Releasing Confidential Information

Dfox

I have an employee lets call her Pat that was instructed not to discuss her write up with other employees. Pat proceded to discuss her issue with another employee who we will call Sue. Sue has expressed her discomfort with the negative attitude of Pat. Sue claims Pat was discussing other confidential issues with her also. Pat has an attitude issue, and has been written up for her negativity. Pat was told that further actions of negativity with other employees could result in her termination. The sup now wants to term. Any opinions or legal issues?

NeedCoffee

Was Pat being negative with Sue this last time, or just discussing issues? If you're going to term for "further actions of negativity with other employees," you need to make sure the content of this conversation and decide whether it falls under your definition of negativity.

If it is in the same line as things she's been written up for previously, I'd say you're OK to term as you have applied and followed the disciplinary policy set in place, without discrimination.

System

There's always a concern when you take disciplinary action against an employee for engaging in conversation about work-related issues. The National Labor Relations Act protects employees' rights to engage in "concerted activities for the purpose of...mutual aid and protection." Accordingly, the National Labor Relations Board has held that prohibiting discussions among employees about their wages or the terms and conditions of their employment is unlawful (unless the employer has a legitimate and substantial business justification for the rule). The Board has held on several occasions that this includes discussions about disciplinary actions taken by the employer, and it has held that blanket rules prohibiting such discussions constitute an unfair labor practice.

Of course, the analysis in any given situation always depends on the particular facts and circumstances of that situation, but you should be aware of the risk that what you consider "further actions of negativity," the NLRB may consider concerted activity taken by the employee for the purposes of expressing concern about the terms and conditions of her employment. I'd be especially concerned about the fact that Pat was told that she couldn't discuss her write up with other employees (presumably under any circumstances).

Kimberly A. Klimczuk, Esq.

SKOLER, ABBOTT & PRESSER, P.C.
Editors of the Massachusetts Employment Law Letter
(413) 737-4753
[email]kklimczuk@skoler-abbott.com[/email]

This message is not intended as legal advice and does not establish an attorney-client relationship. Readers of this email are encouraged to contact their labor and employment counsel for further information.