About a year ago, a media organization fired one of its reporters after it found his ‘inflammatory’ Instagram posts (NSFW) showing clips of his off-the-clock standup comedy routines.
Last week, an arbitrator, who found some of the reporter’s jokes ‘funny,’ ordered the company to rehire him.
Why? I’ll explain by taking it from the top.
According to this report from Philadelphia Magazine, “by all accounts, [the reporter] did an excellent job,” and had received a recent performance review “describing him as ‘Fully Successful’ in his role and giving him high marks all around.”
But things apparently changed when the company learned from the reporter’s Instagram that the reporter was performing as a standup comic.
This Vice article, citing arbitration documents, described the reporter’s comedy as “focused on his ‘experiences as an Arab American, raised in a Muslim family, his experience in the U.S. Marine Corps, and his reporting while he was in the Middle East,’ including embedding with Syrian opposition fighters and covering ISIS in Iraq.”
There were also jokes about Asians and crude references to female genitalia, reported Philadelphia Magazine.
According to the reporter himself, the employer labeled him “racist, sexist, every name in the book.”
Then, they fired him.
In most workplaces, employees are at-will — they can be fired for any reason or no reason at all. Also, most states do not have off-duty conduct laws that limit employers’ ability to fire individuals who engage in lawful conduct outside of work. So, ‘racist’ and ‘sexist’ are more than enough reasons to cut ties.
But this situation is different.
The reporter was part of a union with a collective bargaining agreement with the employer. The collective bargaining agreement raises the bar for terminations, requiring just cause. So, the union grieved the termination on the reporter’s behalf.
And late last year, the arbitrator sided with the reporter and ordered his employer to reinstate him with full seniority and back pay.
According to Philadelphia Magazine, “the arbitrator broke down each joke in question to an almost ridiculous level of analysis” before explaining why just cause did not exist here:
[A]pplying the extraordinarily low bar for “inflammatory,” I have not found that the violations come close to being egregious, as claimed by [the employer]. In addition, I found that [it] deprived him of due process by failing to get his side of the story before discharging him, and by failing to include [the reporter’s supervisor] in the decision-making process.
Given the heightened “just cause” standard, it’s curious that the company seemingly bypassed any effort to resolve the problem before terminating the reporter’s employment.
In certain situations, a measured approach can also benefit employers of at-will employees. Where appropriate, consider confronting the employee about social media posts and asking for their removal. Termination would follow if the issue remains unresolved.