Dysfunctional disloyalty standards in employee criticism cases.

• Author: Ristau, Benjamin L.

CONTENTS INTRODUCTION I. THE ROOTS OF EMPLOYMENT LAW AND THE DUTY OF LOYALTY II. THE PUBLIC POLICY EXCEPTION AND THE DIFFERENCE BETWEEN PRETEXT AND DISLOYALTY CASES III. DISLOYALTY STANDARDS UNDER THE NLRA IV. THE PROBLEM OF RELIANCE ON ADISLOYALTY" V. AN OBJECTIVE, BURDEN-SHIFTING SOLUTION CONCLUSION INTRODUCTION

Paramedic Dawnmarie Souza was fired in 2009 after she called her supervisor at American Medical Response a "scumbag" on Facebook. (1) In response, Souza filed a complaint with the National Labor Relations Board (NLRB). American Medical Response justified the firing by citing the Facebook post and additionally accusing her of unprofessional conduct while on a call. (2) The NLRB determined that the firing was illegal because her comment came in the context of an online discussion about supervisory practices a discussion protected by law. The NLRB found that the employer's accusations of unprofessional conduct "appear[ed] to be pretextual." (3) The case settled before reaching an administrative law judge. (4)

The result differed in another case dealing with discipline for employee criticism of an employer. A BMW dealership fired salesman Robert Becker for making two Facebook postings that portrayed the dealership unfavorably, (5) The administrative law judge determined that one posting was protected concerted activity, but the other was not. (6) Not surprisingly, Becker and the dealership disagreed about which post precipitated the firing. The A.L.J. found the dealership's testimony more credible and decided the firing for the unprotected activity was lawful. (7) But the A.L.J. also found the dealership's policy that "[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership" unlawfully chilled protected employee conduct, and the NLRB affirmed that this policy was facially unlawful, (8)

These two examples are part of a larger body of complaints. In 2011 the NLRB received over one hundred charges from employees who were disciplined for criticizing their employers online. (9) The NLRB determines whether to proceed with these complaints after a case-by-case factual analysis, which led one human resources professional to ask for more guidance, saying the NLRB "comes in and is pretty aggressive on these issues, but isn't really clear on drawing lines." (10)

These cases of employers disciplining employees for criticism are hard to decide because they require a balancing of interests. Employers want loyal employees they can trust and want to avoid the damaging fallout that can result from insider criticism. The law recognizes the substantial value of employee loyalty, (11) Employees, on the other hand, want the freedom to criticize their employers. This desire of employees to criticize employers, like the employer desire for loyalty, can serve the interests of society as reflected in the legal protection of certain employee conduct, such as when employees criticize employers while advocating for collective bargaining rights (12) or reporting violations of public policy. (13)

Further, a wide variety of institutions and jurisdictions speak on this issue, adding complexity the law of employee criticism. Employment and agency are generally governed by state statutory and common law, so fifty sets of state legislatures and courts have addressed (or failed to address) the underlying question. Federal statutes (and for public employees, the Constitution) apply to certain areas of employment law, adding the views of Congress, federal courts, and executive agencies to the already clouded picture.

Despite this murkiness, cases of employees disciplined for criticism can be divided into two classifications: those dealing with pretexts or mixed motives, and those dealing with disloyalty. In a pretext case, the employer puts forward a bogus justification for disciplining the employee when the discipline was actually in response to the criticism. This is how the NLRB viewed American Medical Response's justification for firing Souza. In a mixed motive case, the employer has both legitimate and illegitimate reasons for the discipline. For instance, the BMW dealership could legally fire Becker for criticism of the dealership's ineptitude in allowing a Land Rover to roll into a pond because this did not relate to a term or condition of employment, but Becker's criticism of low-quality food served to customers at an event was legally protected because the dealership's customer service or lack thereof affected Becker's commissions.

When employees who have engaged in both protected employer criticism and other unprotected conduct challenge the imposition of discipline, the seemingly crucial "distinction between a pretext case and a dual motive case is sometimes difficult to discern." (14) But this Note argues that courts and agencies are well equipped to handle such cases because courts have a number of tools to determine the difference, if any, between the asserted reasons for termination and the true reasons. One tool is the burden-shifting approach adopted by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle. (15)

Under the Mt. Healthy test, the initial burden is on the plaintiff employee to demonstrate that the employee engaged in legally protected conduct that was a "substantial" or "motivating" factor in the discipline. (16) Then the employer has the opportunity to prove that it would have "reached the same decision ... even in the absence of the protected conduct." (17) This approach recognizes "the practical reality that the employer is the party with the best access to proof of its motivation." (18) And there is the added benefit that under the Mt. Healthy test "there is no real need to distinguish between pretext and dual motive cases" (19) it brings to the fore the actual motivation for the discipline whether the asserted motive is wholly without merit, meritorious, or somewhere in between.

This Note argues that the real problem lies with the category of employee criticism cases where the decision is based on disloyalty. In these cases both the employer and employee agree that the criticism motivated the discipline. The employee argues that the criticism is protected, but the employer counters by saying that the employee's lack of loyalty deprives the conduct of protection. This Note argues that courts are not well placed to determine what disloyalty means, and as a result, the decisions focusing on disloyalty are inconsistent. Courts should instead focus on whether conduct by employees causes actual detriment to the employer. This more concrete standard would provide firmer footing for these difficult judicial determinations than the dysfunctional standard of employee disloyalty.

The contours of the law of employee discipline for criticizing employers are shaped by its most prominent form, termination, and in turn by the at-will employment doctrine. Most employees in this country are employed at will, meaning that their employers can fire them for any reason. (20) Termination of at-will employment frequently follows after employee criticism of employers. And no firing of an at-will employee will be wrongful unless it fits into an exception to the at-will rule. Therefore, as background, this Note begins with a discussion of the at-will employment doctrine.

Part I addresses the roots of employment law and explores the origins of the employment-at-will doctrine and the development of some exceptions to the rule. Part II illustrates the difference between pretext cases and disloyalty cases. Part III addresses judicial reliance on disloyalty in deciding employee criticism cases under the National Labor Relations Act. Part IV explains why this reliance is misplaced. Finally, Part V suggests that by looking to the pretext cases, courts can develop a better methodology for resolving disloyalty cases.

1. THE ROOTS OF EMPLOYMENT LAW AND THE DUTY OF LOYALTY

   Employment law in the United States descended from the English common law of master and servant. (21) There was a presumption in English law that, unless otherwise specified, employment contracts lasted one year (22) This rule was a reflection of loyalty and fairness in a preindustrial, agrarian society (23)--what Blackstone called "a principle of natural equity." (24) It would be unfair for the master to dismiss the servant in winter when there was not much work in the fields. Likewise, it would be unfair for the servant to be supported by the master during the lean months of winter and leave before the heavy work of summer.

   The law of employment in the United States diverged sharply from the old English rule in the late nineteenth century with the rise of the employment-at-will doctrine. (25) This rule has a "curious history." (26) It first appeared in an 1877 treatise by Horace Gray Wood. (27) Later commentators suggested that case law in 1877 did not support this rule, but this is debated. (28) Commentators posit that the rule may be the "product of the American frontier mentality" (29) or "the natural offspring of a capitalist economic order" (30) or the result of increased industrialization. (31) Whatever the provenance of the rule, it became the clearly established majority rule by the early twentieth century, (32)

   Under this American Rule of employment at will, an employer may terminate an employee at any time for any reason, and an employee may leave at any time for any reason. (33) Employees are told "if you don't like your employer, don't criticize or complain leave." (34) This strict rule often led to harsh results for employees, (35)

   In the late 1970s and throughout the 1980s, state courts reacted to the harshness of a strict at-will rule and began to fashion common law exceptions (36) By 1993, the courts of forty-eight states had created significant exceptions to the at-will default rule. (37) The three most common judicial exceptions are the...