Lawsuit Alleges Wrongful Termination for Making a Rude Gesture Toward a Government Official

Yellow WarblerThe U.S. Constitution limits the government’s ability to infringe on a range of rights, including the First Amendment right to free speech. In the context of New Jersey employment matters, this usually places far more limits on public employers than private employers. As a general rule, a private employer does not infringe on an employee’s freedom of speech if they discipline or fire that employee because of statements they have made. Since public employers are part of the government, they have less leeway with regard to employee speech. A lawsuit filed earlier this year, however, alleges that a private employer violated the plaintiff’s constitutional rights by firing her because of her speech. Briskman v. Akima, LLC, No. 2018-5335, complaint (Va. Cir. Ct., Fairfax Cty., Apr. 4, 2018). The plaintiff claims that the defendant fired her “out of fear of unlawful retaliation by the government for constitutionally protected speech,” id. at 8, and that this makes her termination a violation of her First Amendment rights.

Caselaw has largely established broad protections for the free speech rights of public employees with regard to their employment. According to the U.S. Supreme Court, a public employee who speaks out about “issues of public importance” cannot be subject to termination by their employer, unless their statements were “knowingly or recklessly” false. Pickering v. Board of Education, 391 U.S. 563, 574 (1968). This does not apply, however, when the employee is speaking in their official capacity as a government employee. Garcetti v. Ceballos, 547 U.S. 410 (2006).

Private employers have fewer restrictions with regard to disciplining employees, including terminating them, for statements they have made. This often applies even when the statement or statements at issue involved matters of public concern that were unrelated to the employee’s position with the employer. Some exceptions apply, such as when the speech involves activities protected by the National Labor Relations Act, 29 U.S.C. § 157, or when a state or local anti-discrimination law includes protections for “political activities,” N.Y. Lab. L. § 201-D. The Third Circuit Court of Appeals has ruled that termination for an employee’s political activities, or their refusal to participate in political activities, could violate public policy. Novosel v. Nationwide Ins. Co., 721 F. 2d 894 (3rd Cir. 1983).

The dispute in Briskman involves “speech” in the form of an expressive gesture directed at a public official. The plaintiff was employed by a government contractor in the Washington, D.C. area. While she was riding her bicycle in a suburban area of Northern Virginia, not on company time, the presidential motorcade passed by her. She states that she “extended her middle finger as an expression of disapproval of the President.” Briskman, complaint at 5. A press photographer happened to take a picture at that moment, and the picture soon went “viral” on social media.

Although the photograph does not show the plaintiff’s face, she identified herself as the person in the photo the next day. Two days after that, her employer terminated her, allegedly because “as a government contractor, [it] feared retaliation by the President or his administration.” Id. at 6. The lawsuit alleges that this violates her constitutional right to free speech.

The civil rights attorneys at the Resnick Law Group represent employees, former employees, and job applicants in state and federal matters in New Jersey and New York. To schedule a confidential consultation with a member of our team, contact us today at 973-781-1204, at 1.888.863.3423, or online.

More Blog Posts:

What Does New Jersey Retaliation Law Say About Firing Someone for Political Beliefs or Activities? The New Jersey Employment Law Firm Blog, October 27, 2017

Do Employees Who Join National Strikes Have Legal Protection Against Getting Fired? The New Jersey Employment Law Firm Blog, March 24, 2017

New York City Mayor Issues Executive Order Regarding Union Organizing, The New Jersey Employment Law Firm Blog, September 22, 2016

Photo credit: Mike’s Birds (Yellow Warbler (female). Uploaded by Magnus Manske) [CC BY-SA 2.0], via Wikimedia Commons.

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