Would you fire an employee for flipping off the CEO and then using the picture on her social-media accounts? 

It kind of changes the picture, right? Juli Briskman is the bike rider in the picture and she's flipping off President Trump and his motorcade. She didn't know the image would be captured, but when her friends recognized her, she claimed it and started using it on her social-media accounts. Briskman isn't just a concerned voter, she is a government contractor.

This means Trump isn't just her president, he's her boss.

She worked for Akima, a government contracting firm, which means that ultimately, she reports up to President Trump. If there were no politics involved and Briskman had been an Amazon employee flipping off Jeff Bezos or a Microsoft employee flipping off Bill Gates, would you care they fired her? (Note: I'm not saying that Amazon or Microsoft has or would fire someone for such behavior, but if they had, would you care?)

Things get all muddy when you start adding politics to the mix. Employment attorney Marc Alifanz pointed out in a LinkedIn post that: 

"As an at-will employee for a private company, they can fire her for her online (or offline) actions, so long as they aren't otherwise protected (in some states they are). And political speech isn't protected in the private sector."

So, even though Trump is effectively her CEO, she's a private sector, at-will employee.

But the other twist in the case is that apparently, the company didn't terminate a male employee who made an inappropriate Facebook comment. According to the Washington Post, here's the rest of the story. 

"Because Briskman was in charge of the firm's social-media presence during her six-month tenure there, she recently flagged something that did link her company to some pretty ugly stuff.

As she was monitoring Facebook this summer, she found a public comment by a senior director at the company in an otherwise civil discussion by one of his employees about the Black Lives Matter movement.

"You're a f------ Libtard a------," the director injected, using his profile that clearly and repeatedly identifies himself as an employee of the firm.

In fact, the person he aimed that comment at was so offended by the intrusion into the conversation and the coarse nature of it that he challenged the director on representing Akima that way.

So Briskman flagged the exchange to senior management.

Did the man, a middle-aged executive who had been with the company for seven years, get the old 'Section 4.3' boot?

Nope. He cleaned up the comment, spit-shined his public profile and kept on trucking at work."

Now, personally, I would have recommended a serious punishment for this executive (given that this story is true), up to and including termination, because the epithet was directed toward one of his direct reports. The law doesn't require that, though, and we honestly don't know what was said or done with this guy--and it's doubtful Briskman knows either. But here's why the two cases are very different, and it has nothing to do with gender discrimination.

Job Duties: While I don't know what the "Libtard" guy did, Briskman was a social-media employee. That's her job: To understand and use social media effectively. She should have untagged herself from the photos, rather than claiming them. A person in charge of social media should be held to a higher standard on social media.

Tenure:  Briskman had been with the company for six months, the man for seven years. Companies often give more leeway to an employee with a long tenure. If he's been a quality performer for all this time, his mistake can be seen as a blip. She hadn't had a lot of time to build up a reputation.

Politics: Could she have been fired because she disagreed with the politics of the leadership? Sure. Should they fire someone for disagreeing? No, but it's not illegal.

Most of all, though, it's doubtful that Briskman will suffer any long-term damage. As attorney Alifanz also points out, lots of companies out there are looking for people who share Briskman's frustrations

Published on: Nov 7, 2017
The opinions expressed here by Inc.com columnists are their own, not those of Inc.com.