Many courts around the country have ruled that much of an employee’s activity on social media sites, such as Facebook and Twitter, is protected activity under the First Amendment of the Constitution of the United States. This means that employees may not be terminated or disciplined for protected online speech. However, this is not a blanket rule for all social media activity, as courts analyze the facts of each individual case. In one recent Oregon case, in fact, the court found an employee’s Facebook activity was not protected by the First Amendment and that her termination was justified.
Disparaging Her Clients Online
Jennifer Shepherd worked as a caseworker for the Oregon Department of Human Services. She investigated reports of child neglect and abuse, worked with the District Attorney to bring claims in juvenile court, and often made recommendations on the witness stand in juvenile court regarding her cases. Shepherd was supposed to be a neutral and objective appraiser of the home situations and give the families a fair recommendation in court. She was not allowed to consider the parents’ religious beliefs, political beliefs, employment status, or financial habits in making her recommendations.
During her employment, Shepherd had a personal Facebook page that specifically identified her as a “Child Protective Services Case Worker at Department of Human Services.” Therefore, her hundreds of “friends” on Facebook were aware of her job title and employer. On her Facebook page, she regularly posted status updates and comments complaining about her clients. Specifically, she complained about families who were on public assistance and had nice cars or televisions in their homes. She openly shared her beliefs that people on public assistance should not have additional children, should be on birth control, should not receive a tax return, and should not own flat-screen televisions. She claimed that people on food stamps should not buy soda, steak, candy, or other junk food. Finally, she stated that any parent who physically abused their child should be physically abused themselves. Ultimately, Shepherd was terminated as a result of her biased Facebook comments and she filed a lawsuit against the Oregon DHS for wrongful termination.
The United States Court for the District of Oregon decided in favor of the employer. The court agreed with DHS that the Facebook comments destroyed Shepherd’s credibility as an impartial witness and completely impaired her ability to do her job. Therefore, the employer had a legitimate interest in terminating her employment that outweighed her First Amendment protections in regard to her employment.
Though courts often uphold employee rights to express themselves on Facebook, some terminations stemming from social media activity are legitimate. If you have any questions or concerns regarding employee use of social media, contact HKM Employment Attorneys today.
