You Can’t Fire Me For A Facebook Post! I Have A Right To Free Speech! (US)Squire Patton Boggson July 5, 2023 at 9:00 am Employment Law Worldview


Ohio Court of Appeals Disagrees, Confirming That Employees Cannot Succeed on Free Speech Violation Claims Against Private Employers (US)

Rita Hall worked for Kosei St. Marys Corporation (“KSM”) as a line supervisor. In June 2020, Ms. Hall posted an offense image on her public Facebook page comparing a group of monkeys to a group of African Americans. Several KSM employees complained to KSM management about Ms. Hall’s post. KSM subsequently terminated Ms. Hall solely because of her racially offensive Facebook post. Ms. Hall sued KSM, claiming she had been wrongfully terminated for exercising her free speech rights under the US and Ohio state constitution.

On June 20, 2023, an Ohio Court of Appeals ruled against Ms. Hall, explaining that Ohio employees cannot succeed on a wrongful termination claim against a private employer where the basis of that claim is the employees’ alleged exercise of free speech rights. But before we get into the court’s decision, some background on wrongful termination law in Ohio will help frame the court’s decision in Hall.

Employment relationships in Ohio are presumed to be “at will,” meaning that in the absence of a written employment contract, either an employee or an employer may terminate the relationship at any time, for any reason or cause or for no reason or cause. Of course, there are exceptions. For example, employers cannot terminate employees for discriminatory (e.g., race, religion, gender, age, disability, etc.) or retaliatory (e.g., making a discrimination complaint or participating in an employment discrimination investigation) reasons.

In 1990, the Ohio Supreme Court carved out another exception to the at-will doctrine. In Greeley v. Miami Valley Maintenance Contrs., the Court explained that an at-will employee can bring a claim for “wrongful termination” when the employer’s reason for termination is contrary to established public policy. The plaintiff in Greeley had been terminated after his employer received notice that his wages were to be garnished for child support. Ohio law plainly prohibited employers from terminating employees subject to such child support orders. Thus, the Court held that Greeley’s termination violated public policy, as expressed in Ohio statutes.

The Ohio Supreme Court laid out the elements necessary to succeed on what has come to be known in Ohio as a Greeley claim. To make a case of wrongful termination in violation of public policy, a plaintiff must demonstrate that:

a clear public policy exists in either the Ohio or federal constitution, statute, regulations or common law (the “clarity element”);
dismissing the claim under the circumstances at issue jeopardizes that public policy (the “jeopardy element”);
the plaintiff’s termination was motivated by conduct related to the public policy (the “causation element”); and
the employer did not have an overriding legitimate business justification for the dismissal (the “overriding-justification element”).

Now back to Ms. Hall’s lawsuit against KSM. She argued that she could establish the “clarity element’ of her Greeley claim because posting the picture on her personal Facebook page was free speech protected by the Ohio constitution. The trial court disagreed, and because it found that she could not meet even the first requirement for a Greeley claim, it granted KSM’s motion for summary judgment. Ms. Hall then appealed to Ohio’s Third District Court of Appeals.

On review, the Third District acknowledged that Ohio precedent has established that the free speech protections in the Ohio constitution are parallel to those in the First Amendment to the US Constitution. But, it also held that, as with the First Amendment, Ohio’s free speech protections only apply to state actors, not private employers. The Third District pointed to other Ohio courts, both state and federal, that had reached similar decisions.

Ms. Hall attempted to salvage her wrongful termination claim, arguing that her case was analogous to Plona v. UPS, a federal case from the Northern District of Ohio, in which the plaintiff was terminated for possessing a firearm off company property. The employee alleged that terminating his employment for that reason violated the public policy embodied in the Second Amendment. But the Third District rejected Ms. Hall’s analogy, stating that the right to bear arms under the Second Amendment had nothing to do with free speech protections under the First Amendment. Consistent with prior rulings, the court in Hall confirmed that only the state is barred from infringing on employees’ free speech rights. Thus – and this is the critical holding from Hall – absent some state action, private employers in Ohio cannot be held liable for wrongful termination in violation of public policy where the claim arises solely upon free speech protections.

Although a welcome decision for employers, Hall serves as a good reminder that even when an employer may be legally within its rights to terminate an employee for an offensive speech, even outside of work, doing so is not without risk or expense. Accordingly, Ohio employers should continue to work with employment counsel when investigating and responding to employee conduct that could implicate potential Greeley claims.

Employment Law Worldview

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