Using Harvey for Political Tweets Could Get You Fired

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By Madison Alder

Some people are using Hurricane Harvey as a platform for political discussion on social media—and it could jeopardize their employment.

A visiting professor of sociology at the University of Tampa was fired Aug. 29 after making comments on Twitter that suggested Hurricane Harvey’s devastation in Texas was “karma” for the state voting for President Donald Trump in the 2016 election.

“We condemn the comments and the sentiment behind them, and understand the pain this irresponsible act has caused,” the university said in a statement.

Kenneth L. Storey, the professor who posted the tweets, took them down promptly and appears to have deleted his account. He did, however, issue an apology before exiting Twitter, saying he regretted his previous statement and hoped those impacted by the hurricane “recover quickly.”

“I think what we’re seeing now is as the political situation gets more frayed in this county were going to see these workplace free speech issues coming up more frequently,” David Yamada, a workplace law professor at Suffolk Law School in Boston, told Bloomberg BNA Aug. 30.

The comments made in light of Hurricane Harvey are only the most recent example of complications employers may face when it comes to employees’ political proselytizing. Recent events, including the white supremacist rally in Charlottesville, Va., and the presidential election, have contributed to the growing discussion about how employers handle their employees’ political speech and activity.

Professorial Protections Lacking

“One of the twists in this particular case is the campus situation,” Yamada said.

Storey was a visiting professor and, as a result, probably didn’t have as many protections as a tenured faculty or tenured track faculty would have, Yamada said. Professors who are tenured or are tenured track typically have a presumptive right to academic freedom that at-will employees don’t, he said. “Most private sector employees are at will.”

Case Law ‘Evolving’

Employers could see more of these types of issues surrounding political expression on social media, but they should be cautious in making swift decisions.

“I don’t think the remedy is any different because of the hurricane than it has been since social media made its way into this country,” Adam Forman, an attorney with Epstein Becker Green, told Bloomberg BNA Aug. 30. Forman is part of the firm’s employment, labor, and workforce management practice and is a member of Bloomberg Law’s Labor and Employment Technology and Innovation Board.

He said employers should handle these scenarios on a case-by-case basis and consult with an expert “who is fluent in this area” before they take action.

“The case law in the area—even though it’s starting to mature a bit—is evolving,” he said.

Yamada said some employers might have policies for social media, but they should avoid policies that could micro-manage their employees outside of work.

“There is a gray area where common sense is a lot better than rules and laws,” Yamada said.

Public Versus Private Employees

One consideration is is whether the person posting the message is a public or private employee, Forman said.

“A private employee that makes comments on social media does not enjoy First Amendment protection,” Forman said. “That’s one of the issues that’s widely misunderstood by the public.”

The University of Tampa is a private institution and therefore, First Amendment protections don’t apply in Storey’s case, Forman said. There are other protections, however, that might pertain to his comments.

Employees at a public university would be protected by the First Amendment with limitations, Forman said. Public employees are protected if they’re discussing an issue of public concern and discussing the issue as a private citizen.

In the case of the visiting professor at the University of Tampa, “he immediately deleted his tweet and then tweeted an apology saying it was wrong,” Forman said.

If he were a public employee, those actions would only hurt him because he is indicating that what he said was wrong and was not a matter of public concern, Forman said.

To contact the reporter on this story: Madison Alder in Washington at malder@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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