Can ODOT fire employee for advocating for shooting migrants?
A state DMV employee who is accused of posting a comment on Facebook that migrants should be shot at the border has been put on paid leave while the Oregon Department of Transportation investigates the comment.
Thousands of callers and commenters have called on the agency to dismiss Lori McAllen for the post, and the incident has drawn international media attention.
"We take this matter very seriously and very personally," the agency posted on its Twitter account Thursday, June 21. "The comment doesn't reflect our agency values and is disturbing and hurtful. Thank you for your patience as we complete the investigation."
McAllen, a Linn County resident who has worked for the DMV for about 10 months, earns $2,883 per month as a full-time transportation service representative, said David House, an ODOT spokesman.
It's unclear whether the agency can legally fire McAllen for the comment. The outcome could depend on whether she made the post during work hours and whether her comment is protected free speech under the U.S. Constitution, said Scott N. Hunt, a partner at Busse & Hunt, a Portland employment law firm.
McAllen appeared to have made the comment in response to another social media post criticizing the Trump administration's decision to criminally prosecute migrants for crossing the border without prior authorization, according to screenshots of the post shared on social media.
"I personally think they should shoot them all at the border and call it good," McAllen purportedly wrote. "It'll save us hard working AMERICAN'S (sic) billions of dollars on our taxes!! ;)"
Protected speech generally means a citizen makes a comment on a matter of public concern.
Immigration is a matter of public concern, but advocating for shooting migrants would likely not be interpreted by a judge as being protected speech, said Hunt, who has handled free speech retaliation cases in the past.
"Unfortunately, the law is a pretty sticky wicket," Hunt said. "I don't think that comment is clear cut as to whether it is or it isn't protected speech."
If the comment is deemed as protected speech and she were fired, she could have a free speech retaliation case, he said.
She could sue ODOT for economic losses, emotional distress, attorney fees and punitive damages against the supervisor who terminated her.
"I would think they wouldn't want to respond in a knee-jerk way," he said. "Was it posted during work hours? It probably was posted on personal account while at home. Arguably they shouldn't be terminating her for something she did at home."