Prior to the advent of social media, employers were generally comfortable drawing a bright line between what employees did on their own time and workplace misconduct. Those bygone times, however, have been replaced by a modern era wherein employers are forced to apply employment laws created before the personal computer to their workforce in an increasingly virtual world. The COVID-19 pandemic has dramatically accelerated this transition to a virtual workplace. In this installment of #No Filter, we explore sample cases involving public employers and their decisions to take disciplinary action following objectionable social media posts.
Carr v. Dep’t of Transportation, 230 A.3d 1075 (Pa. 2020).
Plaintiff was a newly hired Roadway Programs Technician within her 180-day probationary period for the Pennsylvania Department of Transportation. While off-duty and at home, she posted to a closed Facebook group titled “Creeps of Peeps” the following:
“Rant: can we acknowledge the horrible school bus drivers? I’m in PA almost on the NY border [sic] bear [sic] Erie and they are hella scary. Daily I get ran [sic] off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don’t give a flying [****] about those babies and I will gladly smash into a school bus[.]” Carr v. Dep’t of Transportation, 230 A.3d 1075, 1077 (Pa. 2020) (emphasis added)
Co-workers within the closed Facebook group reported the comments to the employer, which terminated her employment for “inappropriate behavior.” Id. at 1078. Because the Plaintiff worked for a public employer, [1] the two-part inquiry originally established by the United States Supreme Court “requires a determination of whether the speech involves a matter of public concern.” Id. at 1079. Speech implicates a “public concern” if its content or context addresses a matter of political, social, or other area of interest to the community. Id. If the speech encompasses a matter of “public concern,” the second inquiry examines “whether the speech has a potential to adversely affect the government employer’s operation.” Id.
The Pennsylvania Supreme Court found although the employee’s speech may have touched on a matter of “public concern,” it was “essentially a rant based on her personal observation of a particular bus driver rather than an explanation of safety concerns that she became aware of as a Department employee.” Id. at 1090. The high court went on to note that “[e]ven if...
