Off-duty misconduct: the Internet
(Source: Labor Arbitration Institute – Conference Reporter 10/08/2020)
An employee’s time away from work and the work site are their own, private time. . . unless there’s a connection (a “nexus”) to work and meets the elements of off-duty misconduct.
At a recent conference, a Chicago-based labor arbitrator talked about two cases in which the Internet has added a wrinkle. It’s a wrinkle because, in many ways, the legal analysis has not changed.
Teacher with a podcast
This grievant was a high school teacher. After-hours and from his home (not using school equipment), he would produce a podcast. The subject was books and movies. Not that many of his students listened to the podcasts, but these would be books or movies that could be of interest to them.
He decided to spruce up his podcast so more people would listen. So he hired a voice actress. She suggested this line that she would deliver in a sexy voice, and the line would lead nicely into his “books and movies” discussion. That line was: “Warning! Intellectual masturbation ahead.”
The school district received one parent complaint. This parent no longer had children in the district, but seemed to follow the teacher online.
This was an interesting case. It was a small town, and the teacher was popular. And maybe the students became more regular listeners. But the interesting legal issue was:
- Can the Internet satisfy the nexus standard? and
- What are the community standards? This test harkens back to the standard that courts apply in pornography cases.
How do you decide what is the community standard when we all have children who can get access to all kinds of things online? Your community may have a more conservative standard, and in the old cases, you could walk down the street and ask citizens what that standard was.
The union argued that these students have much more access because of what’s on the Internet, and here was the union’s point: they were not shocked by the podcast intro. The union also pointed out that the intro was not sexually-based. You could argue that point.
I think community standards have changed because of the Internet. And I overturned most of the discipline in that case. I found there was a nexus but, under the just cause standard, counseling was the appropriate remedy.
P.S. By the time of the hearing, the grievant had taken down the intro line, but not the podcast. Ironically, the school district did not quibble with the content of the podcast when the teacher would discuss the sexual themes of the books or movies.
Pilot on the union chat board
The pilots union hosted a chat room that is only available by password to union members. This pilot made derogatory comments about the sexuality of a pilot co-worker and her transitioning. (The airline had featured the co-worker in a news release). No one outside the pilot union group found out about the posting. No customer did. And no one in the public did.
What happened instead is that the pilot who was the target of the criticism complained to management. She felt that other pilots were looking at her differently and she was being made to feel uncomfortable.
The arbitrator found that the grievant’s posting did impact the employer because pilots work together and how they do so affects safety, which is paramount. The discipline was upheld. Some arbitrators did not agree with the decision, primarily because the union website is too tenuous a connection. Or that the union is given some protection for their internal communications. Of course, the company argued that it did not snoop into the website or chat room; it was the union’s own member who told them about it. She felt victimized by the Internet posting.