When a government contractor fired an employee over a Facebook photo that showed her giving the middle finger to President Trump, it probably didn’t expect such a widespread negative reaction from the public. But that’s just what happened to Akima LLC.
Here’s the backstory on this unique situation which has plenty of implications for HR pros struggling to navigate the uncharted waters of protected free speech in the social media age.
During her tenure as a marketing specialist at Akima, Juli Briskman was riding her bike in Streling, VA, when President Trump’s motorcade passed by. Briskman said she became extremely frustrated because she remembered the president had been golfing and expressed her frustration via the famous one-fingered salute.
In Briskman’s own words:
“He [Trump] was passing by and my blood just started to boil. I’m thinking, Daca recipient 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. I flipped off the motorcade a number of times.”
A White House photographer captured the photo and the image quickly went viral.
Brickman eventually informed Akima that she was the woman in the photo and was fired because the company told her the photo violated the company’s social media policy and could hurt the company’s reputation as a government contractor.
Brickman didn’t fight the decision, but she did point out some problems she had with the termination — she didn’t mention her employer in the post, the incident happened on her private time and one of her co-worker’s had posted a profane insult about someone on Facebook but had been able to keep his job after deleting the post and being disciplined.
So did Akima have legal grounds to fire Brickman? And should it have?
The viral effect
The answer to the first question is fairly clear. Because Virginia is an “at will” state (aka, private employers can fire people for any reason they see fit), terminating an employee for a policy violation doesn’t put the company in any legal jeopardy.
But the answer to the latter question is a lot less clear.
A recent Fast Company article highlighted the some unexpected problems with knee-jerk decisions regarding employees’ social media posts.
In Akima’s case, the company is being hit with an onslaught of negative social media comments on its Facebook page for the firing of Briskman. Now the company has to decide if the termination was worth the bad publicity.
Plus, there’s the consistency issue. Social media policies are only effective if they’re enforced consistently. Briskman was able to cite a clear example of an employee who wasn’t fired for social media behavior that was similar to her own. And those inconsistencies often lead to lawsuits for employers.
Employment attorneys like Philippe Weiss, managing director of Seyfarth Shaw At Work, urge employers to be cautious when it comes to decisions regarding employees’ social media behavior. Weiss says, “from a management perspective, you want to be very cautious,” and put a lot of effort into getting employees to accept and understand why social media policies are necessary in the first place.