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Speech Protections in the Internet Age

You've probably seen the photo by now—a bicyclist flips her middle finger at the Trump motorcade passing by. The image (above), shot by a reporter traveling with the president, rocketed across the web and late-night television.

Juli Briskman, a marketing analyst at the Virginia-based federal contractor Akima LLC, identified herself in the photo—posting it on her Twitter and Facebook pages. Akima days later fired her, saying Briskman violated the company's social media policy.

Briskman's case—she sued in Virginia court for wrongful termination—raised a host of issues that companies are grappling with ever more in the internet age, and amid the Trump administration, especially. Briskman argued she was fired not for any policy violation but rather because Akima feared federal agencies would retaliate against the company—and cost it lucrative government contracts.

If you missed my first-on-the-web report last week, check it out here: A Virginia judge ruled against Briskman, and now her lawyers are weighing their options to amend the complaint or perhaps appeal the ruling. A team from IslerDare represents Akima, a big contractor with lots of work in the defense and health care arenas. The Geller Law Group and Protect Democracy represent Briskman.

At its core, Briskman's case puts a new focus on the clash over workplace speech rights. As the Virginia judge noted last week, and as IslerDare's attorneys argued, private employers have wide latitude to fire an employee for offensive speech. When it comes to employment, some First Amendment rights are checked at the door—and extend beyond the workplace. Briskman was on her own time, on a Saturday, when she flipped off Trump's motorcade.

Employers across industries are grappling with the scope of speech protections accorded to workers. NFL players taking a knee during the national anthem. The ex-Google engineer who wrote a memo that in part said women aren't as fit as men for careers in tech. Workers who show up at a white-supremacy rally.

“There is certainly gray area here. If you look at the case of flipping off the president or people who participated in the Charlottesville riot, these don't relate to the workplace but might make others feel uncomfortable. There's tension there,” Paul Hastings partner Felicia Davis told me recently. “It's legal activity and not at work, but [employers] can use that to terminate the employment relationship.”

Davis says it's a case by case decision for a company and that she advises companies to wade carefully when using social media and off-duty conduct to terminate an employee. The employer need to consider Section 7 rights, as well as discrimination laws.

“It's an evolving area of law. And, frankly, the technology usually outpaces the legal process. By the time we have rulings on social media, we'll be onto the next technological advance,” Davis says. “You can apply the same principles to this new technology. It is very challenging.”

Fisher Phillips partner Wendy McGuire Coats says she's also tracking the tension between private conduct, social media and employer-employee rights. The intersection between social media and the workplace is changing the traditional calculus about what is protected speech. “Everyone is walking around with a video camera. Something that once was purely private speech now has 1.5 million views,” Coats says.

Social media issues present dilemmas beyond speech rights but also touch hiring and applicant screening. “A lot of things are intersecting: free speech, labor laws and what is socially acceptable. There are a lot of unanswered legal questions.”

I'm interested in exploring these ideas more—what are you hearing from clients, and what sort of guidance are you offering. Drop a line or a note!

I'm Erin Mulvaney in Washington, covering labor and employment from the Swamp to Silicon Valley. Follow this weekly newsletter for the latest analysis and happenings. If you have a story idea, feedback or just want to say hi, I'm at [email protected] and on Twitter @erinmulvaney.

Who Got the Work

>> A San Francisco Superior Court judge on July 3 rejected class certification in a gender discrimination case against Twitter Inc. brought by former engineer Tina Huang. Read the ruling from Judge Mary E. Wiss here. “This court concludes that plaintiff failed to satisfy the commonality requirement necessary to certify the proposed class,” Wiss wrote. Bloomberg has more on the ruling. Lynne Hermle of Orrick, Herrington & Sutcliffe, lead counsel for Twitter, had argued in May that Huang, represented by the firm Lohr Ripamonti & Segaric, couldn't show the company's promotion practices caused a disproportionate number of women to be passed over for promotions, according to a report from my colleague Ross Todd.

>> The University of Texas agreed to settle a race and gender discrimination lawsuit filed by former women's track coach Bev Kearney, after a years-long dispute over her claim she was treated differently than her white, male counterpart who also had a relationship with a student athlete. Kearney was represented by Jody Mask of Mask & Guerrero and Derek Howard of Howard and Koblean. The university was represented by the Austin firm McGinnis Lochridge.

>> Walmart Stores Inc. settled a discrimination lawsuit filed by transgender worker in North Carolina who claimed she was fired after complaining about harassment. The terms of the settlement were not disclosed and the company did not admit wrongdoing. Charlene Bost was represented by Daniel Lyon of Elliot Morgan Parsonage and Donna Levinsohn of the Transgender Legal Defense & Education Fund. Molly Mitchell Shah and Stephen Dellinger of Littler Mendelson represented Walmart.

>> LA Louisanne Inc., a Los Angeles restaurant and jazz club, agreed to pay $82,500 to settle a pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission. The restaurant also agreed to other terms, including retaining an external EEOC monitor and revising the companies discrimination and harassment policies. Adriana Cara of FisherBroyles LLP represented the restaurant. EEOC attorneys, led by Anna Park in Los Angeles, represented the worker.

>> The EEOC is suing Halliburton Energy Services Inc. in Dallas federal district court for allegedly subjecting Muslim employees to a hostile work environment. K&L Gates represents Halliburton. EEOC attorneys Robert Canino, Suzanne Anderson and Joel Clark represent the agency.

Around the Water Cooler…

• Warren Postman, formerly chief counsel for appellate litigation at the U.S. Chamber Litigation Center, has joined the Washington office of the plaintiff-side litigation boutique Keller Lenkner as partner. Postman, a former Jones Day associate and clerk to Justice David Souter, was involved in some of the big labor cases on appeal, including the fight against the Seattle law letting Uber drivers unionize. [NLJ]
• Three takeaways from employment attorneys on the sweeping ruling in Janus v. AFSCME. [NLJ]
• Meanwhile, a Koch Brothers-linked group is funding a campaign to accelerate the demise of the labor movement, following the Janus decision. [Bloomberg]
• Studies released by the EEOC and the Justice Department found that in federal public safety and law enforcement occupations, men were not aware of the barriers present for their female counterparts. [Washington Post]
• Jackson Lewis leaders say the firm will expand in several states, boosting capabilities in health care and employee benefits law. [Law 360]
• A California federal judge could impose monetary sanctions on EEOC attorneys for not disclosing that two men who filed race bias charges against Marquez Brothers International Inc. had died before the agency sued the food distributor. [Reuters]

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