Question:
During the Christmas holidays, I attended a social event where my wife and I told a series of jokes to and about each other. Several others at our table were equally rowdy, and everyone enjoyed our jokes. While I knew individuals at other tables were watching the fun we were having, I didn’t realize one of them was recording us. The recording made it back to my employer.
Even though I attended the event on my own time and the person who recorded my jokes wasn’t employed by our company, my employer fired me, despite my four-year track as a manager.
I’ve searched for an attorney but not found one interested in my case. I’ve also looked for work, and found a potential new job. I’ve heard that if I sue for wrongful firing and win, but have a new job, it dramatically reduces what I might net from a successful lawsuit. What are my odds of winning?
Answer:
Not good—unless you find a skilled attorney; or have as a defense innocuous or related to rights you hold, such as those given you by the National Labor Relations Act. A few facts to consider:
Public
You attended a large public event. The hosts may have invited you because of your position in your company. You made enough noise that people at surrounding tables took an interest in your jokes.
Executive status
The higher you climb in your company, the higher a standard to which you’re held. Last September, Tony Blevins, a key Apple executive and a top negotiator whose skills helped Apple build and maintain its supply chain, attended a car show. While there, a TikTok influencer asked Tony what he did for a living. He responded with a statement Dudley Moore made during the movie Arthur, “I race cars, play golf and fondle big-breasted women.”
Tony, who said he “only made a joke,” lost his job despite his 22-year career with Apple,
Weak defense
Your defense appears to be three-fold. Others were equally rowdy; your table mates enjoyed your jokes, and you attended the party on your own time. You probably don’t let your kids get by with the “others did it too” defense. If you’ve attended a good harassment training, you’ve learned “they laughed at my jokes” doesn’t transform an off-color joke into a clean one. Some states have laws that prohibit employers from firing employees for their lawful off-duty conduct. That can change if there’s a relationship between the off duty conduct and your employer or if your conduct harms your employer. In your case, your employer may feel your jokes offensive enough that you damaged their reputation.
The reality
According to a September career builder survey, 18 percent of employers reported firing employees for making jokes and inappropriate statements on social media.
Employers fired employees who posted about their partying lifestyle or illegal activity; broadcast employer secrets; wrote false or racy posts; or made derogatory comments about customers or clients. One notable twitter joke that fell flat—a woman tweeted “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute . . . and hating the work.” Cisco rescinded her offer.
Defenses
Some of your jokes and public statements, even ones that irk your employer, might be protected. If you’d joked about your working conditions and not your wife, you might have had a winnable case. The National Labor Relations Act gives employees the right to discuss their jobs, even when they complain about their employer, pay or working conditions, if they post to groups that include their coworkers.
Title VII of the Civil Rights Act protects employees if their posts relate to legally protected categories, for example, if a gay employee posts photos showing their same-sex relationship. This defense falls apart when your joke or post qualifies as hate speech or is derogatory toward members of a protected category—even your own.
You might also have protection against retaliatory firing if you joke or post about your employer’s illegal activity or safety hazards. If you make jokes or statements that incite violence against another individual or group, your employer will probably prevail if it fires you.
Your takeaway—tell safer jokes.
Remember to sign up for Lynne Curry’s Jan. 19 webinar on Navigating Conflict. It’s free for members of Law Office Manager.