My first two posts discussed the protections that may be available to private and public sector employees who are disciplined for their social media activities. Another important source of protection available to some employees is collective bargaining agreements. In unionized workplaces, both public and private employers must have just cause to discipline employees. Perhaps more importantly, employers may not discipline employees for off-duty misconduct unless the misconduct bears a sufficient “nexus” to the workplace. Arbitrators consistently hold that discipline is justified for off-duty misconduct that tends to “undermine, if not destroy, the minimal foundations of a productive relationship.”
Several recent arbitration decisions have applied this “nexus test” to employees’ social media activities. For example, the arbitrator in Vista Nuevas Head Start, 129 Lab. Arb. Rep. (BNA) 1519 (2011) (VanDagens, Arb.), upheld the discharge of a head start teacher who created a secret Facebook group where she and fellow employees disparaged supervisors, coworkers, students, and parents of students. Although the group was secret, an administrator ultimately learned of the posts and interpreted their language as threatening. Accordingly, the administrator disclosed the posts to the individuals targeted, all of whom expressed their hesitation or refusal to work with the teacher. Thus, the teacher’s off-duty Facebook activities undermined or destroyed the minimal foundations of a productive relationship.
Similarly, in AirTran Airways, 131 Lab. Arb. Rep. (BNA) 254 (2012) (Goldstein, Arb.), the arbitrator upheld the suspension of a flight attendant who posted threatening status updates on Facebook directed at the airline’s scheduling department. An anonymous coworker reported the posts, which included statements such as “scheduling better watch their back” and “they are all f—king dead.” The arbitrator concluded that the employee “specifically chose words and tone that were not merely insulting to the [scheduling department], but threatened them with physical harm.” As such, the posts are another example of employee behavior that bore a sufficient nexus to the workplace and provided just cause for discipline.
However, not all arbitration awards uphold the employer’s disciplinary actions. In U.S. Steel Corp., 130 Lab. Arb. Rep. (BNA) 461 (2011) (Bethel, Arb.), an employee who was going through a divorce sent a Facebook message to his mother-in-law warning that his father-in-law, a co-worker at U.S. Steel, should “watch for me” at the plant. The arbitrator reduced the employee’s discipline from a discharge to a 30-day suspension because he apologized for his behavior the day after making the threat and because the father-in-law had apparently not taken the threat seriously. Of course, a 30-day suspension is still a serious disciplinary action, which shows that the employee’s message bore a sufficient nexus to the workplace to justify discipline. Nonetheless, arbitrators generally have authority to reduce the severity of a disciplinary action to fit the severity of the misconduct.
Another example of an arbitrator reducing the severity of discipline, the arbitrator in City of North Bay Village, 131 Lab. Arb. Rep. (BNA) 275 (2012) (Wood, Arb.), found that a police department did not have just cause to suspend an officer who posted a supportive comment on a mayoral candidate’s Facebook page. In lieu of suspension, the arbitrator ordered the department to issue the officer a letter of reprimand for implying that his views represented those of the department. She concluded that suspension was unjustified because the officer did not violate a work rule prohibiting department employees from engaging in political activities when representing the department. More simply, the arbitrator found that the officer’s comment bore a nexus to the workplace but did not warrant suspension. Perhaps more importantly, the arbitrator recognized that “[i]n the public sector certain positions are held to such a high standard that their conduct off-duty can have a detrimental effect on the employer’s ability to operate effectively.” This helps explain why the officer received a letter of reprimand and reflects the fact that “off-duty misconduct of government employees that might be found to have no bearing on the private-sector workplace may justify the imposition of discipline by a public employer.”
In sum, although the nexus test applies in organized workplaces both private and public, public-sector employees are generally held to stricter off-duty standards. Furthermore, as these arbitration awards demonstrate, the nexus test does not shield employees from discipline when their social media activities undermine their work relationships. Although the just-cause provisions of collective bargaining agreements offer employees far more protection than standard at-will employment relationships, a unionized workplace is no substitute for sound professional judgment. An ill-advised social media post can prompt serious discipline in any workplace. As such, my advice to employees who wish to post comments about the workplace is simple: If wouldn’t want your boss to read it, keep it to yourself. And if you resent the fact that your employer can discipline you for your off-duty social media activity, welcome to the Facebook era.
Posted March 25, 2014