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September 2015 Archives

Free Speech in the Workplace-No Such Thing!

A Philadelphia teacher was fired by the school district for writing a blog in which she called her students "disengaged lazy whiners" and "disobedient, disrespectful oafs." She also wrote "[t]hey curse, discuss drugs, talk back, argue for grades, complain about everything, fancy themselves entitled to whatever they desire, and are just generally annoying." The teacher sued the school district to get her job back asserting that her right to free speech had been violated when she was terminated for her words. The U.S. District Court for the Eastern District of Pennsylvania dismissed the case finding that the school district was entitled to terminate. The Third Circuit Court of Appeals upheld the lower court ruling finding that the school district's interest in preserving the trust of its students and parents outweighed the teacher's right to free speech. One Appellate Judge dissented finding that there was enough question of fact on the reasons that motivated the termination to warrant a jury trial as the teacher had presented evidence that she might have been fired for media interviews she did after the blog went viral.  Had the full Appellate panel agreed that the termination was in retaliation for things she said in media interviews, she might have had a chance.  However, the two other judges did not consider that evidence to have bearing on the issue of why she was terminated. So, what should we be allowed to say about our employers on our own private social media sites? Not much, I will caution you. Many amongst us fall into the same trap of believing that our First Amendment rights are absolute protection, allowing us to say whatever we want whenever we want to say it. Those rules don't apply when you work as an "at will" employee where the employer can terminate you for any reason as long as it isn't a discriminatory reason. The employer can certainly terminate you for making disparaging statements about the company, a supervisor, a co-worker, a customer, etc. You are going to be especially susceptible if you work for a company that handles sensitive HIPAA information that you may inadvertently reveal. Your best practice is to avoid talking about work on personal blogs entirely. Why take the risk? You should maintain complete separation between your work and personal lives so as not to tempt fate. You should presume that everything you post on the internet, even if its on a personal Facebook account just for "friends," is now in the public domain for all and is likely to make its way back to your employer.  Also follow the age old adage "if you have nothing good to say, don't say anything at all."

Maternity Leave: To take or not to take...

Marissa Mayer, the CEO of Yahoo, just announced her pregnancy with twins and also that she will take a shortened leave and return to work within two weeks after delivery. For this, she is being criticized for this personal decision despite the following facts: (a) she is the CEO of Yahoo, who is undergoing a huge restructuring right around the time that her twins will be born; (b) she is one of the highest paid CEO’s in the country, earning $41.2 Million a year; (c) has instituted one of the most generous maternity/paternity leave policies in corporate America, with women getting 16 weeks paid leave and men getting 8 weeks paid paternity leave; and (d) this is her personal decision and not something that will change the ability of women to take maternity leave should they want to.The brunt of the criticism against her is focused on what kind of message she is sending to women in the workplace by not taking full advantage of the maternity leave afforded to her. But, since actions speak louder than words, lets look at what she is actually saying:
  1. Knowing her role and job responsibilities in the coming months, she would like to return to work as soon as possible because she knows that it is a critical time for her company and that she is an integral part of the restructuring process.
  1. She is clearly in favor of women and men taking leave after the birth or adoption of a child as she has implemented generous leave provisions at Yahoo.
  1. She is also saying that just because you are entitled to certain benefits in the workplace doesn’t mean that you have to use them. It is unlikely to find men or women at her level who take the full advantage of their vacation or maternity leave time or who don’t work after hours and on weekends.
I have an incredible amount of respect of this woman, who through her actions has supported women in the work place but who also treats her company as though she is the owner and founder with a personal vested interest.   As many entrepreneurs will tell you, including myself, owning your own business isn’t just a job, its one of my children. I devote as much love, nurturing and attention to it as I do to my actual children (and I am a great mom!). It is unrealistic for women to believe that they can hold those types of higher-level positions and take 8/16 weeks off from the job just because they are women, especially at a critical time.While the right to take such types of leave is an important protection afforded to women, not taking it shouldn’t be a reason to criticize. Women in the work place should not be judged for these personal decisions. Rather, the only benchmark by which women should be evaluated is their work performance. All the rest is just unnecessary noise.

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