Unfair Dismissal

You don’t need to agree with this woman’s actions or political beliefs to think she’s been harshly treated here:

In a Saturday interview with HuffPost, Briskman, a 50-year-old mother of two, said she was stunned that someone had taken a picture of her giving Trump the middle finger.
As the photo circulated online, Briskman decided to tell Akima’s HR department what was happening when she went to work on Monday. By Tuesday, her bosses called her into a meeting and said she had violated the company’s social media policy by using the photo as her profile picture on Twitter and Facebook.

Management can stipulate what you put on social media, eh?

“They said, ‘We’re separating from you,‘” said Briskman. “Basically, you cannot have ‘lewd’ or ‘obscene’ things in your social media. So they were calling flipping him off ‘obscene.’”

Would this apply to a gay man at a Pride event?

Briskman, who worked in marketing and communications at Akima for just over six months, said she emphasized to the executives that she wasn’t on the job when the incident happened and that her social media pages don’t mention her employer. They told her that because Akima was a government contractor, the photo could hurt their business, she said.

Was she the marketing and communications director, the public face of the business? If not, then what’s the problem? Perhaps a picture of her going hunting might hurt their business, or a pic of her at a political rally, or at a gay club? What’s this got to do with her employer?

Virginia is an employment-at-will state, meaning employers can fire people anytime and for any reason.

Still, I expect she has grounds to sue under First Amendment rights here. Worth watching, I think. If she does, I hope she wins.

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42 thoughts on “Unfair Dismissal

  1. What first amendment right? The American notion of free speech means only that you are (purportedly) free of govt legislation to restrict your speech. That’s why Americans have always been rather mealy-mouthed: lots of people could and did give them hell for speaking freely. I’m old enough to remember when Brits and Aussies, for example, exercised conspicuously freer speech than Yanks, just as a matter of habit.

    But now we have imported the American idea of PC censorship of speech. Alas, alack.

  2. “Management can stipulate what you put on social media, eh?”

    Yes. In fact, don’t you have personal experience of this?

    Public behaviour or statements that bring your employer into disrepute? Pretty common reason to get fired. The photo is out there, whether she has published it or not.

    And as a government contractor – oh the irony – biting the hand that feeds.

  3. In fact, don’t you have personal experience of this?

    Not exactly. In my case, what I posted was *specifically allowed* by the company code of conduct, and was certainly protected under Australian law. I simply chose not to challenge it.

    Public behaviour or statements that bring your employer into disrepute?

    Yes, of course, we all have that in our contracts. I suppose what constitutes “bringing an employer into disrepute” depends on the jurisdiction and the judge/tribunal, but it is not normally left to management to decide it is “anything we don’t like”. Perhaps it is becoming so, which only reinforces my view that big organisations are on the path to their own irrelevance.

    And as a government contractor – oh the irony – biting the hand that feeds.

    Agreed, there is a certain amount of schadenfreude here. But still, I don’t like it.

  4. What first amendment right?

    The right to own a firearm and murder your boss for being an ass. It’s called Going Postal, I believe.

  5. Of course big corporations are on a path to their own irrelevance. I believe a Mr. Schumpeter had something to say about that.
    As they get bigger and as they get older the management looses sight of their purpose.

  6. Virginia is an employment-at-will state, meaning employers can fire people anytime and for any reason.

    I wouldn’t have this any other way.

    Freedom of association is an inalienable right, just like freedom of speech, religion and the press.

    She’s a contractor. If she wanted to restrict the terms under which she could be fired, she could have had that written into her contract.

    People get fired for not doing anything wrong all the time; it’s called “layoffs”. I’ve worked for a company where a senior executive engaged in corruption got the company such bad publicity that they lost business and had to downsize. Forty people who did nothing wrong lost their jobs. He was sued by the shareholders, but none of that reached the employees.

  7. People get fired for not doing anything wrong all the time

    Except the managerial classes seem strangely immune, and the senior management have a nasty habit of walking away with a bucket-load of money.

    She’s a contractor. If she wanted to restrict the terms under which she could be fired, she could have had that written into her contract.

    True, but I still don’t like it. I didn’t like it when the rodeo clown got fired for wearing an Obama mask, either.

  8. As always I am not entirely sure why some commenters in this kingdom ( and others) are so gleeful to give bosses arbitrary power and enjoy that right being exercised.

    Are some of you company directors who like the idea of fucking over staff just because?

  9. The First Amendment just says Congress can’t pass laws restricting freedom of speech. It certainly doesn’t say that your employer can’t fire you for posting dumb stuff on social media. Lots of people have been fired for exactly that, it’s not rare at all.

    Whether employers *should* be legally restricted from firing you for posting dumb stuff on social media is another matter entirely. On one hand, it would be nice if bosses were a little more understanding and not so quick to dump people who screw up. But I’m not sure that such an understanding attitude can be legislated into existence.

  10. Two things worth noting:

    1) “The photo is out there, whether she has published it or not.”
    Using it as your profile pic rather different though…

    2) We should also note that the company is making a spectacular cock-up of this though. Streisand effect anyone?

  11. Whether employers *should* be legally restricted from firing you for posting dumb stuff on social media is another matter entirely.

    Yeah, it is. Much as though part of me likes the idea of being able to boot idiots from my employ willy-nilly, I’m not sure I’d like a de facto situation whereby “voting Conservative” or “voting Republican” is enough to get you fired without warning, especially if this extends to government jobs or companies with “a connection” to the government.

  12. Irrespective of laws and rights, though-

    Don’t we all seek to avoid putting ourselves in a position where work cares what we write online?

    It strikes me that hoping laws protect me from an asshole boss or malicious HR team is trusting to the grace of god and so on. I’d prefer to be a little more cautious.

    Square isn’t actually my surname, y’know?

  13. “Don’t we all seek to avoid putting ourselves in a position where work cares what we write online?”

    Sure. It’s called self-employment.

    In any business that depends upon people making a choice between your company and your many competitors, you’re always going to try to avoid offending your customers.

    When you’re a government contractor – with, essentially, ONE customer – it’s even more important. Even if it is the woman’s personal internet use, there is a possibility that it could be tagged to the business.

    This woman, an employee of a government contractor who chose the picture of herself giving Trump the finger as her profile picture, is a ditz.

    (ditz: [dits]: NOUN: a scatterbrained person.)

  14. Don’t we all seek to avoid putting ourselves in a position where work cares what we write online?

    Who’s we, paleface? 🙂

  15. I am inclined to agree with your general stance over this, but this is a Huffpo story and I would like to see a more reliable source for the whole story.

  16. I’m assuming that she found the picture of herself online and then adopted it as her profile image on social media.

    This isn’t all that clever.

    I’m further assuming that she came to the conclusion that the picture was a bit near the knuckle and so she advised her personnel people accordingly without first changing her profile pic.

    This is really quite stupid.

    @John² : My surname IS Bison!

  17. She also had the right to leave her employment for any reason which makes it quite an equitable arrangement. The employer is not obliged to continue to give her money if they don’t want to and she is not obliged to continue to take if she doesn’t want to. Trump has nothing to do with it except that its just an another lame anti-Trump beat up.

    Those demanding all these statutory rights be implemented, have always been around and are more than likely way below average in most areas.

  18. It’s all a bit “storm in a teacup”, but she does come across as a bit thick in the usual lefty way – “1/3 of Puerto Rico is without power and Trump is on the golf course” – as if the President should be putting in a shift repairing transmission lines.

  19. Kevin..when the Deep-water well was bursting and Obama was busy blaming the Brits, John Browne got blasted for taking a yachting trip.As if they needed him in the submersible

  20. The left wouldn’t and doesn’t hesitate for even half a second to fire someone that upsets its notions. It’s good to see them getting a little bit of their own medicine.

  21. Are some of you company directors who like the idea of fucking over staff just because?

    Some of us understand that no one is entitled to a job, and that termination clauses in a contract are a thing which has been around for a century.

    This reminds me of a FOAF who works as an instructor at a local university. He ranted at me once when I pointed out that no one who works in an office needs a union. His argument was that without a union, he wouldn’t be able to get the respectable salary he does for teaching ESL students.

    So, basically, he needs a union because he’s really, really bad at a core part of his job (negotiating his salary).

    If your employment is so precarious that you can be easily fired without causing your employer undue hardship, you need to get better at your job. And in the mean time, keep your private life private.

  22. ““Management can stipulate what you put on social media, eh?””

    Yup. Not a quaint US custom either, ask any UK civil servant. Such a post would break the Civil Service Code and subject you to an interview without coffee.

  23. I find it interesting how often Americans allow company’s to screw people over. For instance Youtube would be in trouble in the UK for capricious and arbitrary conduct but Americans seem fine with it. How you have a contract who’s terms are unenforceable by one of the parties is beyond me.

    The same here maybe. You see, her employer is a government contractor, and that was the President of the United States to whom she gave the finger. She flipped off her client, if nothing else it’s shows very poor judgment, she is a fifty year old parent.

    When employers see their employees’ photo showing vast amounts disrespect to the most well known and powerful man in the world, their most important client, getting involved in a controversy, they get a bit nervous, because that’s their business that could be impacted.

  24. Not mentioned yet – the photo was snapped by the official White House photographer, as the motorcade overtook her on her bicycle.

    Which puts a whole new angle on it, I think.

  25. For instance Youtube would be in trouble in the UK for capricious and arbitrary conduct but Americans seem fine with it.

    You’re talking about a country that has at various points in its history made it mandatory for everyone to wear hats so as to prop up the wool trade.

    Government interference in private business is a double-edged sword.

  26. Yup. Not a quaint US custom either, ask any UK civil servant.

    This clearly doesn’t apply to teachers or NHS workers.

  27. Daniel Ream its not interference its a interpretation of contracts through the courts, Australia, Canada and NZ are all the same. The US originally was the same.

    If one enters a contract in these countries it cannot just be changed by the other party in a capricious and arbitrary manner. Because if one party can act in that fashion there could never be a contract to begin with because there can not have been an agreement to the terms (offer, acceptance and exchange being the basis of a contract). There must be a process and some type of notification or warning about necessary changes and they cannot be retrospective.

    It seems to me that US commercial law should be more developed, it isn’t be legislators favour intervention rather than allow common law develop. It also has problems because judges are appointed based on there constitutional expertise, yet that is a minority of their case load. The means the system favors the authors of documents that are ultimately meaningless.

  28. Square isn’t actually my surname, y’know?

    You were Bastard Square for a while. Was that at least your real first name?

  29. Reminds me how important the independence of having “stuff you” levels of savings/investments to fall back on is.

    Yup! Especially if you’re an outspoken blogger. 😉

  30. We should also note that the company is making a spectacular cock-up of this though. Streisand effect anyone?

    Yeah, I’m hoping this bites their HR department on the arse big-time.

  31. Off topic but I liked the design addition, Tim!

    Thanks! I’ll write a quick post on that soon.

  32. “Not a quaint US custom either, ask any UK civil servant”

    The point is though that the employer in this instance does not need any justification whatsoever to terminate, they may have just been nice to her by telling her when was a tool but they didn’t need to even do that. Unless there was some discrimination here which on face value there wasn’t it was a completely lawful termination.

  33. The Civil Service Code applies to central government employees – permanent or contract. The MoD even tried to restrictive social media rules
    once (the “Simon Says” campaign of many years ago.)

    Teachers are employed, usually, by local authorities. The police have their own rules – and we’ve seen police bloggers doxed, sacked or had to remove their blogs because their rules are reasonably strict.

    I have no idea about the NHS (although the GMC does have rules about doctors blogging.)

  34. Thanks for the clarification, SE.

    and we’ve seen police bloggers doxed, sacked or had to remove their blogs because their rules are reasonably strict.

    We have, but usually when they are exposing police incompetence. They remain free to complain endlessly about the Tories on Twitter.

  35. The point is though that the employer in this instance does not need any justification whatsoever to terminate, they may have just been nice to her by telling her when was a tool but they didn’t need to even do that.

    Indeed, and they’d have been better off doing that.

  36. @ TimN
    “Square isn’t actually my surname, y’know?
    You were Bastard Square for a while. Was that at least your real first name?”

    Nope- just what my wife calls me. And my colleagues. And my Dad.

    And on the broader point of nommes des plumes (is that how les Francias gammar? Je ne parlais pas.)- I cannot think of a reason why I’d go on record with my real one- it’s a quantifiable risk with no practical upside for me.

    I’m assuming the French labour laws you note here upon occasion offer some level of protection.

  37. I cannot think of a reason why I’d go on record with my real one- it’s a quantifiable risk with no practical upside for me.

    That is almost always the case for a commenter. If you ran a blog though, it might be different.

    I’m assuming the French labour laws you note here upon occasion offer some level of protection.

    That, and the company culture I think: separation of work and private life, including (especially?) political views is taken quite seriously in France.

  38. My current contract of employment has an explicit clause about postings on social media anything that could prove detrimental to my employer – fairly reasonable given the competitive nature of sportswear manufacture.

    In my opinion this woman, regardless of her political views, was disrespectful to the Office of The President. Sure, she may not like Trump but so what? It doesn’t matter which person holds the office there is a certain level of respect that the Office commands. If I were to meet a sitting President or Prime Minister (highly unlikely), regardless of my personal opinion of them I would act with the decorum that such a meeting would expect. I don’t like Theresa May much but would never dream of flipping her the middle finger if she were to drive/walk past me.

    This woman brought this on herself; sympathy for her plight = zero.

  39. If one enters a contract in these countries it cannot just be changed by the other party in a capricious and arbitrary manner.

    And it wasn’t. The problem was this woman, like the ESL instructor, sucks at a core function of her job – negotiating a contract. I sure as hell wouldn’t sign an employment contract that allowed an employer to terminate the contract for “conduct unbecoming”. I haven’t signed contracts that contain the phrase “…and other duties as assigned by supervisor”, as that’s a common dodge to avoid a constructive dismissal lawsuit.

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