The line between what constitutes an employee’s private life and communication that becomes the concern of an employer has always been a bit blurry. However, when the employee’s communications constitute clear violations of federal law, and are brought to the employer’s attention through several complaints, things become a lot clearer.
In the case of State of Minnesota and AFSCME, the grievant was a nine year Forensic Support Specialist in the Direct Care and Treatment Division for the Department of Human Services. Her role was to work with vulnerable adults. Although she had a good work record she was found, after a thorough investigation, to have sent several inappropriate messages concerning the patients with whom she worked. Aside from using demeaning language about the patients, she stated she would like to “kill them all,” that she was going to ruin a patient’s day, and she posted a chart note from a patient on her Facebook page, almost in its entirety. This resulted in the termination of her employment.
After finding that the complainant in the case had not hacked into the grievant’s Facebook page, as alleged, Arbitrator Jacobs then had a detailed discussion regarding just cause for discipline and what constitutes protected collective action in a union context. In addressing the subject of whether the statements by the employee were protected free speech, the arbitrator stated that the right to free expression “is not absolute and public employees may not always have free speech rights in the same sense that members of the public do.” He found the topics of discussion to be neither a matter of public concern nor concerted activity on the part of the grievant.
The union also made claims of disparate treatment, in that one employee who commented on the grievant’s posts was only given a written warning. The arbitrator was able to differentiate the actions by that employee and the grievant, who spearheaded the discussion, and also posted a patient chart “in violation of HIPAA.” The arbitrator found that her conduct was far more severe than that of other employees who the grievant had claimed participated in similar activity.
In response to the union’s allegations that the grievant was not afforded due process due to her not receiving a full list of allegations against her at her first investigatory interview, the arbitrator found that the collective bargaining agreement only required that the affected employee be told the nature of the allegations, and that there was no prejudice to the grievant, as she was interviewed twice regarding the allegations and also provided a Loudermill hearing. He held that beyond giving an employee an opportunity to provide additional information, a Loudermill places no additional requirements on an employer to change its mind prior to termination.
Arbitrator Jacobs then went into a lengthy discussion of an arbitrator’s role with determining the appropriate level of discipline (which Ben will be discussing during this year’s MPELRA Winter Conference!). He found that the grievant violated several applicable policies, including HIPAA, and while the grievant did have a good work record prior to these incidents, “these violations were so serious that they overshadowed the length of good service.” With that, the grievance was denied and the termination was upheld.
This case provides a good persuasive authority for instances of employee off-duty activities, speech, what constitutes concerted activity, and policy violations. Frequently employers are faced with situations involving usually good employees who put themselves in bad positions. If you, or your organization, need assistance in the investigation or termination of an employee, contact Wiley Reber Law, for legal assistance that works.