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We know that your employer can punish you for things you post on social media. Play stupid games when stupid prizes happens all the time, But what about when it's a work related safety issue. So this guy, Jason Thompson, he's a twenty year plus USPS mail carrier and Fairfield suspend without pay because he posted safety concerns on social about winter storm conditions on Facebook.
They made me show up. And the narrative of the story is really quick.
Is that he shows up to work and notice that the lots are poor ploy I don't want to say that, they're not plowed really well. And the postal trucks are bared in snow. They said, hey, there's no packages here to the lever because of the storm. But you've got to dig your cars out by hand. We don't have shovels or anything for you, but yeah, get in there and start. You lean into it, get onto your hands and knees and shovel off these trucks that aren't going
to run anyway. And there's nowhere to put the snow and it's a mess. And yeah, now he's sixty years old and The end result is, well, we hear people having heart attacks all the time because of this. Is that in the scope of his job? And he would say, no, it's uh, they made cuts and can't have anyone come and properly clean off the vehicle so we can do our jobs. And he bitched about it on Facebook, the age old American sport of complaining about your boss. Well,
it led him to an unpaid suspension. The question is is he a whistleblower and is he protected? And what are your rights if you run into something like this? George Rule is here. He is the first and foremost the employment law attorney in Cincinnati with freaking Myers and rule George, welcome back, How are you?
How's life?
Son? Hey, Sonny, thanks for having me on. I'm well than you.
Yeah. I don't think you guys are involved. Maybe you guys are involved with this case. I don't know. But does this fall into the guys of whistleblower complaints? And you know he puts it up on social media about safety conditions? Is that qualified? The safety issues? Complying is whistleblower activity? And keep in mind this is federal law and he works for a federal agency.
Yeah, Uh.
Generally speaking, whistle blowing activity usually involves an employee disclosing information that they reasonably believe is evidence of illegal, unethical, or unsafe activity. Uh. And and so obviously his complaints here uh do have some relationship to unsafe activities.
Uh.
You know, I think there is a question in terms of the manner in which he disclosed, you know, generally speaking, a complaint to your employer, uh, or an agency such as OSHA. OSHA is a federal agency that enforces workplace safety laws, so certainly could be protected activity. Also, Uh, it might be protected concerted activity under the National Labor Relations Act because he is talking about his terms and conditions of employment, So there might be some additional protection there.
Yeah.
As a postal work he's protected by union, although he has been suspended without play they called an emergency placement without pay pending an internal investigation. And of course the Postal Services well, no, employee safety is our top priority.
That's hard to argue though.
If you've got your sixty year old postal workers who normally sit in a truck and deliver mail out with their hands and I don't know, using dust pans and probably coffee can lids to dry and clear snow out from around your vehicle. And keep in mind the snow was plowed in a fashion that all the snow from the lot is now pushed up against where the vehicles are, so it's several feet of snow he got to dig out.
Yeah, that certainly, and I believe he was sixty years old. Not really an age thing, but you know, physical work certainly could be an employee safety issue.
Yeah, not sure if that covers it.
Are there specific whistleblower protections that apply to USPS employees? And this is kind of getting granular here, and you may not know the answer to that, but if you're a federal employee with a union, are you covered in there is or something else?
Well?
Interestingly, OSHA or the Postal Service is one of the few federal agencies that's covered by OSHA as far as workplace safety. Their most federal employees are covered under something called the whistle Blower Protection Act, so you know there there are a ton of different whistle blower laws. OSHA actually has a whistle blower Protection program that covers twenty different.
Statutes, so.
You know, in order to have protection as an employee, what you are complaining about has to be legally protected activity, and often you need an underlying statute to provide that protection. So you know, it is kind of a patchwork of laws and confusing. So you know, it's it's something where you probably need some legal advice to know whether you're protected.
What your lawyers at George Rul did, do you see this as undue retaliation for protected activity?
It certainly, it certainly could be.
You know, he got he got suspended off of work. It's interesting, as I understand it from from looking at some of the articles about it. Uh, the Postal Service asked him to come back, uh several hours after he was suspended, which you know, sort of suggests they knew it was potentially a problem to put him, you know, put him off work.
Uh.
So I certainly think, uh, this is one where he does have some legal protection. It didn't seem to be just an individual gripe you know he was he was when he made his post. As I understand it, he said, you know, I know I'm not the only one who has this concern, So you know, generally it does seem like he was not only speaking for himself, but his coworkers and the working conditions. So you know, if it's not if it's not whistle blowing, uh, it certainly might be uh consertive protected act.
Well, it's interesting because I know Fox nineteen broke the story and a couple of the media outlets had obviously we're talking about this morning with George Rule, employment law attorney from freaking Myerson Rule here in Cincinnati, and Uh, as soon as that happens, it's like, well, you know, well, why don't you come back to work? I mean, it's
interesting how that plays out. Does that indicate though, from a legal perspective, that maybe they got this wrong at first blush that they're backing off so quickly.
Well, it certainly appears like that.
Now obviously bringing him back after a few hours, that would that would limit the adverse impact of a of a suspension, Uh, you know, only only losing uh you know, maybe two three hours.
Hours of pay.
But you know, I certainly I think most employees who speak out, uh, you know, do have a concern Hey if I put a target on my back by you know, disclosingess. So you know, it's not only the immediate suspension, but kind of how he's treated in the future. So yeah, that's see.
Uh so this guy is postal worker Jason Thompson is told to take down the post or there's gonna be repercussions. He didn't, and the repercussions where we suspend you without pay. Talk about a wonky constitutional First amendmentor called prior restraint?
Was prior restrainted play here?
You know, I don't know that one's funny.
That's a good question, right, I was like, well.
I mean it's it's a cons social rite in many maining says we prevent you from doing something we don't like in the first place. And so the legal standard about his speech was they said it was a matter of public concern, the public somehawser I don't know if I buy the this is an issue of public concern.
This is a workplace safety issue.
Yeah, I mean whether or not it's protected on the First Amendment.
Uh, you know, that's.
You know, that's a maybe a complicated legal question. You know, is he is he talking as a public employee or a private citizen?
Uh?
You know, I certainly think there's an angle that would be a matter of public concern.
Uh.
You know, if certainly during a level two snow emergency, I think there's a question of whether or not, you know, postal workers need to.
Be on on the road. Uh. It's interesting.
The the Postal Services statement.
In response kind of touched on that in terms of saying, hey, you know people need their medications.
Uh, you know government correspondence. So you know, there's an argument from the employer there. You know that there's a there's a need for for the postal workers to be on the on the road.
And right delivering our right.
But at the same time they said that, I guess the trucks that were bringing the mail in where there are no.
Packages to deliver that day, So why we digging our trucks out if we can't move.
It's like, okay, well we're going to show up and make you dig our trucks out because maybe that'll save money.
I don't know about that.
On the other side of this charge rule, talk about the burden of proof that the Postal Surface had had they suspend him, and what events they have that that backs their claim up. We've talked about this case Jason Thompson, and it's a pretty good claim here.
This is a whistleblower type of issue.
But how does the United States Postal Service affirmatively defend themselves.
Well, I think you know, again, they would look at hey, is this just an individual employee ripe, you know, looking at the manner in terms of, you know, how he communicated this, did he talked the management to express his concerns initially at the outset? You know, I think the postal Service would say, hey, look, this is a you know, a couple hours suspension, so is it is it really
an adverse employment action? So you know, there would be some legal defenses there, but but certainly I'm not sure how the postal Service could argue that the suspension had anything to do other than than the post itself.
Yeah, and you know.
The content and the post being about potentially unsafe working conditions, So that seems to be a tough argument.
Right, And it also feels like both sides, at least the post service wants us to go away because they brought brought them back in hours later, and it's like, well it was maybe it was a misstep on our part here, We're going to have to clarify our policies and like, but what is the takeaway for someone listening to is going, well, I'm not a postal worker, I don't have to dig trucks out or maybe I do, but I'm not in a union.
When you should? You think twice and what what?
And I guess what are the boundaries posting stuff on social We see people fired all the time, right, George, because they do something on social or say, say and they want to get fire because it makes their company look bad, which is perfectly when they're right to do so.
But what are the limits of that?
Yeah?
So certainly if you are publicly disparaging your employer, if you're you know, posting your individual rights online, that can be ground to get you discharged.
Uh.
You know what you are speaking out about, what you're communicating, uh is important? You know, are you exposing something unsafe?
Uh? You know, unethical? Illegal?
Uh? That type of speech tends to be protected. Is it a matter of public interest?
You know? Is there is their First Amendment issue?
And you know then are you are you talking about the terms and conditions of your work?
Is it you know?
Is it a collective discussion that might be protected again under the national wave relationship?
Right?
And the other element of this too.
I use another example We've seen this happen before, where somebody is a fast food worker and they're doing something in the kitchen that you know, could wind up getting a customer sick, doing something stupid, and they post it and they wind up getting fired. They could turn around say, well, I was just exposing this because you know, as a whistleblower. Well,
it's different if you're participating in it. Is the crux of the their argument or their defense, going, hey, I presented this to management, showed them the video, and they didn't do anything. If you post it on social after they refused to act on the complaint, does that then make it a whistleblower complaint?
It could?
Yeah.
I mean going to your employer first and raising the concern, I think would would would heighten the protection, right because you're.
You know, it shows you have an interest in you.
Know, protecting folks I guess from getting sick in that case.
Right at the very least, it sounds like, you know, the common sense thing to do, outside of the legal anglings of this is to simply give the employer, give your employer a chance to remedy the situation.
Yeah, I think that that certainly establishes an element of good faith rather than just you know, trying to cause problems right, if if you're trying to address the problem, uh, you know, make.
Somebody aware of it.
Yeah, that's and that's just common sense that has something to do with the law. The first step is going to your boss, your employer, saying, hey, here's this is a problem. Why why are we doing this? Why am I shoveling snow art? Or why is this person I don't know, doing something a kitchen, at a at a fast food restaurant they shouldn't be doing. If they ignore that at workplace safety issues, then okay, then then you know you post it on social it's a different story entirely.
All right, Well it's an interesting interesting case for sure. George Rule at freaking Myers and Rule employment lawyers here in Cincinnati. All the best, George, thanks for jumping in this morning.
Hey, thanks, good to talk to you.
Yes, sir, be well, hope you're well. We'll chat again soon because there's really something popping up in the workplace, that's for sure. There's news on the way in just a few minutes here on seven hundred WLW. And when we return. Now it's rather cold, but you may have a little cabin fever.
I know, I do.
We actually with my wife having her knee done, and finally venture out and actually eat a meal out of the Sloan Castle.
Last night We're like, we got to get that out of here. A little bit of cabin fever.
So if you want to venture out, dip that toe in the cold, what to do, where to go, what to see, what to eat, what to drink? Ali Martin in the Local Loop is coming up in just minutes here on The Scott's Loan Show on seven hundred w all Day