Free Enterprise - The FindLaw Small Business Law Blog

Can You Fire an Employee for Flipping Off the President?

By now you've probably seen the infamous photo of Juli Briskman, bicycling in Virginia, casually flipping the bird to President Donald Trump's motorcade as it passed by. "He was passing by and my blood just started to boil," Briskman said after the photo went viral. "I'm thinking, DACA recipients are getting kicked out. He pulled ads for open enrollment in Obamacare. Only one-third of Puerto Rico has power. I'm thinking, he's at the damn golf course again."

That one blood-boiling moment cost Briskman her job, though, when her bosses at government contractor Akima LLC fired her days after the photo made the rounds. Was her firing legal?

Presidential Policy

"They said, 'We're separating from you,'" Briskman told Huffington Post. "Basically, you cannot have 'lewd' or 'obscene' things in your social media. So they were calling flipping him off 'obscene.'" (Briskman has been using the photo as her Twitter and Facebook profile picture.) Certainly, violating an existing social media policy could be legal grounds for termination. Employees have been fired before for tweeting the wrong thing or otherwise finding themselves at the center of a social media scandal.

But employers should be careful about applying any social media policy equally to all employees, something that Briskman does not believe happened in her case. The former marketing and communications employee claims a male colleague was merely reprimanded for calling someone "a f***ing Libtard a**hole" on his Facebook page that featured Akima LLC as his cover photo, and was allowed to delete the post and keep his job.

First Amendment and At-Will Employment

Virginia is an at-will employment state, meaning that an employee can be fired for any reason or no reason at all. And although there are some prohibited reasons for firing even at-will employees, political speech is not one of them. "Even something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees," the Supreme Court has held, so employees for government contractors worried about how photos of staff members saluting the President with a middle finger will affect their business are unlikely to be protected on free speech grounds.

To make sure you've got a clear and concise social media policy for your employees (and that it is fairly enforced) talk to an experienced employment law attorney.

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