Employees, Facebook, and "Free Speech"
Are Employees’ Facebook Posts Subject to Disciplinary Measures or Protected as “Free Speech”?
By Paula Jackson
November 30, 2020
In the wake of the recent election and demonstrations seeking racial equality, employers may be confronted now more than ever with employee “freedom of speech” issues, such as whether to discipline employees for social media posts made outside the workplace. Employers must balance their employees’ rights to free speech while curbing speech that infringes on the rights of other employees, all while juggling the potential threat of lawsuits from both sides. So, how is this balancing act best accomplished?
The Sixth Circuit recently shed some light on this issue for Tennessee public employers in a case which has some potential takeaways for private employers too. In Bennett v. Metropolitan Government of Nashville and Davidson County, the Court determined whether the free speech interests of an emergency dispatch operator fired for posting a highly-charged racial slur on social media outweighed the emergency dispatcher employer’s interest in carrying out its mission to the public with efficient operations and harmonious work relationships. Applying the Pickering test, the Court considered whether the employee’s statement adversely impacted harmonious working relationships, impaired the employee’s duties, disrupted business operations, or undermined the employer’s mission. Bennett’s racial slur was ultimately not protected enough to stand up to the governmental employer’s interest in efficiently running its operations while maintaining effective work relationships and the public’s trust.
Although a private employer in Tennessee does not have the exact same considerations as a public employer, lessons can still be learned from the Bennett case. For example, Metro had a good process in place to timely investigate and evaluate potential employee disciplinary problems, including statements on social media such as Bennett’s racial slur. Once Metro received reports from its employees of Bennett’s potentially racially discriminatory post, Metro immediately began an investigation. Metro also quickly notified Bennett of the problem, requested that she remove the post, and offered her an opportunity to defend herself. Metro even offered to let Bennett apologize to her co-workers at roll call in an attempt to quickly correct the problem, which she declined to do. The Court deemed Metro’s investigatory process sufficient, indicating that the employer did not have to exhaust all avenues in its investigation due to time constraints but just needed to follow a reasonable process.
This case also demonstrates that social media policies that attempt to limit the employer’s exposure may be advantageous. For instance, Metro government had a social media policy that did not permit employees to post statements identifying themselves as employees without a disclaimer that their statements were not associated with Metro. Bennett posted her racially discriminatory comment publicly on Facebook while identifying herself as a Metro employee, but she failed to indicate that her statements could not be imputed to Metro, which violated its social media policy. The Court supported Metro’s decision to terminate Bennett because she negatively impacted Metro’s mission of providing emergency services to the public by posting her racial slur on Facebook, which could be viewed by co-workers and the public in a manner that indicated she was Metro’s employee.
Further, this case illustrates that the employer should investigate and decide disciplinary action based on the particular circumstances of each case, including the specific social media statement. For example, the Court emphasized the severe inflammatory effect of the particular racial slur Bennett used against African Americans in this instance. Thus, the type of statement made and how severe its effects might be on other employees may be a consideration. Additionally, the Court indicated that Metro’s argument for terminating Bennett would have been weaker if her social media post was made privately or did not indicate that she worked for Metro. When determining the appropriate level of disciplinary action, the employer may also consider the willingness of the speaker to correct the problem and mend relationships with co-workers. For example, Metro was found to have rightfully terminated Bennett because she initially refused to acknowledge any wrongdoing related to her racial slur such that management was concerned she may repeat the behavior. She also failed to quickly apologize to fellow workers, further hurting relationships with her co-workers and impairing the trust that those employees needed in each other to perform their emergency dispatch duties.
 Bennett v. Metro. Gov’t of Nashville & Davidson Cty., No. 19-5818, 2020 U.S. App. LEXIS 31701 (6th Cir. Oct. 6, 2020), rehearing denied end banc by Bennett v. Metro. Gov’t of Nashville & Davidson Cty., No. 19-5818, 2020 U.S. App. LEXIS 35261 (6th Cir. Nov. 6, 2020). This opinion can be found at https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0324p-06.pdf. The United States Supreme Court determined in Pickering that the analysis of public employee speech rights must strike a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734 (1968).