Archive for February, 2011
I’m talking about the case of the Connecticut ambulance company that fired an employee after she posted negative comments about her boss. The National Labor Relations Board (NLRB) filed an action against the company maintaining that the firing was illegal; the ambulance company and the NLRB reached a settlement last week. There is so much misinformation and inaccuracy floating around the Web right now about this case that it’s ridiculous to even list or link to them all. If you insist, here, and here are a couple of offenders. Here’s why they are wrong:
1. FREE SPEECH – This case isn’t about free speech at all. Not one single, solitary sliver. The firing didn’t impact the employee’s free speech rights, and the settlement doesn’t validate any free speech rights. The case is about “protected concerted activity“, which all employees are allowed to engage in pursuant to the National Labor Relations Act (NLRA). The law states that employees have the right to discuss wages, hours, working conditions, etc. without fear of retaliation or punishment. That is NOT constitutional free speech, but a worker right granted by statute. If these writers don’t understand the difference between the Constitution and a statute, they need to go back to high school civics.
2. UNION OR NON-UNION – The NLRA applies to all employers and employees, with some specific exceptions that are not relevant here. When articles say that non-union employers are not impacted, they are dead wrong, because ALL employees have the right to engage in protected concerted activity. It is the conversation about wages, hours, and working conditions that allow employees to make reasoned choices about unionization, which is why it is allowed by statute. At least that is the theory.
3. AT-WILL EMPLOYMENT – Employers in an “at-will” jurisdiction do not have to have a reason to terminate an employee. BUT – they cannot terminate an employee for an illegal reason, like sexual or religious discrimination, or whistle-blowing. Commentators who say there is no impact in an at-will jurisdiction don’t understand the concept at all, and are dead wrong. Even at-will employers cannot legally fire someone for talking about their working conditions.
The issue in this case is simple: Was the employee Facebook post, and her comments in response to others, a conversation about working conditions at her place of employment? If so, it is protected concerted activity that the employer may not legally prevent or punish.
Since Facebook posts are pretty clearly an attempt to start a conversation or to encourage someone to listen to you, I don’t see why this is even questionable, unless the employee was writing about her dog or cat and not about working conditions. The case is really no different than if the woman was standing around the coffee shop talking with her co-workers about her boss. Facebook is just digital conversation around a virtual water cooler. This is what the NLRB wants employers to recognize.
Some bloggers want to turn it into more than this, or into something else altogether. Don’t believe them.
Last Tuesday, the day before the Detroit area was to receive a major blizzard, I asked my husband if he intended to go to work the next day. After he glared at me with a withering look, he answered, “We’ll see.” His withering look and dismissive answer told me how foolish the question really was. I have lived with him for almost 25 years, worked at his food processing business for over 10 years, so I should have known this without asking: you don’t close the business for weather.
That’s not to say that he would never close the business for a weather related emergency, hence the cryptic “we’ll see.” His point was that a true weather emergency is, by definition, sudden and unexpected. If Wednesday came and there was no way to drive the 25 miles to get to work, then he would decide not to go. Deciding not to work in advance does not, in his opinion, make good business sense.
His attitude got me thinking about my long work experience and the days when the phrase “snow day” didn’t even exist. I remembered the Great Blizzard of 1978 and specifically recalled one of my fellow police officers calling the station and saying, “I can walk up to Ford Road if someone can get to me and pick me up.” That is exactly how he got to work when he couldn’t get his car out of his driveway. In other words, he sucked it up and went to work. So did the rest of us. No excuses, and, more importantly, no expectations that it should be any different.
Of course I understand that sometimes weather emergencies are so bad that people should not risk their safety for their job. Hurricanes or tsunamis come to mind. My point is that it’s pretty difficult to tell a full day in advance, particularly with snow, if the weather is going to create that type of a risk. Before Snowpocalypse 2011 even arrived, though, people were fully expecting to take the day off. Many businesses announced on Monday – two full days in advance – that they were going to close.
Maybe the reason that Ford Motor Company didn’t need to be bailed out by the government (unlike GM and Chrysler), and is now posting record profits, is that they make careful and sensible business decisions, like not canceling production solely on a weather prediction. People got to work safely last Wednesday, even if they were a little late. (My husband got to work in one hour, which is about 20 extra minutes.) If half of the Ford workforce “didn’t show up”, as this man posted on Facebook, perhaps FoMoCo will decide that they don’t need that many workers after all. That certainly wouldn’t help any employees.
Tell me what you think! Is it in the best interest of workers if companies cancel the work day for snow or other weather related emergencies? Should it be done in advance, or should a company wait until the full effects of the emergency are known?