According to the National Labor Relations Board (NLRB), all employees now have the right to have a co-worker of their choosing present at any meeting which might result in disciplinary action. Unionized employees have long had the right to have a union representative attend such meetings. In a decision involving the Epilepsy Foundation of Northeast Ohio, the NLRB ruled that a non-union employee, just like a union employee, can insist on having a friend or other co-worker present at any interview or meeting that might lead to the employee being disciplined. Consequently, it is an "unfair labor practice" for an employer to fire an employee for refusing to be interviewed without the presence of a co-worker of his or her choosing.
The Epilepsy Foundation is a nonprofit agency that provides training for people with epilepsy. One of its employees was having conflicts with his supervisor, and the Foundation asked to meet with him regarding his conduct. The employee refused to meet with management unless he could have a friend (who was also having conflicts with management) present as a witness. The Foundation insisted on meeting with the employee alone, and discharged him for gross insubordination when he failed to attend the meeting.
The National Labor Relations Act guarantees that "employees shall have the right . . . to engage in concerted activities for the purpose of mutual aid or protection." Because this statutory right to engage in "concerted activities" does not depend on whether or not the employee belongs to a union, the NLRB ruled that all employees can have a co-worker attend a disciplinary meeting for the purpose of "mutual aid or protection." Because the Foundation discharged the employee for insisting on having his co-worker attend the meeting, the NLRB ruled that the Foundation committed an unfair labor practice. The Foundation was ordered to reinstate the employee with backpay.
The NLRB's new ruling is controversial and will likely be appealed to a federal court, which may reverse the decision. However, for the time being, employers should not insist on meeting with an employee alone if he or she requests that a co-worker be present. Either the meeting should be cancelled or the requested co-worker be allowed to attend. Two managers should also attend to confirm that the employee was not denied any of his rights. If a co-worker does attend, both the employee and the co-worker should sign a form stating that the employee has been provided with a witness of his or her choosing. Finally, any discipline, even if short of termination, of an employee for refusing to attend a disciplinary meeting in the absence of a requested co-worker would violate the National Labor Relations Act.
The CompuServe bulletin board was part of a website that Continental crew members could use to learn their work schedules and flight assignments. The bulletin board functioned as a "virtual community" of Continental crew members, allowing them to post messages and exchange ideas and information. While Continental did not require crew members to use the CompuServe website, it was made available to them as a convenient way to obtain essential work-related information.
The New Jersey Supreme Court ruled that if internet websites, including chat rooms and bulletin boards, are "integrally related" to work, they become a "virtual" part of the workplace: "Although the electronic bulletin board may not have a physical location within a terminal, hanger or aircraft, it may nonetheless have been so closely related to the workplace environment and beneficial to Continental that . . . [it] should be regarded as part of the workplace."
If a website is sufficiently work-related, the employer is just as responsible for employees' conduct at that location as it would be at any ordinary workplace location. The employer would "have a duty to monitor e-mail posting to ensure that employees are not harassing one another." Once the employer knows or should know of harassing behavior at a virtual workplace, the employer has a legal duty to remedy the harassment and would be liable if it fails to do so.
The New Jersey Supreme Court's decision poses serious issues for employers. While employers do not normally monitor employees' private internet communications, it may not be clear when such communications are sufficiently work-related to become the responsibility of the employer. With the increased use of the internet and e-mail, the workplace may no longer be limited to its traditional physical location and may extend into cyberspace. Employers should implement policies regarding employee conduct on the internet. Employers should also assume that if they make a website available to employees for work-related purposes, the website may be treated as part of the workplace and they may be liable for misconduct that occurs there. Finally, because of the national and international dimensions of the internet, employers (and co-workers) should be aware of the risk of being sued in unexpected places.