I would play this.
At work.
Of course there is, but the point is, THIS case no longer hinges on that distinction due to other factors now revealed. Shirvell’s defense will have to do far more than cry “free speech” and “c’mon, everyone blogs at work!” to claim wrongful termination.
1.) There is no free speech at your job.
2.) It doesn’t matter if “everybody blogs at work.” If *you *blog at work, and you’re not *supposed *to blog at work, and you’ve been *told *not to blog at work, and you *keep *blogging at work, you can be fired.
[QUOTE=Shot From Guns]
2.) It doesn’t matter if “everybody blogs at work.” If *you *blog at work, and you’re not *supposed *to blog at work, and you’ve been *told *not to blog at work, and you *keep *blogging at work, you can be fired.
[/QUOTE]
But if the employee sues saying “I was doing no more than many other people do”, it would at best be a PR problem and depending on the state or jurisdiction could be grounds for discrimination. (Think of it flip-flopped: conservatives blog or facebook or whatever but aren’t fired, but an openly gay good looking guy who makes a post to afterelton or some other gay site is fired- the fired employee would probably be on Anderson Cooper that night, and later might appear on his TV show as well.)
It doesn’t matter if it would look bad–they *can *still do it. Your stated concern was over precedent.
I see what you did there!
I don’t think we’re actually in disagreement here - but as Cox claimed early in the furor, as a government employee Shirvell is protected under civil service rules and could not be fired for exercising free speech on his own time. (He changed his tune pretty quickly after apparently reading some of the blog posts and getting hit with the public backlash.) The fact of whether he was actually blogging at work was unclear at the time. Of course his lawyer has been claiming this is purely a free speech case all along and will continue to do so.
Now that the investigation has revealed that he was conducting his anti-Armstrong campaign at times while on the job, that’s one nail in his coffin. Another is the lies to the investigators. Another is the harassing nature of showing up at Armstrong’s house at 1:30am with a video camera. This case has a huge political component and the PR problems shouldn’t be ignored. The larger the number and scope of improper behaviors cited, then 1)the less convincing the argument the defense has on appeal that “waah waah, this guy was just doing stuff that other people do and don’t get fired for, so it must be because of that liberal gay agenda thingy, FREE SPEECH FREE SPEECH DISCRIMINATION DISCRIMINATION!” And really, who wants to see this guy get his job back on appeal? And 2)we can reasonably expect to avoid the question of “does this mean can I get fired for updating my Facebook status from my own iPhone while at work” completely.
[QUOTE=Sampiro]
the fired employee would probably be on Anderson Cooper that night, and later might appear on his TV show as well.
[/quote]
Ooo, you cheeky devil, I missed that till I previewed and saw Mighty_Girl’s post. 
Well, yes, you *can *be fired for updating your FB status from work, even from your own phone. *Will *you be fired for it? Probably not, but that doesn’t mean you *can’t *be.
Yeah, but in this example, it’s a clear cut case of arson, murder, and jaywalking, and I’m glad he ain’t gonna get off scot-free just because everyone jaywalks. That’s all I’m saying.
But people don’t get off scot-free because everyone jaywalks. Seriously, try going into court to get out of a jaywalking ticket with the defense that “everybody does it.” I’ve got $5 that says you’ll be laughed out.
This is getting nowhere.
Here’s my whole point, beginning to end: I am happy that there is more to the case against Shirvell than “blogging at work” and that because of that, we the residents of SE Michigan are somewhat less likely to suffer through weeks or months of “he was just blogging at work, everybody does that, this is clearly a first amendment violation, discrimination, unpopular views, libbrul gay agenda, blah blah” bullshit from his lawyers in the press for months to come. 'Cause it’s bullshit, and I don’t wanna hear it. Doesn’t matter that people can and do get fired for blogging at work; that’s the weak point and is the angle his lawyers could be expected to and have already said they will take, and now they have a LOT more that they have to explain in order to prove he was fired solely for his opinions. At the very least, there will have to be some variety in the rhythm of their conservative homophobic drum-banging.
There. End. Finis. That’s it, that’s all. I am not arguing about what should or should not be a firing offense. All I am saying is that he’s accused of committing several different kinds, and the one he and his lawyers wanted to focus on appears to be the least of them, and if they go that way it sucks for his chances for appeal, and I say “GOOD.”
Nobody’s arguing that exactly. What we’re saying is that if 20 people at your work all play Farmville or cruise Craigslist and you get fired for cruising Craigslist but the other 19 don’t, there is discrimination at play. Whether playing Farmville or cruising Craigslist are justifiable firing offenses isn’t really the issue- we can take as granted that they are- but enforcement of the rules against it should be distributed evenly.
If Peggy arrives at work late everyday and gets fired while Gary, Joan, Eddie and Sue arrive at work just as late and don’t, Peggy is within her rights to be p.o.d and to claim discrimination as either she shouldn’t have been fired OR Gary, Joan, Eddie and Sue should have been fired. If Peggy is arriving late to work everyday AND steals a $3000 printer, then who’s late and who’s not really isn’t an issue anymore because the being late is an add on. If she should challenge it through her union or her attorney or whatever, the employer can always say “Alright, that was unfair… dropped. She’s fired for stealing the printer though, and Eddie and Sue and Gary and Joan did NOT steal printers”.
Corrrect me if I’m wrong, but just because an employer *may *fire you for certain activities doesn’t mean that they *must *fire you for them. So if you get fired for doing something you’re not supposed to while 20 other people don’t get fired for doing the same thing, that is not ipso facto illegal. The employer may still fire you for something that they haven’t fired other people for, *as long as *the official story for the firing isn’t a cover for an illegal reason. Which isn’t to say it’s a *good *idea, especially as far as employee morale and public perception go, but it’s not illegal.
That said, “I’m glad there’s more to pin on him than blogging at work” is something I wouldn’t have objected to. What I *did *have a problem with was “I’m glad this isn’t setting the precedent that you can get fired for updating your FB status.”
No, but it is unfair, and that’s enough to get an employer sued and with some reason. Many forms of sexual harassment aren’t illegal but they will get an employer slapped with a huge lawsuit. This invalidates a re-entry path for Shirvell on grounds of discrimination, which evidently everybody else understood to be the entire point of the Facebook analogy.
FWIW, I totally see what you’re saying here. You want him to get fired, like we all do, but not for some bullshit reason that leaves his (former) employer up to accusations of political bias. It’s pretty straightforward, I am not sure why Shot With Guns has grabbed upon this particular pedantry for argument.
I’m not entirely sure she can help herself.
Cite? You can qualify for *unemployment *for being fired unfairly, but AFAIK as long as the motivation isn’t demonstrably (or at least feasibly) because you’re a member of a protected class, you can’t get extra compensation and/or your job back just because your firing was “unfair.” And if sexual harassment weren’t illegal, you wouldn’t be able to sue people for it (fucking duh).
Because saying that you can’t be fired for making a simple FB update is wrong. Remind me again… What’s the slogan of this site?
Most discipline has to be shown to be consistent if you want to make it a firing offense without hassle. There’s degrees and then there’s degrees of hassle. This guy would definitely fit into the degree-degrees if-you-know-what-I-mean category.
You’re a fucking moron if you are still arguing this point.
Bingo! That is the slogan of this site!