Your Privacy is not Private: Social Media and Employee Discipline
Social Media platforms provide an easy way to engage with “friends” and share your opinions. All social media platforms currently provide “privacy” settings by which you can limit the recipients of your posts to those you have selected as your friends. So, you should feel secure that what you say on social media will not come back to haunt you. WRONG! NOTHING IS TRULY PRIVATE ON SOCIAL MEDIA.
That lack of privacy has direct consequences for union members. YOU CAN AND WILL BE PUNISHED FOR WHAT YOU SAY ON SOCIAL MEDIA. In the private sector, the only question is whether there is some connection between your comments and your job. If you post carelessly, your comments may be perceived as racist or sexist and you may be disciplined for those comments simply by virtue of the fact that all employees in the United States are expected to be able to work with others regardless of race, religion, gender or other legally protected characteristics. Even outside the scope of bigotry, adverse comments about your employer can lead to discipline as employees are expected to maintain a reasonable degree of loyalty to the employer during their employment.
In the public sector, employees are protected by the First Amendment but only to a point. Although the First Amendment protects your comments on issues of public concern, comments on social media that make their way to the workplace and cause “disruption” can result in discipline. This is particularly true when you express your opinions on hot button issues with words of hostility or where your comments are race or gender based. Consider the following, which was the subject of an employee discipline case recently handled by Isaacs, Devasia, Castro & Wien LLP.
Remember, white people: Your sole purpose during this time is to protect people of color while they’re destroying the city. Obey. Submit.”
This post, on the employee’s supposedly private social media account resulted in his suspension from employment, the employer’s attempt to terminate his employment, an arbitration hearing where the Arbitrator found termination inappropriate but imposed a six month, multi-level demotion, with corresponding loss of pay, a time-served suspension, and an ultimately unsuccessful appeal by the employer to the courts in an attempt to have the arbitration award thrown out.
The quoted post was stated in sarcasm. It was a response to a prior post stating that there should be more violence and property destruction in police misconduct protest and that the role of sympathetic white people was to be a “white wall” protecting ethnic minorities while they commit riotous acts. The sarcasm was intended to indicate opposition to both the call for violence and the race based roles in the prior post.
The comment, however, caused extensive outrage among co-workers, was widely reported in the news media and was the repeated subject of a podcast popular among this employee’s co-workers. Additionally, many of the employee’s subordinates wrote to the employer demanding discipline and stating that they could not work under the employee’s supervision. The comment, finally, was deemed by the arbitrator to reflect the employee’s “racist attitude” and imposed the penalty discussed above. Imagine how different things would have been if the employee has simply stated: “I find your call for violence and your bigotry to be wrong and offensive.” Clearly, there is nothing outrageous or racist about this comment which would have saved the employee months of anxiety, public humiliation and tens of thousands of dollars. The lesson: Speak your mind, but do so with care.
The additional lesson is; union representation matters. Had the employee not been represented by a labor union, he would have been fired with no recourse. The First Amendment, here, provided no protection because of the disruption in the workplace and it was only the union collective bargaining agreement and its clause prohibiting termination without just cause that saved this employee. That clause required arbitration which although final and binding on paper was still subject to an appeal by the public employer. Such an appeal, known as an “application to vacate an arbitration award,” meant that the Arbitrator’s decision remained unenforceable for many months after it was issued. Only after Isaacs, Devasia, Castro & Wien LLP secured a victory for the employee and the union, did he return to his original position with the employer.
It cannot be overstated. Absent a labor union contract, most employees work in an “at-will” environment meaning they can be terminated for any reason, no reason, or even bad reason, so long as the termination isn’t independently illegal under anti-discrimination statutes. Even with civil service protection, the hearing a public employee is entitled to is not before an independent body. The hearing officer is an employee or contractor hired by the public employer and the ultimate decision is made by the public employer. Only arbitration gained through collective bargaining provides for an independent evaluation in disciplinary cases. Again, union representation matters.
Isaacs, Devasia, Castro & Wien LLP is expert in the intricacies of collective bargaining, arbitration and litigation with respect to arbitration awards and is proud to have achieved these results for the union and it member.
Howard Wien represented the union in this matter.