Careful What You Tweet

As everyone knows by now, employees can be fired for things they do off duty, like post an inappropriate remarks about the boss on Facebook.  Of course, the employee might be saved if the post implicates the National Labor Relations Act's restrictions on discharging someone for protected activity.  The employee might also be saved if he or she has a union that will take their case to arbitration.

Take the matter of King Man Ho and Radio Free Asia.  Last January, Hillary Clinton was in Hong Kong and gave a speech (ironically, it turns out) on internet freedom.  Ho covered the story and quoted the reactions of two Chinese bloggers to the speech. 

The bloggers accused Ho of misquoting them and being unethical on their Twitter accounts.  Ho, trying to find out why they were making the accusations, used his own Twitter account to try and find out what was going on.  Ho became somewhat agitated in his Tweets, eventually prompting his editor to tell him to stop Tweeting.  Ho Tweeted one more time, which resulted in his termination for insubordination and violating RFA rules about appropriate behavior.

Had Ho been employed by a non-union employer, that would have been the end of the story.  However, because Ho's union contract had a provision in it stating that employees could not be discharged except with "just cause," he was able to present his case to an arbitrator.

The arbitrator ruled that Ho was discharged without just cause, and reinstated him to employment with full back pay and benefits.  The arbitrator acknowledged that the employer could have a policy regarding Tweeting, but held that it was unclear whether the policy had been violated given the circumstances of the case.  Additionally, the arbitrator found that Ho was not guilty of insubordination because the directives he had been given by his supervisor were not very clear.  The decision can be read here.

As technology evolves, so does the employer's ability to reach outside the workplace and fire employees for violating work rules on their own time.  But with cases like the NLRA Facebook case and this one, sometimes old standards applied to new technology save the day.