N.J. Town Fires Worker, Citing 'Appalling' Facebook Remarks
Sam Falcetano Jr., who posted on a publicly-viewable Facebook page called "Memories of living in South Orange, NJ or Maplewood, NJ," allegedly made homophobic slurs and complained about "liberals who have voted for Obama [and] ruined the Maplewood I grew up in." The Patch reports:
Some posts contained allegedly more graphic comments. The posts were reportedly removed late on July 15, after town officials learned of it. In the posts, Falcetano also reportedly identified himself as an employee of Maplewood. In a public photo on his own Facebook page, he and some other posters make fun of his picture, stating that he looks "gay."
From there, Falcetano segued into statements criticizing teachers who "force feed their pupils a liberal agenda," abortion and gay marriage, which he said "breaks down the moral fabric of society."
"...don't try and force your perverted man on man into our traditional marriage," one post read.
When reached by AOL Jobs, Falcetano cited his right to free speech and implied that he would challenge his firing. "I can't really say too much. My union is working on it. I feel that I exercised my first amendment rights. My union told me not to speak with anybody."
Neither Falcetano nor the only person available at the Maplewood administrative office could provide the full name of the union and neither would give contact information. AOL Jobs phoned Mayor Victor De Luca, who was out of the office, and then emailed him, but did not receive a response.
A division in the famously progressive town
The town has been listed as one of the 25 most liberal cities in the country. Maplewood has, according to New York Magazine, a reputation for diversity, with more than 40 percent of the population being non-white and a "a number of interracial and gay couples." The late actor Roy Schneider, singer/songwriter Lauryn Hill, and former Vogue editor-in-chief Grace Mirabella were all graduates of the regional high school.
In a thread about the firing, which appears on the "Memories of living in South Orange, NJ or Maplewood, NJ" Facebook page, there was a mix of opinion about the situation. Many of posters apparently found Falcetano's opinions offensive, though a number of these people were uncomfortable that he was fired for expressing his opinion, no matter how much they disagreed. Some others said they agreed with Falcetano's views, although they didn't specify which ones and Falcetano apparently had frequently posted criticisms about the area and local governments. At least one person claimed that Falcetano had ranted not only on this group page, but on the personal pages of some of the participants.
What the law says
Private employers have significant leeway to fire employees for what they post on Facebook. Citing the First Amendment is typically futile when dealing with a private employer because it specifically refers to government limitations on speech, not private ones.
A public employer, like a town, is in a different situation because it is a type of government body covered by the First Amendment. Because Falcetano is a member of the United Construction Trades & Industrial Employees International Union and worked under the collective bargaining agreement it negotiated, he would not be considered an at-will employee under New Jersey law, meaning the town could not fire him for any reason. Under the labor contract covering union employees, Maplewood can only discipline someone for "just cause."
"Certainly it's a hot issue among public employers in the state of New Jersey and around the country what is said on social media, what the expectations of privacy is, whether it's public or private, and how the employer finds out about the communication," Cohen said to AOL Jobs.
Employees' rights are limited
An employee must be speaking about a matter of so-called public concern: "if you're speaking out about conditions that affect more than just you and your job," said Cohen. A classic case would be a whistleblower discussing an abuse of power.
However, comments that "go to the heart of their job" and affect perception of how employees would perform their duties may not be covered. "There have been cases in New Jersey with teachers making comments about student in their class or comments that could be perceived as anti-gay or lesbian or anti-protected classes," Cohen said. "In those instances, there is a principle in the public sector where you can be disciplined for conduct unbecoming a public official."
The union contract with the town provides for an extended grievance procedure, which ultimately can end in binding arbitration. But according to Cohen, Falcetano may also have rights under the federal or New Jersey constitutions to sue over the alleged breach of free speech.
Read, "The Worst Ways To Be Fired."
Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. Follow him on Twitter at @ErikSherman