This post is the first in a series on the law governing whether employees can be fired for blogging about their work.
A blogger's rights depend on whether his or her employment contract allows termination at-will or only for cause. Under an at-will contract, an employee can usually be fired for any reason or no reason. The employer can fire someone because he has come to work in a bad mood and decided "Gee, I feel like firing someone, let's pick a name out of a hat." A just clause contract, naturally, requires that the employer have a reasonable justification for termination.
Since at-will employees can be fired just because their boss is cranky, they can also be fired for blogging. A few exceptions may apply. For example, even an at-will employee is protected by laws against discrimination. Ellen Simonetti, a Delta flight attendant fired for blogging mildly suggestive pcitures of herself in uniform on Delta planes claims that male flight attendants were not fired for similar blogs.queenofsky. If true, her dismissal might violate antidiscrimination laws.
Employees receive more protection under a just cause contract, but still owe a duty of loyalty to their employer. A blogger may violate this duty by badmouthing the company or coworkers, or by disclosing confidential information.
When I was a case worker in Hollywood, California, I suggested we hang pictures in the waiting room. I was told that these welfare recipients were so poor that “pictures wouldn’t make any difference for them,” and that “California needs to save money to improve the highways.” I was fired for over-identifying with the client population
It is 11:45 p.m. on a Saturday night. My partner and I are getting ready to call it a night for our shift when this call comes in:
Partner: Cab company, can I help you?Motor City, Picking Up Bob
"Bob": Yeah, I need at cab at 1234 Smith St.
Partner: Ok, where you going?
"Bob": Down to Jones St., at 6 x ABC.
Partner: Will you be coming back? (recognizing this as an destination for drug runs)
"Bob": Yeah, I have to drop something off to my Aunt, so I need you to wait for me and bring me back.
Partner: Gee, didn't we take you down there last night to see your Grandmother: (Yes, we did!)
"Bob": Well, yeah you did. Can I get a cab?
Partner: Sure! Your Aunt and Grandmother must live real close to each other, huh?
"Bob": (Starting to sound nervous) Yeah, I guess so. You gonna send me a cab?
Partner: (Really enjoying himself at this point) Sure, sure. Don't you worry about them down there? You know, those are all drug houses?
"Bob": Ok, listen! The cab isn't for me. It's for the lady next door. I'm just calling it in for her, ok?
Partner: Oh! Well ok, sure. What is the name of person we are picking up?
I was a newbie inthe lingerie section of a department store when he came in. This little old man who'd shuffle among the racks of women's undergarments and run his hands over the silky drawers. Then he'd select a pair of huge nylon briefs and, tilting his face slightly up, drape the material over his face, inhaling deeply. "How should we handle this?" I asked the experienced saleswoman beside me. "Oh, don't pay him no mind. That's just the Panty Man. He comes in every so often. I'll shoo him away in a bit."
Transvestites?: An hour from closing time on a dead Friday night in the lingerie department, the phone rings. The caller tentatively asks, "Do you cater to transvestites?" Energized by the promise of something fun, I respond gamely, "Define 'cater to'." We negotiated rules and determined that certainly I would help him select items, and he was welcome to try them on (provided he not strain the fit of a yet unpurchased garment). The only caveat was he'd have to try them on in the men's fitting rooms across the store. I was totally bummed out that he never came in ... or did he blend so well that I never knew?
Uh, what size?: Men entered our frilly corner of the store from time to time, some stepping gingerly, some with lascivious grins. When I'd ask what size their lady required, they usually had no clue. More than one blushed and glanced involuntarily towards my chest. One day, exasperated beyond propriety, I snapped, "Listen, make this really quick. How does she compare to me?" After the thoroughly embarrassed man left with his purchases, I realized that I could simply direct customers to compare to the mannequins. Hmmm... I am soo slow.. . . As I type this in, it explains the group of three men who came in a few days later and looked disappointed when I crossed my arms and referred them to the mannequins.
Other times, the men would swagger in, toss something purple, feathered, and g-strung onto the counter and insist that the xsmall thong and 38DD bra were exactly what their wives needed. At least twice, these items were flung huffily back onto my counter a week later by a woman of average build who exchanged them for teddy bear sleep shirts.
We had a coworker that made Felix Unger look like a slob. "Squealy" . . . would monitor the relative cleanliness of the men's bathroom and make unsolicited reports to my boss, cc'ing his own boss to make sure my boss jumped quickly enough I guess. Sample of the E-mails this guy generated:
Squealy Monday - THE SOUTH WEST MEN'S BATHROOM IS ALMOST OUT OF SOAP.We used to snicker about all these notes, probably because if you didn't laugh you would have to cry. . . . [O]ne day, . . .when Squealy passed his manager's office sighting a quick bathroom break, his boss quipped, "What, going to check the soap?"
Squealy Wednesday - THE DISPENSERS WERE REFILLED. GREAT!
My Boss Wednesday - IF YOU'RE HAPPY, I'M HAPPY
Squealy Thursday - THE BATHROOM FLOORS LOOK LIKE THEY HAVEN'T BEEN CLEANED IN A WEEK.
Squealy Friday - THE BATHROOM FLOORS ARE STILL DIRTY. IN FACT THE SAME M&M HAS BEEN ON THE FLOOR BY THE SECOND TO LAST TOILET FOR NEARLY A WEEK
My Boss Friday - GROWING UP, IN OUR BATHROOM, THAT M&M WOULDN'T HAVE LASTED A WHOLE WEEK, BUT I WON'T TELL YOU WHY
. . . [But after Squealy] complain[ed] repeatedly about the sad state of the windows (he had a window seat) my boss actually went out there with a squeegie and did the windows . . . I guess the moral of the story is that the squeaky wheel gets the oil . . . and gets laughed at by his coworkers.From Lemming Brigade
On a business trip my boss had rinsed out his undershorts and left them in a sink at a hotel across the country. When he realized the undershorts were not in his suitcase he called the hotel and asked that they put his undershorts in a bag at the reception desk. Then I was sent, round-trip, to pick them up the next day.
As I was walking into the office yesterday to check my folder (our version of an in-basket), I noticed a signup sheet on the bulletin board. I glanced at it, then went about my business. I noticed ivitations to the Christmas party sticking up out of the other teachers' folders. There wasn't one in mine. I took all the papers out of it just to double check. Nothing. I walked back to the signup sheet and said, 'So this is a signup sheet for the Christmas party I haven't been invited to?' To which Bossman chuckled and said, 'Darn, you've found out about it.'I'm pretty sure it was an oversight, but it was odd how I was the only one not to get an invitation.From The Report Card, Deck the Halls?
My boss, a partner in a law firm, dictated a very important letter. It was a multi-million dollar deal and the letter had to be perfect. All I made was one little typo. Instead of saying the funds were “not” available, the letter said, “the funds are NOW available”.
The company's development manager, Calvin, was a stubborn beast at the best of times. He generally refused to cave in over any issue, except maybe after a painful two-hour dispute full of circular logic and the exhaustion of every possible avenue of argument. His stated theory behind this strange behaviour was that if the victim was still prepared to argue their point after two hours of torture, then he or she must feel strongly about their convictions, therefore is probably right.
How unproductively the afternoons were whiled away...
Calvin's favourite tactic was to use analogies to augment his argumentative stance, deliberately throwing his opponent off-track. This was a guaranteed argument-winner - because after all, who cares about the welfare of the company or the project - Calvin mostly wanted to save his ego by proving himself "right", by fair means or foul.
Programmer: "We cannot do this in 2 weeks, it needs at least four times as long."Two weeks later, the angry Calvin would demand to know why the project wasn't finished, as he had "promised the sales team".
Calvin: "Let's compare it with an Eskimo tribe taking fishing trips in a skidoo, darting around ice floes..."
Calvin: "The ice floes drift, this way and that, throwing the skidoo many miles off course. But it always gets there, and they catch their fish. The Eskimos are determined. The Eskimos want their fish. Are you saying the Eskimos should have simply given up and let their families go hungry?"
Programmer: "Well, I mean no, but..."
Calvin: "I thought so. 2 weeks it is then. You see? I rule supreme."
For more, see softwarereality.com, True Stories - BodgeCo and Friends
My boss was starting a fiber-heavy diet, since he suffered chronic constipation. He asked me to create an Excel spreadsheet so we could track the frequency and density of his bowel movements. Every time he went to the bathroom to poop he’d describe it to me so I could enter the time, date and characteristics in the spreadsheet.
I work at an electronics store and I was talking to a fellow employee at another store. He told me that a guy [who we'll call John Doe]came in quite often and bought a lot of the same crap . . . 500 bucks or so worth of small electronic parts every month and always the same things. So one day [my coworker] asked him what he was building/keeps building . . . He said he builds time machines! He sells them online and he makes a fortune doing it. . . [A] few visits later he buys more of the same stuff and when he brings it to the counter [my coworker] asked him for the usual . . . name and address . . . But . . . there was not one but two John Does in our data base. [U]pon closer inspection the guy whose name appeared to be in there twice had different addresses in different towns . . . about 30 miles away from each other . . . John Doe wasn't surprised about that fact but he did say that he knew that guy. He claimed it was his alter self from a different time period. He says he has to be careful not to run into him because if will cause a paradox and the whole world might come to a end. He also said that he has known about him for a few years but doesn't know if his alter self knows that he lives in this same time period and also so close to him . . . [D]uring another visit he told this same employee that he wanted to warn him about a certain restroom in a restaurant in Lincoln NE. That if you entered it at a certain time you would go back in time . . . [W]hat is odd about this guy is he seems totally normal and has a family who comes in sometimes and they all seem normal . . .
Mr. S decided he wanted to hire someone to help with general housecleaning and to pull some weeds from his yard. . . . Since it's just an occasional job, Mr. S decided to call one of those agencies that provides laborers on a daily basis, a labor-on-the-spot kind of thing. We got on the phone together and called the one nearest his house.
Mr. S: Yes,this is Mr. S calling. I need a worker for today. . . Someone to do some housecleaning and some weed pulling. . . .I'd like it to be a man.
Agency Woman: I can't discriminate like that. If a woman is qualified for the job, I'm gonna send her.
Mr. S: Well, I can request a man, can't I?
AW: No, you can't.
Mr.S: Well, what if there's heavy lifting? . . .
AW: If I have a woman qualified for the job, then I could send her.
Mr. S: What is the law about how much weight a woman can lift vs. how much a man can lift unassisted?
AW: I'm not aware of any law like that.
Mr. S: Well, you should be, because there are laws.
AW: Well, can you clue me in about that? I haven't heard of it.
Mr. S: I don't know the exact statute, ma'am, and I'm not going to try to quote it for you, because I don't want to tell you something incorrect . . . Well, what about a construction environment that is not conducive to a lady?
AW: Is this a construction site? Because I thought you said it was housecleaning.
Mr. S: No, just hypothetically.
AW: If a woman is qualified to do the work, I can send her to the job. If there's a problem at a construction job, she might have a sexual harassment claim.
Mr. S: Well, what about a locker room?
AW: A locker room is one of the only places you can discriminate because of gender.
Mr. S: So what if I had a job for someone where there were men showering?
AW: I thought this was a housecleaning job.
Mr. S: (very agitated now): Ma'am, there are laws about this and I suggest that if you're going to be in this business, you familiarize yourself with them.
AW: Sir, I'm sorry, but I don't have anyone available for your job. I'm sorry I couldn't be of more help.
I used to work for a literary agency. One of the agency's roles was to accept royalty payments on behalf of authors, take out its commission, and pass on the rest of the payment to the author. This function was routinely performed incorrectly and late.
One year, on top of the usual errors, all authors whose names began with a 'C' received W-2s for exactly twice their actual earnings. The W-2s were issued by the bookkeeper, who was the only person in the entire firm who had access to the relevant information. For some reason, the president of the firm continued to protect the bookkeeper despite her obvious incompetance and total unwillingness to own up to her own mistakes. As the secretary to the president, I had to type the following paragraph in a memo he wrote to the agency:
Bookkeeping is not responsible for errors in accounting to our clients. When those occur -- as they will -- it makes no sense to blame "accounting," since each check is okayed by the responsible agent/assistant before it is mailed.
Just out of college, I was hired by an ad agency in Houston -- a big time, high profile agency with many national accounts.
In my first week, one of the account executives had gotten behind on his work. To cover up, he sent out office memos to everyone on the account except one of the copywriters, blaming the copywriter for not getting his work done on deadline.
The copywriter was a small-built, mild mannered guy about 30. When he got wind of what had happened, he attacked the account executive in the hallway. He grabbed the account executive by the throat and started trying to strangle him with the intention of killing him. The account executive was a bigger guy than the copywriter, but he was caught unaware and was in a lot of trouble. I came out of the kitchen after eating lunch, only to find every guy in the agency trying to separate the attacking copywriter and the account executive. It looked like a scene out of a western, except we were in downtown Houston, in a high-rise office building and all the guys were wearing suits and ties.
I likened working in the ad agency to going to war everyday. Another time, the owner got so mad at a creative director that he slammed the guy's chair across his office. The chair broke a window and fell five floors into the bayou. And I thought advertising was going to be glamorous