Juli Briskman was riding her bicycle on Lowes Island Boulevard mid-afternoon on Oct. 28 when she found herself in the same lane as the motorcade of President Trump, which was leaving the Trump National Golf Course in Sterling, Va. Ms. Briskman made a spontaneous gesture – she pointed her middle finger at the motorcade. News cameras captured the scene and the picture spread across the internet like wildfire.
Briskman had been working for Akima, a federal contractor, as a marketing and communications specialist, for six months. Although few could tell it was her in the picture, Briskman alerted Human Resources to the internet scandal. Her supervisors summoned her to a meeting, where they terminated her. Akima has a company policy against posting lewd and obscene things on social media pages; such postings could harm the company’s reputation as a government contractor.
Briskman’s social media pages do not mention her employer and the incident happened when she on her personal time. Briskman claims another employee had written a profane on Facebook, but was merely reprimanded and forced to delete the post, but allowed to keep his job.
Virginia, like most states, has “at will” employment laws. At will employment means private-sector employers can fire people for any reason, except for illegal reasons, such as illegal discrimination or breach of contract. If an employer doesn’t approve of a social media posting, the employer has the power to terminate that employee, regardless of how “fair” it is.Briskman could allege that there was illegal sex discrimination here, since her male co-worker was reprimanded for his crude internet posting while Briskman was outright fired. If the employer was biased against women, these incidents would be one manifestation of that bias.
Although Briskman was punished more harshly than her male co-worker, the employer may be within their right to do so as long as the employer has a reasonable explanation. The employer may believe that a personal insult directed at unknown persons is less damaging than insults thrown at public figures, especially since the public figure is famously thin-skinned. The employer might believe giving the middle finger to the President would harm their chances of obtaining a government contract whereas insulting random internet nobodies would not have the same adverse effect. Or the employer might be pro-Trump. The employer doesn’t need a good reason to terminate a worker, only a reasonable alternative to sex discrimination.
Can Employees Use Social Media Without Employers Watching?
So what can employees do if they don’t want their employers to monitor their Facebook or Twitter use? Currently, the law offers very little recourse for employees or potential employees. Remember, default employment law in the U.S. is “at-will.” If an employer doesn’t like Facebook pictures of their employees smoking marijuana, they can terminate an employee for that.
As stated earlier though, there is a line. Employers cannot violate employment laws or their own contracts with employees. Some people use marijuana to alleviate a disability. If a disabled employee asks an employer for a reasonable accommodation, the Americans with Disabilities Act requires the employer to honor it (it’s questionable whether using marijuana would be a reasonable accommodation under the ADA since marijuana is still illegal under federal law).
The second exception is that employers cannot violate their own contracts. Courts have recognized some employer policies as binding contracts between the employer and the employee. If an employer enacts a process of review for social media usage, the employer should follow that process. For example, Akima requires its employees not to post any obscene materials on their social media accounts. However, if Akima social media policy had required that all first time violations result in a warning, then Briskman might have a breach of contract claim. This of course depends on the policy, and how much each party relies on the policy.
Of course, the best revenge is success. After Akima fired Briskman, she received over $30,000 in donations from GoFundMe and 453,678 job offers. One of the biggest benefits of a free-market system is that if an employer is a real dummy about social media use, other employers will be more than happy to scoop up talented workers.