Optimus Template

The question as to how far a public Employer can go to discipline one of its Employees for personal conduct off-duty was recently answered by Arbitrator Barry Goldman. Before any disciplinary action can be invoked, the conduct in question must be shown to cause substantial harm to the Employer. In the case of Van Buren Township Firefighter Kenneth Landstrom, language shown on his personal Facebook page did not meet the criteria and a suspension from duty was set aside.

A citizen who was opposed to the Firefighter on unrelated political grounds was the source of the complaint brought to the attention of the Employer. The Employer argued that the offending comment was not protected by the First Amendment because the Firefighter was not commenting upon matters of public concern. Arbitrator Goldman stated in his ruling that, only someone who was actively seeking an opportunity to be offended by something the Firefighter did would bother to be offended by his Facebook page. There was nothing in the picture or elsewhere on the page that identified the Firefighter as an employee of the department. Additionally, the Employer failed to show any impact or probable impact that the appearance of that phrase has had or conceivable could have on the safe, effective or efficient operation of the Department.

Generally speaking, in order for off-duty conduct to meet the just cause standard, the conduct in question must be shown to cause substantial harm to the Employer. More specifically for public employers, it must be shown to (1) harm the employer's business, (2) adversely affect the employee's ability to perform his or her job, or (3) lead other employees to refuse to work with the offender.

The fact that the Firefighter had a bad word on his Facebook page was not sufficient to make that showing.