramifications; it was nice to be quoted in the article.
While that article does a good job of summarizing the law in part, there’s a bit more to the story that is useful exploring (however briefly) in a blog post.
First off, people do not generally have a First Amendment protection for things that that they say that their employer finds out about.
Say you go to a white supremacist rally in, oh, Charlottesville and your employer finds out about your speech at the rally. You can be fired because of that generally.
But but but.
A state like Connecticut has a law that says that gives employee a right to sue their employer if the employer disciplines or fires the employee because of that employee exercised their free speech rights under both the First Amendment to the U.S. Constitution, AND the Connecticut Constitution.
Importantly, the speech has to be of a matter of “public concern” and courts will look to see if the person is speaking in his or her capacity as a concerned citizen; criticisms of your own personal workplace will often times not satisfy this standard.
Political speech is almost always the type of speech that courts will consider of a “public concern”.
The Connecticut Supreme Court said in 1999 (not 2015 as The New York Times indicated) in Cotto v. United Tech. Corp. that Connecticut’s free speech statute applied to speech made at an employer’s premises.
A later ruling by the U.S. Supreme Court in Garcetti though said that some workplace speech related to a person’s official job duties may not be protected, even if the underlying issue is of a public concern.
That seemed to knock down a bunch of free speech claims and culminated in a 2012 Connecticut Supreme Court case that I was involved with that agreed with the U.S. Supreme Court and said Connecticut’s state law was limited by that U.S. Supreme Court ruling.
In 2015, the Connecticut Supreme Court did say that some job-related speech at a private workplace might be protected under the Connecticut Constitution after all, but it did not change the standard for speech outside the workplace.
With that background, you can now see issue number one for a court to consider in looking at an employee’s tweet: If the speech is of a public concern, is the speech related to an employee’s official job duties?
If it does, then Connecticut’s Constitution might still protect that speech if it implicates an “employer’s official dishonesty…other serious wrongdoing, or threatens to health and safety that the speech trumps the employer’s right to control its own employees and policies.”
I explained more about that case back in a 2015 post.
Now, getting back to our example, it’s pretty obvious that being critical of the President doesn’t relate to an employee’s own workplace. If an employee’s job requires them to tweet after hours, then perhaps the speech might relate to an employee’s official job duties.
In many cases, though, the tweet will not relate to an employee’s job duties and it made be made off the employer’s premises. Can the employer still discipline the employee?
Connecticut’s statute actually speaks to this, thus providing a safeguard for employers.
A court looking at this would ask whether the speech “substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer”.
But what all the commentators and so-called experts miss out on is the fact that it is the employee and NOT the employer, that would ultimately need to plead and prove that their speech did not substantially or materially interfere.
And that standard is not necessarily easy to be met in its application by numerous state courts.
Getting back to the employee’s tweet: Suppose that an employee’s tweet causes a disruption. Maybe it’s not drawing as much attention as the President himself, but enough that lots of employees are talking. Or perhaps the tweet gets seen by customers who seem to be shying away from your business the last few weeks. What then?
Well, the employer could then seem to be a position to discharge or discipline the employee for off-duty speech arguing that the speech has caused a rift in the working relationship with the employer and was interfering with the employee’s performance.
And the employee would have a tough time arguing that such interference was not material.
Suppose, though that no one really saw the tweet and it’s only discovered weeks later by the employer. In that case, the employer may have a more difficult time because the speech has had no discernible impact on the workplace.
What does that mean for the Jemele Hill matter? Well, candidly, we just can’t tell.
What we do know is that there are significant other factors in play. She likely has an employment agreement that might create additional terms of employment and standards that must be met. And the ESPN social media policy would have to be looked at. And, the employee’s overall performance might be evaluated. And the employer’s past practices would likely be reviwed. And the private discussions ESPN likely has had with Ms. Hill would be considered.
You get the idea. ESPN is comprised of some really bright people who bring a good deal expertise to bear. No doubt they’ve looked at what they CAN do. And also, perhaps more importantly, what they SHOULD do.
And so, beware of the experts who opine on whether ESPN can (or even should) fire Jemele Hill. Some of the analysis is solid.
But the real story is far more complicated than you could fit in a tweet.