What do Clowns, Freedom of Speech and Facebook have in common?

by Michael Haberman on November 5, 2013 · 5 comments


 

I wrote about this topic just last week, but came across a situation that turns out to be a perfect example of my post on protected speech. Here is what clowns, freedom of speech and Facebook have in common.

Swearing at the boss may get you tossed and pleading free speech won't protect you.

Swearing at the boss may get you tossed and pleading free speech won’t protect you.

The situation

Attorney Lee Tankle, of McNees Wallace & Nurick LLC, described in his article the perfect demonstration of what I wrote about. Tankle tells the story of a Pennsylvania man who was a bit upset with his boss during his performance evaluation. He called his boss a “clown”, actually he called the boss a “F***king clown” and said the evaluation process was a joke. Now many may agree with this gentleman that many performance evaluations are a joke, his boss was not too happy with being called an “effen” clown. He promptly terminated the employee.

The employee filed for unemployment but was denied, appealed the denial and was denied again. The employee then files suit to have the finding overturned. It didn’t work.

His argument

The ex-employee had two arguments. His first was that all companies and managers should expect that situations may get heated and that some profanity may fly during the course of “conversation.” The court said “NO.” In fact their exact words were:

In examining the context in which Claimant uttered the profanity towards his supervisor, that is, during a meeting to discuss a performance evaluation with which he disagreed, we must also conclude, as did the Board, that Claimant’s language was insulting and fell below the standards of behavior Employer reasonably expected of him.3 Directed, as it was, toward his supervisor without provocation, Claimant’s actions constituted willful misconduct under Section 402(e) of the Law.

His second argument was that he was entitled to express his opinion under the First Amendment right to free speech. If you read my post Is a LIKE on Facebook Protected Speech? you know that right does not exist in this situation. Free speech is a right reserved for your interaction with the government not your interaction with a private employer. Thus he lost on both counts and was denied unemployment.

His mistake

You may be wondering how I am working Facebook into this conversation. The employee’s mistake was that he did not express his “f***ing clown” statement on Facebook where he might have gotten other employees to agree with him. If he had done that then he might have had some protection under Section 7 of the National Labor Relations Act for engaging in “protected concerted activity.” We know the NLRB has already passed on such behavior. He might have been eligible for reinstatement and back pay. But he let his temper get the best of him and he mouthed off right there. Lesson learned.


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{ 3 comments… read them below or add one }

Greg Morris November 6, 2013 at 8:42 am

Interesting and troubling case…

Reply

Bibian November 15, 2013 at 9:03 am

I do recall an article you posted sometime ago about a superior officer that was sacked for a comment she posted on social media about her subordinates that lied about absenting from work while they were at a party. One of the subordinates was bold enough to take up the case and the superior was sacked.
So why was the rights of this superior not protected as your said if the words in this case were on facebook the employee would have gotten awaywith his action.
Please enlighten me maybe l am mixing things up.
Thanks

Reply

Michael Haberman November 15, 2013 at 9:10 am

Bibian:
Thanks for your question. Under the National Labor Relations Act supervisors are not covered. The cases where people have been protected from comments made on Facebook were in situations where an employee made a comment about work and a coworker agreed with that comment. They were in engaging in “protected concerted activity” as defined by the National Labor Relations Act. Since supervisors are not covered by that law they do not have the same protection and thus can be fired.

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