Favorite Firing: Can an Employee Be Fired for Calling Someone “a Little B!+$#” ?

A new case in Kentucky raises interesting questions about the differences between public and private employers. The Kentucky case involves a bus driver who worked for a school district. The bus driver claims she was fired in violation of the First and Fourteenth Amendments of the U.S. Constitution because of something she said on Facebook. As a public employer, the school district is subject to constitutional limits on how it deals with its employees.

Employees of private employees cannot claim the protection of the First and Fourteenth Amendments. But the myriad of federal and state laws might still permit an employee to sue if a private employer fired the employee in similar circumstances.

All employers should re-assess their social media policies, given recent developments in state legislatures and in the National Labor Relations Board (NLRB).

The Facts: Debora Robinson had been a school bus driver for the Grayson County Board of Education in Kentucky for many years. Robinson sent a private Facebook message to a female student in the Grayson County school district. In this message, Robinson told the student not to bully Robinson’s son.

Further Facebook messages were exchanged between Robinson and the girl, in which both used profanity. In one of the later messages, Robinson referred to the student as “you little bitch.” When the school district learned that Robinson had called the student a “little bitch,” she was fired.

Robinson then sued in the U.S. District Court for the District of Kentucky, claiming that her message had nothing to do with her employment, because she was “off the clock” when she sent it, she used her own computer, and the student had never been a rider on her bus. She alleged that her termination violated her freedom of speech rights under the First Amendment of the U.S. Constitution, her equal protection and due process rights under the Fourteenth Amendment, and also violated similar provisions in the Kentucky Constitution.

The school district told Robinson she was fired for violating school board policy. Robinson’s lawsuit claims there was no written social media policy, nor any guidelines telling employees what they could and could not say in social media communications with students.

This lawsuit was just filed on January 8, 2013, so we don’t know yet how it will turn out. (Quite possibly, the case will settle, and we won’t ever know the outcome.)

But the case raises cautions for all employers – public and private.

The Moral: Employers might be damned if they do and damned if they don’t in these situations.

If Robinson hadn’t been fired, might the student have sued the school district for permitting its employee to harass her? As far as  I know, the student didn’t sue, but such a lawsuit is quite plausible. After all, an employer might well be found to be liable if one employee sends sexually suggestive messages to another employee, and the employer does nothing to stop the harassment. Why wouldn’t a school district be found liable for the conduct of its employee toward a student?

But there are many pitfalls for employers to watch for as they seek to contain employees’ conduct toward others.

Constitution: The Constitutional theories Robinson raises in her complaint apply to all federal government employees, as well as to state and local government employees through the Fourteenth Amendment.

These government employees have protected property rights in their jobs, which governments cannot take away without due process. Due process requires notice and a hearing. If an employee does not have notice of what might be grounds for dismissal, the employee can attack his or her dismissal or other disciplinary actions as unconstitutional.

Even though employees of private companies have no constitutional protections at work, there are many other grounds for private employees to sue in situations similar to Ms. Robinson’s.

Federal Law. First, there are federal nondiscrimination statutes such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Private employers can have policies that say an employee may not use profanity on or off the job, so long as that policy is enforced in a non-discriminatory fashion. However, if only minorities or women or foreign nationals are fired for violating the policy, then the terminated employees have good claims for employment discrimination.

State Law. Many state laws also protect employees from dismissal unless their conduct is job-related.  For example, in California, Labor Code Section 96(k) provides that employees may not be disciplined for lawful conduct during non-work time away from the workplace. Some other states have similar laws. Laws in this area vary widely state by state, and each state has different nuances and interpretations in its statutes.

NLRB.  Recent developments at the National Labor Relations Board attempt to limit how even non-union employers can discipline employees for off-work behavior, including their use of social media.

For all these reasons, both public and private employers should have clear policies on employees’ conduct away from the workplace, including use of social media and other communications tools.

Most employees today have access to email and social media tools, which they may well use to communicate with other employees and with customers and members of the public they encounter during their work days.

Employers are only one text message or Twitter or Facebook post away from potential liability for what their employees do; they should be clear on their expectations for how employees communicate in ways that might impact the workplace.

Employers should involve experienced Human Resources staff and employment attorneys in the drafting and review of these policies. It is important to be sure the employer is not overreaching under the state and local laws where the employer is located.

Meanwhile, we will watch to see whether the Robinson case determines whether employees in Kentucky can call someone a “little bitch” with impunity.

How far do you think employers should be able to control their employees’ conduct? Does it make a difference whether the person complaining is a customer or user of the employer’s services (as the student was in the Robinson case?)

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Please send me ideas for stories on workplace terminations for this series. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.