I recently gave two different speeches discussing the balance between an employeeâs privacy and an employerâs right to know. One of the themes is that social media has irreparably blurred the line between oneâs personal persona and oneâs professional persona, and employees best be careful with that they say online, because employers are watching and holding them accountable.
Case in point? Buker v. Howard County (4th Cir. 3/20/17) [pdf].
Buker concerns a fire department battalion chief fired because of series of posts (his spelling, not mine) to his personal Facebook page.
My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .
and
To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. Iâm not scared or ashamed of my opinions or political leaning, or religion. Iâm happy to discuss any 8 of them with you. If youâre not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.
and
Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Governement recently published a Social media policy, which the Department then published itâs own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.
Additionally, Buker âlikedâ a photo, posted by a co-worker, of an elderly woman with her middle finger raised, captioned: âTHIS PAGE, YEAH THE ONE YOUâRE LOOKING AT ITâS MINE[.] IâLL POST WHATEVER THE FUCK I WANT[.]â
He also âlikedâ a racist comment by a co-worker to his âbeating a liberal to deathâ post, which suggested that Buker âpick a black one.â
Based on the totality of these posts, the department fired Buker.
The court had little problem affirming the lower courtâs decision dismissing Bukerâs claims.
For several reasons, we conclude that the Departmentâs interest in efficiency and preventing disruption outweighed Plaintiffâs interest in speaking in the manner he did regarding gun control and the Departmentâs social media policy. First, Plaintiffâs Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department. âŚÂ Second, Plaintiffâs Facebook activity significantly conflicted with Plaintiffâs responsibilities as a battalion chief. ⌠Third, Plaintiffâs speech frustrated the Departmentâs public safety mission and threatened âcommunity trustâ in the Department, which is âvitally importantâ to its function. ⌠Fourth, Plaintiffâs speechâparticularly his âlikeâ of the image depicting a woman raising her middle fingerââexpressly disrespect[ed] [his] superiors.â Lastly, we observe that the record is rife with observations of how Plaintiffâs Facebook activity ⌠disregarded and upset the chain of command upon which the Department relies.
In sum, we conclude the Departmentâs interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiffâs Facebook activity.
Let me put it a more practical way. Employees have not yet realized that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination. Until people fully understand that social media has erased the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in this new online world, because it is clear that not all employees have yet learned this lesson.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.









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