This post was authored by Jeffrey C. Freedman.
Picture this: you are your agency’s Human Resources Director. One morning a fellow Director from another Department comes to visit you. She tells you she was sitting before her home computer the prior evening and found a Facebook post from one of her employees complaining about his pay and benefits, making defamatory comments about her, and stating his plan to take his issues to his union. A number of “likes” and comments agreeing with him had been posted by at least six of his co-workers, all of whom work in her Department. She tells you she became worried that mutiny is afoot. Next, she says she has reviewed the agency’s personnel rules and employee policies and found a provision that prohibits employees from disparaging other employees. She now asks whether she has any recourse. More specifically, she asks whether the employee who posted this can be fired. What answer do you give her?
The answer depends on analysis of two separate areas of law: First Amendment rights to freedom of speech and public employee rights to participate with fellow employees in advancing and protecting the terms and conditions of their employment. This article will deal with the second area; issues under the First Amendment involve, among other concerns, whether the speech relates to matters of public concern as opposed to only private, personal matters. We have addressed this topic elsewhere. Issues relating to employee rights to discuss working conditions arise under laws including the Meyers-Milias-Brown Act (MMBA) for employees of cities, counties, and special districts, the Education Employment Relations Act (EERA), and others. This topic became a matter of concern recently after the National Labor Relations Board (“NLRB”) overturned an earlier precedent on the legality of employer policies, which was then followed by a document entitled “Guidance on Employer Rules” issued by the NLRB’s General Counsel. The NLRB enforces and interprets federal labor relations law, which applies only to private employers. But since the California Public Employment Relations Board (PERB) routinely looks to the NLRB for guidance, an examination of this recent development is worthwhile for public employers.
The NLRB’s 2017 decision in a case involving Boeing reversed a 2004 decision on the Board’s criteria in determining whether employer work rules unlawfully infringed on private sector employee rights “to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The new criteria give more leeway to employers to adopt facially neutral rules as long as the application of such rules does not interfere with employee rights. Under the 2004 criteria, many rules were presumed to be unlawful even if their wording was facially neutral – as long as their wording could be interpreted as infringing on employee rights. The General Counsel’s memorandum, GC 18-04 (issued this past June 6), read the 2017 criteria as focusing on a balance between an employee’s right to engage in protected concerted activities and an employer’s ability to maintain discipline and productivity in the workplace. The General Counsel broke the various types of work rules into these categories:
1-Rules that are generally lawful to maintain because, when reasonably interpreted, they do not prohibit or interfere with employee exercise of protected rights or because the potential adverse impact on protected rights is outweighed by the rule’s business justifications. These include rules protecting confidential and proprietary information or documents, which are presumptively lawful since generally these do not relate to negotiations issues or to employee wages, hours, or other terms and conditions of employment. Also presumptively lawful are rules on civility, insubordination, conduct on the job that adversely affects operations, disruptive behavior, and defamation, for example.
2-Rules requiring scrutiny because they may well interfere with employee rights, such as prohibitions on disparaging the agency, as opposed to individual employees, speaking to the media, making false statements that do not rise to the level of defamation, confidentiality rules that are overbroad, and rules banning off-duty conduct that are overbroad.
3-Rules that are per se unlawful such as rules prohibiting discussion of wages, benefits, or working conditions, or rules that would limit employee rights to join outside organizations.
So what about the Department Director’s question? Can that Facebook-posting employee be disciplined, up to termination? First of all, clearly every employee has the unlimited right to complain about pay and benefits. So imposing discipline for this complaint would clearly be unlawful, as would taking action because of the employee’s statement of intent to complain to the union. However, defaming a specifically named employee, in this case the Department head, depending on the specific content and context, is not protected activity and could warrant some level of discipline. Whether termination would be warranted, especially in the context of this employee’s other statements, which are legally protected, is something else, and should be reviewed by HR along with the agency’s legal counsel. In any case, HR should consider revising and supplementing the agency’s personnel rules and employee policies in light of the NLRB General Counsel’s Guidance.