Private Employer Justified in Terminating Employee for Offensive Facebook Posting

Author: Beth P. Zoller, XpertHR Legal Editor

February 6, 2014

In a recent federal district court case, an employee who engaged in abusive, harassing and offensive behavior via social media lacked a First Amendment claim against her employer. The Court dismissed the employee's First Amendment claim because the employer is a private entity, and First Amendment protections only apply to public entities or forums. In addition, the Court dismissed the employee's claims, based on various laws, that her termination was unlawful.

A hospital employee posted the following comments about her supervisor on her public Facebook wall:

Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I hate loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything to smack you down and pound you to unconsciousness. ...

One of the employee's co-workers viewed the post and shared it with the employer. The employee was subsequently terminated. She filed for unemployment benefits but was denied on the basis that she was discharged for misconduct and had violated the employer's policy prohibiting "threatening, intimidating, coercing, harassing [and] using abusive language or behavior."

The employee subsequently filed claims in state court against the employer for violations of the California Fair Employment and Housing Act, intentional infliction of emotional distress and negligent supervision, among other claims. The court dismissed all of the employee's claims because she had posted a credible threat of violence against her supervisor and because her Facebook posting threatening to injure or kill her supervisor was not "Constitutionally protected free speech under the First Amendment."

The employee also filed claims in federal district court against her employer alleging that it breached the collective bargaining agreement and violated her constitutional First Amendment right of free speech. The court dismissed her breach of contract claim because, as a union member, the employee failed to exhaust the grievance procedure under the collective bargaining agreement before filing a claim in court. The court also dismissed her First Amendment claim because the California constitution does not allow employees to bring First Amendment claims for violation of free speech against private employers.

This case reinforces the fact that any employer, whether private or public, should take swift steps to discipline workplace threats of physical violence, whether those threats are delivered in person or through social media channels. Further, employees may be reprimanded for social media postings which are harassing, discriminatory, and offensive.