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. 

For many years, the New York City Board of Corrections has stood as an obstacle to the safety of the staff in the City’s jails. During the current Mayoral administration, the Board has passed rule after rule making a dangerous job nearly impossible. Correction Department staff have suffered exacerbation in both the number and severity of assaults by inmates directly due to well-intentioned but misguided reforms imposed by the Board. The Board is responsible for establishing “minimum standards” of care for inmates and, consequently, has the ability to draft rules that extensively tie the hands of Correction Officers in their efforts to quell jail violence. 

The Board has repeatedly restricted the use of punitive segregation, which requires isolation of highly assaultive inmates. That restriction directly led to increased jail violence by inmates against not only law enforcement staff but against other inmates and civilian staff creating chaos in the city jail system. During 2019, the Board yet again published proposed rules to further restrict the use of this life-saving law enforcement tool. Isaacs, Devasia, Castro & Wien LLP took the matter to the New York City Board of Collective Bargaining claiming that the imposition of these rules constituted a safety threat to officers and that the failure to bargain with their union beforehand constituted an improper employment practice. 

The City moved to dismiss the case arguing that the Board of Collective Bargaining had no jurisdiction over the Board of Correction.  The Board of Collective Bargaining, however, rejected that argument.  It noted that the fact that the New York City Department of Correction is obligated to comply with the Board of Correction’s rulemaking does not eliminate the Board of Collective Bargaining’s jurisdiction because “it is well established that a public employer has an obligation to bargain over matters within the scope of bargaining even if it is complying with a law, regulation, or directive that it did not promulgate.” As a result, the Board of Collective Bargaining clarified that rules promulgated by the Board of Correction are subject to the same improper practice analysis as any other public employer.  

This clarification means the unions representing the over ten thousand members of the Department of Corrections’ staff can directly challenge Board of Correction rules at the Board of Collective Bargaining. For the uninitiated, the Board of Collective Bargaining is the local, New York City, version of the New York State Public Employment Relations Board or the National Labor Relations Board. As such, it is the only recourse for City employees’ and their unions’ claims of improper employer practices such as failing to bargain in good faith or interference, restraint, coercion or discrimination against employees in the exercise of their rights to form, join and participate in labor unions.  A decision clarifying the Board of Collective Bargaining’s jurisdiction over rule-making bodies such as the Board of Correction is critical victory for public employees and their unions. 

Howard Wien represented the union charging party in this matter.

On December 13, 2016, a New York City Correction Officer was assaulted at the Otis Bantum Correction Center on Rikers Island by a detainee of the New York City Department of Correction awaiting trial on drug charges. The officer suffered significant physical injuries in the assault including facial bruises and cuts, sprains to his left wrist and left ankle and chronic back pain. He missed work for four months as a result of the assault followed by two months of medically restricted duty. He suffered psychological trauma and continued to suffer pain to his ankle, wrist and back for several months after the incident forcing his resignation during June, 2017.  The detainee was convicted and sentenced on October 24, 2018 to a term of five years’ incarceration and five years’ post release supervision for his attack on the officer. This conviction, however, provided no direct compensation for the officer.  

On February 10, 2018, another New York City Correction Officer was assaulted at the George Motchan Detention Center, also on Rikers Island, by five detainees. The detainees were members of the Bloods street gang. The assault was planned in advance in retaliation for the officer’s prior write-ups of their ring-leader who was being detained on attempted murder charges. The officer suffered a fractured neck and cranial bleeding in the attack. The ring-leader was eventually convicted of assault and sentenced to jail but that conviction, again, provided no direct compensation to the officer. 

During 2018, both the first assailant and the ring-leader in the second assault were transferred to Albany County. Both sued Albany County and New York City during June, 2019 claiming the transfers constituted a variety of civil rights violations. New York City and Albany County settled this lawsuit agreeing to pay these violent criminals hundreds of thousands of dollars. Neither New York City nor Albany County gave any thought to the Correction Officer victims of these criminals and the settlement agreement did not mention them at all.   

When Isaacs, Devasia, Castro & Wien LLP learned that these criminals were in line to receive such large sums of money, it sued them on the officers’ behalf for assault. In the meantime, Isaacs, Devasia, Castro & Wien LLP worked closely with the New York State Office of Victims Services to secure compensation for the officers. Under New York’s “Son of Sam” law, criminals are not permitted to profit off their criminal acts. Thus, where criminals are to receive financial awards, the Office of Victims Services can, on the victims’ behalf, obtain an injunction preventing the release of money until the time the victim’s suit against the assailant is settled. Using this process, Isaacs, Devasia, Castro & Wien LLP has secured compensation for these officer of forty and eighty thousand dollars respectively, money directly reducing the settlement amounts reached between the assailants and New York City and Albany County with payments coming directly from those municipalities. 

Isaacs, Devasia, Castro & Wien LLP is proud to have stood up for these officers and ensure that inmate assailants pay for assaulting Correction Officers. 

Isaacs, Devasia, Castro & Wien LLP attorneys Steven Isaacs and Howard Wien were counsel in these matters.  

Jonathan Bandler, Rockland/Westchester Journal News

A Mount Vernon police officer on military reserve duty in Washington, D.C., in the wake of last week’s riots, may have trouble getting his proper city pay while he is away.

And depending on how the city handles his case, Officer Raiton Betty could join his sister and a third city cop in a lawsuit challenging how the police department is paying reservists.

Officers Samantha Betty and Thalia Santos claim they have had pay withheld since the fall while they were on reserve duty assisting with the COVID-19 pandemic. 

“It’s sad that the department has picked now to try and change the way this has been done,” said police Lt. Nicholas Mastrogiorgio, who became president of the Mount Vernon Police Association this month. “We’re in the middle of the worst crisis the world has ever seen and then to top it off with the unrest in D.C., it’s mind-blowing how they can do this out of nowhere.”

The city has yet to respond to the lawsuit, which was filed by the union and the two officers last month in state Supreme Court in White Plains. It names police Commissioner Glenn Scott, the police department and the city.

Reservist pay is not covered in the Mount Vernon police contract but rather in the city charter.

Read more here

December 7, 2020 – Today, Isaacs, Devasia, Castro & Wien LLP’s client, the National Association of Transportation Supervisors (“NATS”) was certified by the New Jersey Public Employment Relations Commission (“PERC”) as the collective bargaining agent for over a hundred formerly unrepresented employees at New Jersey Transit in the Foreman I and Foreman II titles.

Isaacs, Devasia, Castro & Wien LLP has a wealth of experience assisting its union clients to “organize the unorganized.” During 2018 and 2019 Isaacs, Devasia, Castro & Wien LLP client, the United Transit Leadership Organization (“UTLO”), was certified by the New York Public Employment Relations Board (“PERB”) to represent nearly one thousand employees at several subsidiaries of the New York Metropolitan Transportation Authority in spite of the employers’ classification of them as “managers” where applicable law excludes managers from union eligibility.

During 2019, Isaacs, Devasia, Castro & Wien LLPsecured representation rights by NATS for several employee titles at the Hudson-Bergen Light Rail. In the process, the National Labor Relations Board (“NLRB”) overruled the employer’s claim that the employees were “supervisors” which would have excluded them from eligibility for representation under the National Labor Relations Act.

Isaacs, Devasia, Castro & Wien LLP attorney Howard Wien represented NATS at PERC and the NLRB and represented UTLO at PERB in these matters.