Recent presidential politics, combined with employee social media use, create a potential minefield for private-sector employers. In many respects, the law in this area still is in its nascent stages, but developments are rapidly occurring.
Infamous Bicyclist’s Lawsuit
Enter Juli Briskman. She’s the bicyclist now famous for giving President Donald Trump the middle finger as his motorcade passed her in Sterling last fall. She was photographed from behind by a member of the presidential press corps, and within hours, the photo was tweeted out by a Voice of America reporter. The next day, Briskman identified herself as the bicyclist and updated her Facebook and Twitter pages with the photo. The following Monday, the photo was discussed on the Tonight Show with Jimmy Fallon. Briskman claims that on Tuesday, her employer, Akima LLC—a Herndon government contractor—forced her to resign.
In April 2018, Briskman filed a wrongful termination lawsuit against Akima in Fairfax County Circuit Court. She alleges that Akima violated Virginia public policy favoring free speech because it based its decision on two stated concerns: first, that the photo would have a negative impact on its ability to obtain government contracts and, second, that the photo “amounted to obscene content on her Facebook page,” in violation of its social media policy.
Public-Policy Exception to Employment at Will
If you were hoping that the eventual disposition of Briskman’s case might help advance employment law in the age of social media, disappointment likely awaits. Virginia courts have long recognized the common-law doctrine of at-will employment. When there is no contractual agreement stating otherwise, a private-sector employer like Akima may legally terminate an employee for any reason or no reason at all.
Like all rules, the employment-at-will rule is not absolute. There are limited public-policy exceptions to the at-will doctrine, including:
- When the termination interferes with an employee’s statutorily created right;
- When the employer violates a policy against discrimination explicitly expressed in a statute and the employee is clearly a member of the protected class (e.g., age, race, sex, or disability discrimination claims); or
- When the termination is based on the employee’s refusal to engage in a criminal act.
Violation of Public Policy?
In her lawsuit, Briskman goes to great lengths to try to fall within a public-policy exception. She explains how her Facebook and Twitter pages contained no link to Akima. She states that she intentionally refrained from updating her LinkedIn profile, which lists Akima as her employer. (It’s interesting to note that Briskman was employed as a marketing analyst; we would presume she understands that a simple Google search would connect any user to her LinkedIn profile.) She also notes in her complaint that another Akima employee who made an obscene Facebook post didn’t face termination when the company was notified of his post.
Unfortunately for Briskman, those factual allegations are irrelevant to a wrongful termination claim based on an employer’s violation of public policy. On their face, they support none of the exceptions to the at-will-employment doctrine articulated by the Virginia Supreme Court. Moreover, as recently as 2016, the supreme court reaffirmed in Robinson v. Salvation Army that the exceptions will be narrowly construed.
Free-Speech Limits on Public-Sector Employers
Briskman also argues that because Akima’s actions were based on fear of government retaliation, it was acting, in essence, as a governmental entity, and she therefore has certain constitutional protections. Under this construct, she alleges that her forced resignation violated her rights to free speech under the First Amendment to the U.S. Constitution and the Virginia Constitution. Yet her reasoning fails to identify how her free-speech claim transforms Akima into a government employer. Without such a showing, she has no constitutional claim to adjudicate.
If Akima were a government employer, it would be precluded to some degree from limiting Briskman’s speech as an employee. Relying on U.S. Supreme Court holdings, the U.S. 4th Circuit Court of Appeals (whose rulings apply to all Virginia employers) recently reaffirmed in Liverman v. City of Petersburg that public employees retain First Amendment protection when their speech relates to matters of public concern. Importantly, however, the 4th Circuit said that when employees’ speech is purely personal, no protections apply.
When the speech relates to both public concerns and personal expression, courts will consider the matter in its entirety, weighing the expression of public concern with the efficiency interests of the public-sector employer. Last year, in a First Amendment retaliation lawsuit brought by firefighters in Howard County, Maryland, who were terminated based on their Facebook posts, the 4th Circuit noted that a firefighter’s “‘Like’ of [an] image depicting an elderly woman raising her middle finger [titled] ‘for you Chief’. . .’amounted to no more than an employee grievance not protected by the First Amendment.'”
If Briskman had been a public-sector employee, the issue would be whether raising her middle finger to “express her disapproval of President Trump” was in the interest of highlighting an issue of public concern. The resolution of that weighty issue will need to wait for another day—and a different lawsuit.
Barring any actions that could be perceived as discrimination based on a legally protected characteristic (e.g., race, sex, disability, or national origin), if you are a private-sector employer in Virginia, you have the right to fire an employee for any reason as long as there is no employment contract to the contrary and the termination doesn’t violate one of the three public-policy exceptions. Therefore, Briskman’s case is unlikely to create new legal guideposts for private-sector employers. Nevertheless, the outcome of her lawsuit will be eagerly anticipated based solely on the attention and discussion garnered by her photo. In fact, she says that the publicity surrounding her firing has already resulted in a number of job offers.
Amy Heerink is an attorney in the Alexandria office of O’Hagan Meyer. She can be reached firstname.lastname@example.org.