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Oct 31, 2014

By Eric B. Meyer

Earlier this week I addressed how what an employee says on Facebook can mean losing a job offer.

In that case, the National Labor Relations Board determined that insubordination on Facebook is still insubordination and, thus, grounds for termination.

Well, threats of violence on Facebook are grounds for termination, too.

Disabled, or not?

In Ames v. Ohio Department of Rehabilitation and Correction, the plaintiff worked as a parole officer. On Facebook, while still employed for ODRC, she posted the following:

I’ll gimp into work tomorrow. I guess I could just shoot them all…lol!” She also stated, “Yo! Thanks neighbor. I’ll gimp into work tomorrow. I guess I could just shoot them all…ARE YOU KIDDING ME? ‘MEANING I CAN’T CHASE THEM!’ OH MY GOD! YOU PEOPLE REALLY DO NEED A LIFE! LIKE NO LAW ENFORCEMENT OFFICER ‘EVER’ MADE THAT TYPE OF COMMENT. YOU MAKE ME LAUGH OUT LOUD!”

When, the ODRC learned about the post, it required the plaintiff to take an Independent Medical Examination (IME). The plaintiff would later be required to take a second and third IME, and was then placed on medical leave. While on leave, the plaintiff threatened another co-worker and was fired as a result.

Why the employee sued

The plaintiff later sued, alleging unlawful employment discrimination on the basis of a perceived disability. Essentially, she claimed that:

  1. Ohio Department of Rehabilitation and Correction (ORDC) perceived her as disabled;
  2. The ODRC took an adverse employment action because of her perceived disability; and,
  3. She can safely and substantially perform the essential functions of the position in question.

Recognizing that sending an employee for an IME is not tantamount to perceiving her as disabled, the Court found no additional evidence to establish that ODRC perceived the plaintiff as disabled.

No special privilege for speech on Facebook

Further, ODRC had a perfectly legitimate reason for firing the plaintiff:

Her termination came with a backdrop of a prior incident of posting an inappropriate message on social media, a history of ill will, charges and counter charges against Brady, and finally posting a vulgar, threatening statement toward a co-worker under her supervision.”

Remember folks, there is no special privilege that attaches to speech on Facebook, especially when it comes to threats of violence. Take all such threats seriously and respond accordingly.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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