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In Carr v. Commonwealth of Pennsylvania et al., No. 3 MAP 2019 (May 19, 2020), the Pennsylvania (“PA”) Supreme Court, upheld the termination of an employee who posted an offensive Facebook post. The decision resulted from an appeal by the PA Department of Transportation (“PaDOT”) after the lower court reinstated the employee to her job.

The case involved a PaDOT roadway programs technician who was serving an introductory 180-day probationary period. While off-duty and at home, the employee used her personal Facebook account to post a “rant” in a Facebook group “Creeps and Peeps” The “rant” stated as follows: “can we acknowledge the horrible school bus drivers?  I’m in PA almost on the NY border…and they are [sic] hella scary. Daily I get run off the berm of our completely wide enough road and today one asked me to t-bone it. I end this rant saying I don’t give a flying shit about those babies and I will gladly smash into a school bus.”

Members of the Facebook group sent screenshots of the interactions to the PaDOT’s Facebook page expressing concern with the employee’s statements. Following a meeting, opportunity to defend, and suspension pending investigation, PaDOT terminated the employee’s employment for inappropriate behavior.  

The employee sued the agency for discrimination and violation of her First Amendment free speech rights. The employee initially was rebuffed with a determination by the Civil Service Commission that she was not treated differently from any other employee who made disparaging remarks and brought disrepute to the agency and its mission to ensure the safety of the travelling public. The employee appealed this determination to the Commonwealth Court.

Unlike the Civil Service Commission, the Commonwealth Court concluded, as relevant, that even though the employee’s posts were “reprehensible”, they were addressed to matters of public concern, i.e., school bus drivers, and did not lose state constitutional protection as purely private speech. In addition, the Commonwealth Court concluded the PaDOT did not have any countervailing interests to support an adequate justification for termination in a matter of public interest.  .

Ultimately, the Pennsylvania Supreme Court upheld the termination, reasoning in critical part that, "even if Carr never intended to drive her vehicle into a school bus, if her words alone could erode the public's trust in her employer's mission, the department acted reasonably in terminating her employment," and that, “few statements could be more contrary to the department's mission of providing safe roadways for the traveling public…”

While the facts of this case address issues of state constitutional claims which may not directly impact private employers, the parallels for private employers are apparent. Private employers may not be hampered in their actions by state constitutions, but most private employers are covered by the National Labor Relations Act (“NLRA”). 

Negative and disparaging remarks made about a company or critical of its operations continue to be subject to the NLRA’s protection, even when the company is not a public employer. Social media policies cannot penalize employees for bashing their employer’s wages, hours, and working conditions with other employees who they “friend”, as doing so is considered “protected concerted activity”. See, e.g., NLRB v. Pier Sixty, 855 F.3d 115 (2d Cir. 2017), where the court upheld an NLRB decision that the employer unlawfully terminated the employee for a Facebook post.

In addition to federal law, a number of states have passed protections for employees who engage in lawful off-duty conduct, however distasteful or obnoxious. 

In short, while the Carr decision does not apply to private employers, and while private employers need to remain mindful of the NLRA and other laws that protect off-duty employee conduct, the Carr decision confirms that there are limits that can be crossed in social media posts, especially when they disregard common civility standards and are injurious to the interests of their employer.