Adrian Duane had worked for IXL, a Silicon Valley educational technology company,35 for about a year when he got into a dispute with his supervisor over Duane's ability to work flexible hours after he returned from medical leave following transgender surgery. Duane posted a critical comment on Glassdoor.com after he said his supervisor refused to accommodate a scheduling request. Duane's critique said, in part: "If you're not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softballthen you're likely to find yourself on the outside. . . . Most management do not know what the word 'discrimination' means, nor do they seem to think it matters."36 According to court documents, Paul Mishkin, IXL's CEO, confronted Duane with a printout of the Glassdoor review during a meeting about his complaints, at which time IXL terminated Duane. IXL claimed the derogatory post showed "poor judgment and ethical values." Security had already cleared out Duane's desk and boxed his personal effects, and he was escorted from the premises. According to IXL, the company had granted Duane's requests for time off or modified work schedules and welcomes all individuals equally regardless of gender identity. The NLRB heard Duane's case. Judge Gerald M. Etchingham said he did not believe the post was part of a concerted or group action among Duane's fellow employees at the company, and therefore it was not protected under the NLRA, because it was not an attempt to improve collective terms and conditions of employment. Furthermore, Etchingham said Duane's post was more like "a tantrum" and "childish Chapter 7 What Employees Owe Employers 219 The rules related to social media are evolving, but applicable laws do not generally distinguish between sites or locations in which someone might criticize an employer, so criticism of the boss remains largely unprotected speech. As discussed earlier, employees can go online and post information about wages, hours, and working conditions, and that speech is protected by federal statutes. So, although some general complaints against employers are not protected under the First Amendment, they may be protected under the NLRA (because arguably they may be related to terms and conditions of employment). However, most courts agree that statements personally critical of the boss or the company on a basis other than wages and working conditions are not protected. Obviously, there is no protection when employees post false or misleading information on social media in an attempt to harm the company's reputation or that of management. Whistleblowing: Risks and Rewards The act of whistleblowinggoing to an official government agency and disclosing an employer's violation of the lawis different from everyday criticism. In fact, whistleblowing is largely viewed as a public service because it helps society reduce bad workplace behavior. Being a whistleblower is not easy, however, and someone inclined to act as one should expect many hurdles. If a whistleblower's identity becomes known, his or her revelations may amount to career suicide. Even if they keep their job, whistleblowers often are not promoted, and they may face resentment not only from management but also from rank-and-file workers who fear the loss of their own jobs. Whistleblowers may also be blacklisted, making it difficult for them to get a job at a different firm, and all as a result of doing what is ethical. Blowing the whistle on your employer is thus a big decision with significant ramifications. However, most employees do not want to cover up unethical or illegal conduct, nor should they. When should employees decide to blow the whistle on their boss or company? Ethicists say it should be done with an appropriate motiveto get the company to comply with the law or to protect potential victimsand not to get revenge on a boss at whom you are angry. Of course, even if an employee has a personal revenge motive, if the company actively is breaking the law, it is still important that the wrongdoing be reported. In any case, knowing when and how to blow the whistle is a challenge for an employee wanting to do the right thing. The employee should usually try internal reporting channels first, to disclose the problem to management ridicule" of his employer rather than speech protected under Section 7 of the NLRA. In other words, this was not an attempt to stimulate discussion but rather an anonymous one-way (and one-time) post. "Here, Duane's posting on Glassdoor.com was not a social media posting like Facebook or Twitter. Instead, Glassdoor.com is a website used by respondents and prospective employees as a recruiting tool to recruit prospective employees."37 The NLRB decision is an interesting step in the development of the law as the NLRB tries to apply the NLRA's protections to employee use of social media. Duane has a pending Equal Employment Opportunity Commission lawsuit alleging employment discrimination under Title VII of the Civil Rights Act of 1964.

Critical Thinking

What ethical and legal obligations do employees have to refrain from badmouthing their employers in a fit of pique, especially on the firm's own website?

Should management allows employees to criticize the company without fear of retaliation? Could management benefit from allowing such criticism? Why or why not?