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.
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.
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.
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.