Business/Economy

Only a joke? Your public words and posts can cause you big trouble at work

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 record 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 that your jokes were 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

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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, but not Alaska, prohibit employers from disciplining employees for off-duty conduct.

The reality

According to a September CareerBuilder survey, 18% 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 people including 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.

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.

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 they fire you.

Your takeaway: Tell safer jokes.

Lynne Curry | Alaska Workplace

Lynne Curry writes a weekly column on workplace issues. She is author of “Navigating Conflict,” “Managing for Accountability,” “Beating the Workplace Bully" and “Solutions,” and workplacecoachblog.com. Submit questions at workplacecoachblog.com/ask-a-coach/ or follow her on workplacecoachblog.com, lynnecurryauthor.com or @lynnecurry10 on X/Twitter.

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