Social media is at it again; another person has been fired for posting to Facebook. This time it is a woman, Lauri Dillman, who was employed as an administrative assistant with Whitehouse, Texas' police department, according to KYTX-TV. The post in question is a link to a Tyler Paper article about 3 constables being fired after an investigation, with Dillman's comment of "LoL."
Dillman claims that she was fired immediately after posting, according to the complaint reported by Courthouse News Service. Her lawsuit is based based on the allegation that her employer violated her First Amendment right to free speech. While this is a proper suit to bring, it would also be proper to bring a wrongful discharge suit under Texas law.
The First Amendment protects a citizen's right to speak freely without restrictions by the government. A common misconception is that these rights protect a person anywhere. However, there must be a clear connection with the prohibition to speak and a government entity. For example, if Dillman was an employee at Exxon and was fired for posting something, she would not have a civil rights case against Exxon because it is a private company that is only limited by laws against discrimination.
Also, Texas is an "at will" employment state, meaning that an employer or employee can end the employment at any time and for any reason. This means that as long as the organization isn't breaking a law when firing someone, there is no legal recourse. But in this case, Dillman could have added a wrongful discharge claim because of the Texas law covering wrongful discharge.
According to the Texas Workforce Commission, Texas law states that a person cannot be discharged for a "protected activity" that is defined as something an employee is entitled to do without fear of retaliation, which can include those rights protected by the First Amendment.
What this means is that for Dillman to be successful, she would need to meet the United States Supreme Court's test for unlawful termination based on speech. That would require Dillman to attempt to prove that her firing was a state-sponsored activity based on the fact that she worked for a government agency. Not only that, she would need to show that her speech would not have an effect on close working relationships, that her position within the agency was not critical, and that the agency's control of her speech on Facebook is improper, among other things.
There have been a growing number of firing for posting to Facebook cases, but there are not enough to say whether Lauri Dillman will be successful in hers. It will hinge on whether her speech was protected and whether the speech could have affected working relationships.
June 18, 2011 Editor's Note: This post has been edited to reflect that instead of an action under one Texas statute, it is more accurate to say a plaintiff may bring a complaint for wrongful discharge under the various statutes or case law precedents that govern this area under both Texas and federal law.