Wednesday, May 23, 2007

Hook Sett and Gossip

The “Hooksett Four” appeared on Good Morning America this morning to discuss the fact that they had been fired for gossiping. The four women, employed by the town of Hooksett apparently discussed amongst themselves the rumour that their boss, David Jodoin, was having an affair with another employee. While this is interesting in the gossip department it is not entirely news in the employment law department– especially in the U.S. where “at will” employment is the standard in many states. That means that anyone can be fired at any time for any reason – save and except human rights issues. The law for non union employees in Canada is not entirely dissimilar. What is required here in cases where the employer doesn’t have cause, is reasonable notice of the termination or payment in lieu thereof. The question that would be addressed here is whether or not gossiping about the boss amounts to just cause.

The first issue to be addressed here is whether or not the employees are free to speak. As I wrote on May 11th, there have been a number of cases where employees have believed that they have a moral obligation to warn the public of some illegal activity that the employer has engaged in. In each of the cases the employee ultimately lost. That should make it pretty clear that there is no freedom of expression in the workplace. In his forthcoming book, Speechless: The Erosion of Free Expression in the American Workplace, Professor Bruce Barry suggests that employers have far too much control over what employees can say. But, as Rutgers human resources professor, Barbara Lee states: “employers have a right to say work time is for work.”

There have been cases in Canada where employees have been fired for disseminating crude material about employees via e-mail. In one case the employees in question substituted a name in a crude joke with that of an employee and circulated it. The court held that sending the-mail by itself may not have amounted to cause, but, added together with the employee’s dishonesty about it when asked, was.

As I noted in my posts on Imus (April 25) , the law in Canada requires that cause be assessed using a contextual approach. It is entirely conceivable that the four women were concerned about a workplace romance that may have been uncomfortable for them. In one British Columbia case, a manager was fired for having an affair with a subordinate and then lying about it. After the affair ended the estranged lovers were not geting along. The employer investigated and was told by "employees in the branch, such things as it was 'not a tolerable place to work', that 'leadership is lacking – a soap opera', and that it was like “elementary school – the two most important people in the branch aren’t working together'." The court held that the affair was a significant conflict of interest.


senk8105 said...

Bravo to Bruce Barry for speaking out in such powerful detail about an issue that affects us all. Discussion over the issues raised in _Speechless_ is long overdue.

Ironically, in our “Bushed,” “pro-business,” deliberately job-scarce economy, with its frightening assaults upon both free expression and workers’ living standards and other most basic rights, the very possibility of employment discrimination that Barry so well documents is what keeps many thoughtful working people from themselves speaking up and speaking out about these very issues--and others that affect them most.

As Barry notes, while actual incidents of employers penalizing employees and job applicants for expressive activities might be relatively rare, the very fact that it can and does occur is enough to silence many workers. This is not only an infringement of basic individual rights and, as Barry so well notes, a baleful influence upon the overall health and quality of free and open discourse and debate in our “free” society, but (as I’ve been pointing out for over 20 years) is also a major brake upon much-needed political, social, and, yes, economic change and progress in modern America.

Employers that fret about, for example, off-hours expressive activities of employees and applicants and seek “digital dirt” on them rather than concentrate on on-the-job skills and performance infringe on employees’ and job seekers’ privacy and dignity–and undermine our most basic rights and freedoms.

Once one allows any employer to dictate one aspect of one’s private life, where does it stop?

Why not require employees and job applicants to submit to employer monitoring–again, the technology for this is already widely available!–of whatever they, even (indeed, especially) on their own time and off employer premises, read, watch, or listen to; who they associate with and what kinds of groups they’re in; what Web sites they visit and what they send or receive online; and the like?

We can’t have employees who dare to write or read postings like this one or otherwise explore, much less spread, ideas about “controversial issues” that the employer might not like, such as notions about fairer tax policies and a stronger “social safety net,” or–horror of horrors–about (gasp!) working people actually having rights, now, can we?

While many private employers, commendably, do respect the inherent rights of employees and job applicants to engage in political activities and otherwise lead their lives away from work free of employer coercion or interference, some do not. In an era when the Internet and other forms of modern technology make it frighteningly easy for employers and others to find out about many aspects of our personal lives we’ve long regarded as personal, this can have chilling implications.

As National Workrights Institute (NWI) legal director Jeremy Gruber has noted, these implications and the actions of certain employers pose grave dangers for our society, our freedoms, and for each of us. As he put it, employers who delve into our lives outside of work “are making decisions based on information not submitted by the employee or references. It is wholly unrelated to the employment relationship,”

What’s more, Gruber added, “The idea that when you hire someone, you should be able to look at every aspect of their personal life is completely at odds of how a democratic society should operate. It has huge consequences for freedom in this country, when people are afraid or are changing their behavior because of what a potential future employer might say or do.”

Any society where this is so is not a truly free society.

Employment discrimination based on off-the-job political activities, indeed, now seems to be rising to a level not known since the era of McCarthyism.

Many people, especially in today’s job-scarce economy, are now hesitant to take part in any form of political activism–writing a letter to a newspaper, calling a radio talk show, posting on the Internet, taking part in a march or a rally–for fear that their employer might somehow frown on such actions.

Indeed, in 2002, during a long job hunt after a 2001 layoff, I was once denied a plum job as an editor with a nonprofit educational association in part because of what the employer, when I challenged its vague (and contradiction-ridden) claim of things being simply a matter of “subtle factors” involving “fit”–meanwhile, I suspected and alleged sex discrimination (the editorial department involved was all-female and stayed so)–called, in McCarthyesque terms, my “record of being involved in controversial issues,” namely, feminism and children’s rights–never brought up in any interview, but found after the “responsible” employer decided to do an Internet search.

This sleazy practice, too, while disturbing and reprehensible, is in many states, mine included, still apparently legal. This, too, must be stopped through legislation like California’s, which specifically forbids employers from dictating or attempting to dictate employees’ political activity.

Better yet, every state and Congress should adopt legislation, as a few states (such as North Dakota) have, protecting the right of employees and job applicants to engage in any lawful off-hours, off-premises activities they choose.

Generally, such activities are none of an employer’s business unless they pose an actual and substantial conflict of interest or otherwise materially and substantially impair one’s ability to do one’s job.

It is time to reclaim your and our rights–before we are all forced to live at the mercy of abusive employers in a nationwide, high-tech Pottersville, a modern version of the company town right out of George Orwell’s _1984_ or Ira Levin’s Stepford, one that controls not only our work but our other actions, our minds, and our souls “24/7."

It is not about the bottom line; it’s about power and control. Let’s reclaim our rights.

So urge your state and federal lawmakers to support legislation protecting the rights of employees and job applicants to engage in lawful off-hours, off-employer-premises activities without fear of employment discrimination.

Let’s say to employers: Our skills, attention, and loyalty are yours eight hours a day, 40 hours a week; the rest of our lives belong to us, and to us alone. For not only ourselves but our fellow citizens and future generations, we are taking back our lives, our privacy, and our rights.

For your rights and mine,

Scott Enk


"We will not walk in fear, one of another. . . . We are not descended from fearful men, not from men who feared to write, to speak, to associate and to defend causes which were for the moment unpopular. This is no time . . . to keep silent. . . .

"We proclaim ourselves, as indeed we are, the defenders of freedom--what's left of it--but we cannot defend freedom abroad by deserting it at home."

--Edward R. Murrow, at the end of the immortal 1954 segment of his CBS television program _See It Now_ in which he exposed Senator Joseph R. McCarthy

"Our lives begin to end the day we become silent about things that matter."

--Martin Luther King Jr.

Randall Telford, Barrister-at-Law said...


There is an interesting Supreme Court decision in Canada dealing with the off duty views and activities of a high school teacher, Malcolm Ross. Ross participated in anti semitic writing and other activities.In essentially upholding discipline against him, the Court praphrased the famous Canadian Philosopher Marhsall Mcluhan stating:

"By their conduct, teachers as "medium" must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to "choose which hat they will wear on what occasion."