How Much Can Employers Limit Workers' Behavior?

Guests

Steven Greenhouse, reporter, New York Times
Lily Garcia, employment attorney and contributor, Washington Post jobs section

Keith Olbermann was suspended for donating money to political campaigns. A New Jersey transit employee was fired for burning a Koran. A Connecticut woman was fired for complaining about her boss on Facebook. Guests discuss to what extent employers can limit what their workers say and do.

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NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan in Washington.

MSNBC's Keith Olbermann returned to the air this week after a brief suspension. The host of "Countdown" faced discipline for a violation of the network's code of ethics when he donated money to three political candidates.

A New Jersey transit employee was fired earlier this month for burning a Quran. NPR canned Juan Williams after what network executives deemed inappropriate comments about Muslims.

Just last week, the National Labor Relations Board, the independent government agency that mediates workplace disputes sided with an employee who got the sack for trashing her boss on Facebook.

All of which may make you wonder what exactly can I say and do and not get punished at work for it? And it turns out, it depends. Employers, where do you draw the line? Our phone number is 800-989-8255. Email us: talk@npr.org. You can also join the conversation at our website. That's at npr.org, click on TALK OF THE NATION.

Later in the program, the last patrol, as a platoon in Afghanistan hands over a dangerous sector to a new unit. But first, free speech and the workplace. We begin with Steven Greenhouse, who covers labor issues for The New York Times, and joins us from our bureau in New York. Steve, nice to have you back on the program.

Mr. STEVEN GREENHOUSE (Correspondent, New York Times): Nice to be here, Neal.

CONAN: And tell us about this Facebook case.

Mr. GREENHOUSE: So, an emergency medical technician in Connecticut was quite angry at her immediate supervisor. And she got onto her Facebook page and said some quite unkind things about him, including that he's the equivalent of a psychiatric patient. And then, some of her coworkers gone on her Facebook page and also complained about how bad he was.

CONAN: Mm-hmm.

Mr. GREENHOUSE: Now, generally, one might think one could get fired for essentially cursing at one's boss or telling off one's boss. But the National Labor Relations Board said that this one protected activity, and the company was wrong to fire her, because the law protects workers from engaging in concerted activity, whether it's discussing wages or working conditions or a lousy boss, or forming a union.

So with these several coworkers, you know, speaking together on - or communicating together on Facebook the - NLRB is basically saying it was like talking at the watercooler, talking at a union meeting, they're talking about working conditions together, and that's protected, concerted activity.

CONAN: And it's interesting, listeners may say, well, wait a minute, where does free speech come into this?

Mr. GREENHOUSE: Well, free speech, the First Amendment only covers government action. So generally, private sector employers are not covered by the First Amendment. I often tell people your employer can fire you because it doesn't like the color of your shoelaces, doesn't like the color of your lipstick, and doesnt like how you pronounce certain words.

Employers can't fire you for specific reasons: the color of your skin, your religion, that you're filing a complaint with, say, the Equal Employment Opportunity Commission, but they can often fire you for what you say, unless it's considered protected activity, which is covered protected by the National Labor Relations Act.

CONAN: And public sector employees are held to a different standard?

Mr. GREENHOUSE: Yes, it's a little murkier, Neal, about the rules of public sector employees. If a public sector employer says, I'm going to vote for John McCain or John Boehner or Barack Obama and his or her boss fires her or him for that, that would probably be seen as a violation of the First Amendment because the government is taking action against free speech.

However, if, you know, a government employee does something that really, you know, betrays trust or is direct insubordination or helps an enemy or endangers a nuclear power plant, then the government might say, you know, we have ample cause to fire that person for what he or she said despite, you know, the First Amendment protections of free speech.

CONAN: And obviously, that would extend to members of the military, who -there's a chain of command, that whole thing. We remember Stanley McChrystal, the commander in Afghanistan. He was allowed to resign rather than get fired. But I guess he could've been fired.

Mr. GREENHOUSE: Yes. I mean, there's almost a hierarchy of speech rights. You know, private sector workers have the least rights here. The employer is free as to fire someone - regular, public sector employers have more speech rights protected somewhat by the First Amendment. And people in the military have -I'm getting this backward. People in the military have less speech rights than normal government employees because they're under, you know, strict discipline. They cannot do anything insubordinate. They cannot do anything to prejudice the good order or discipline of the armed forces. They cannot do anything that would bring discredit upon the armed forces. You know, they can't say things that might signal, to the enemy, where troops are located.

CONAN: And as we go through all of that, then there are private sector employees who, well, like you and me, are under the strictures of an ethics guideline. There's one here at National Public Radio. I suspect there's one at The New York Times, too, about the size of a phone book.

Mr. GREENHOUSE: Yes. We at The New York Times, I believe in NPR, you know, we have unions and that set certain rules about when or when - when you can be disciplined, when you cannot be disciplined. And, you know, we have ethics rules, as MSNBC does, that we're not allowed to give to political campaigns. And we can get disciplined if we do that. And clearly, that's what happened with Keith Olbermann.

CONAN: So what we want to hear today is from employers. Where do you draw the line with your employees? What's allowed, what isn't? Give us a call: 800-989-8255. Email us: talk@npr.org. And we'll start with Carrie, and Carrie is on the line with us from Palm Beach - West Palm Beach, excuse me.

CARRIE (Caller): Hi. I'm an - my husband and I are employers. We have a small business with about four employees. And I don't think that they should say anything on Facebook that they wouldn't say to us in person.

CONAN: So if they think you're a terrible employer and are abusing your employees, if they say it on Facebook, that would be grounds, do you think, for some discipline?

CARRIE: Yeah. I mean, if they - you know, they're putting it out on Facebook. If they want to talk to somebody, you know, on it - about it on a phone conversation, one-on-one. But, you know, the Internet is different. It's a public forum, and everybody knows that now. And I think if they're, you know, going to go around saying that, they have to expect, you know - I mean, granted most of our employees are friends of ours on Facebook. So, I mean, we would know.

CONAN: You would know. But so would a lot of other people. You'd think it might hurt the reputation of your company?

CARRIE: Yes, certainly. We're both attorneys. And, you know, I mean, someone going around posting, you know, comments about us in public is, you know, hurts our ability to do the business that we do.

CONAN: Steven Greenhouse, she's got a point.

Mr. GREENHOUSE: Yes, Carrie, you have a point. But there's also the language of the law. And you're a lawyer and you should perhaps be familiar with it. Just like in the 1930s or '40s, people might have gone to union meetings to meet and complain about their bosses. They never complain about you. I'm sure you're a good employer, Carrie. But now people might not want to, you know, leave their houses for meetings. And one way that people meet nowadays is, you know, in -on the Internet, virtually.

And the Facebook, in ways, replaces the union meeting of old. And, yes, it is a public forum, just as an old union meeting was a public forum. And the folks at the National Labor Relations Board say that worker - you know, the law is workers have a right to engage in, and I quote, you know, "concerted, protected activity" to discuss things like wages and working conditions or how good or bad their boss is. So...

CARRIE: Right. But for the purpose of unionizing and, you know...

Mr. GREENHOUSE: Not just unionizing, Carrie. To discuss working conditions in general.

CONAN: Hmm.

CARRIE: Hmm.

CONAN: So you better be nice.

(Soundbite of laughter)

CARRIE: Thanks for taking my call.

CONAN: Okay, Carrie.

CARRIE: I don't know how I feel about that. I might fire them for the color of their shoelaces...

(Soundbite of laughter)

CONAN: That's what you...

CARRIE: ...if they say a lot of bad things.

Mr. GREENHOUSE: I hear they have nice shoelaces, Carrie.

(Soundbite of laughter)

CONAN: I just didn't like to hear that part about being able to fire somebody for the way they pronounce words. Wait a minute, we're getting into delicate territory here. Thanks very much for the call. We appreciate it.

CARRIE: Thank you.

CONAN: 800-989-82-55. Email is talk@npr.org. And there is - private sector employees may feel, well, singled out. But they are - what's the phrase? Employment at will?

Mr. GREENHOUSE: Yes. Employment at will is a tradition in the United States that you could be fired for any reason except ones that are specifically prohibited by law, such as, you can't be fired for your religion, for your race, for your ethnicity. You can't be fired for supporting a union, you can't be fired because you filed a complaint with, you know, OSHA, that the place where you work is unsafe.

But you can be fired for how badly you pronounce words or they don't like how you comb your hair. So they could fire you for any reason and no reason, and they don't even have to tell you.

CONAN: Let's see if we go next to Fred, and Fred with us from Farmington Hills in Michigan.

FRED (Caller): Good afternoon.

CONAN: Good afternoon.

FRED: I am in a business where I give seminars around the country, and I have employees that I bring with me. And we have a morals clause with our - I'm a photographer - for my employees. And on one of my employee's MySpace page, back before Facebook became real popular, she said that she liked doing a particular sex act that some people might consider ugly.

And because this person is on the road with me, we wound up letting her go, saying that you presented us in a bad way, you know, saying that while you were on the road you enjoy doing this. And she sued us and she lost because a morals clause was in the employment contract.

CONAN: So she was aware of the conditions when she signed the contract...

FRED: Yes.

CONAN: ...and that included a moral clause. Steven Greenhouse, it sounds like Fred has some pretty good basis.

Mr. GREENHOUSE: Yeah. I agree. After my story appeared on Tuesday about the NLRB saying employees have the right to complain about their supervisors on Facebook, several people wrote to me to say, but I was fired because I posted lewd pictures on Facebook or pictures of me drunk on Facebook.

And I think the National Labor Relations Board, most judges would say that employers have the right to do that because that's not - and I use this phrase again - concerted protected activity. It's just people sounding off doing jerky things and the employer, you know, has the right to fire them over that, just as it has the right to fire them over their shoelaces.

And I think Fred was being fair firing them under the, you know, the morality clause, but, you know, he didn't even need that to fire the person if he thought the person was acting wrongly.

FRED: Wasn't there a case recently with a person that was a ticket taker for, I believe, a football team that made a comment about his boss and he was let go, and he lost in court?

Mr. GREENHOUSE: Yes, very often. I mean, comments like that, Fred, can be seen as, you know, offensive and insubordination. And again, the National Labor Relations Board would say it all depends on whether it's done in conjunction with other workers.

FRED: Gotcha.

Mr. GREENHOUSE: If you're just mouthing off with your employer saying, you know, you stink or worse, you know, the employer can get angry and say, I don't need you around here anymore. But I think if three employees hold a meeting and say our employer stinks...

CONAN: And let's do something about it.

Mr. GREENHOUSE: ...and the employer gets wind of it, I believe the National Labor Relations Board would say that's concerted protected activity, people are banding together to improve their workplace.

CONAN: Fred, thanks very much for the call.

FRED: Thank you.

CONAN: We can't say a lot of things here on the radio. We're talking today about some of the things you can't say or do because of your job. Up next, an employment lawyer helps us sort out the do's and dont's.

Employers, where do you draw the line? Our phone number is 800-989-8255. Email us: talk@npr.org. I'm Neal Conan. Stay with us, it's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

A teacher in Ohio lost her job after assigning students a number of controversial books. An aide to a U.S. Senator was fired this month after making anti-gay comments on a blog. A lawyer for Dr. Jack Kevorkian was once reprimanded after comparing the judges hearing his case to Nazis.

We're talking to you about what you can and cannot say in your job. Employers, where do you draw the line? 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Steven Greenhouse is with us. He covers labor issues for the New York Times. We've posted a link to his article on the Facebook case. That's at npr.org. Click on TALK OF THE NATION.

And let's get some answers from a lawyer who deals with this for a living. Joining us here in studio 3A is Lily Garcia, an employment attorney at the Clearspire(ph) firm, and a contributing writer to the Washington Post's job section. Nice to have you with us today.

Ms. LILY GARCIA (Employment Attorney): Thank you. Nice to be here.

CONAN: And it sounds like we've been hearing private sector employees have first amendment rights, but not necessarily the rights to keep their jobs.

Ms. GARCIA: That is correct. Your employer has every right to establish certain policies that are calculated to maintain the well-being and integrity of the business. And they have every right to terminate your employer if you violate those policies.

Now, that is bounded by certain laws, as we were discussing earlier. Among them, the National Labor Relations Act, which protects the rights of employees to engage in concerted activity for collective bargaining and other mutual aid.

And the key there is, of course, that you're engaging in something constructive and that you're doing so with other employees. If you're just gratuitously disparaging your employer, it may not be protected activity. But this recent case does create some concerns for employers, in that it does appear to be so broad sweeping in terms of the...

CONAN: You're talking about the Facebook case that Greenhouse wrote about, yeah.

Ms. GARCIA: That is correct.

CONAN: So it's so broad that it could include a lot of - you think it could it could include a lot of activities that weren't included before?

Ms. GARCIA: Correct. That it's a cautionary tale for employers. Of course, we'll have to see how it is it actually turns out. It's not to be heard until January, but it's potentially very much farther reaching than the law has been before.

CONAN: Okay. And as we then go to public sector employees, Steve Greenhouse was saying they have more rights.

Ms. GARCIA: He is correct. They do enjoy First Amendment rights when it comes to matters of public concern. What's a matter of public concern? That depends on the particular court that you find yourself before. But, for example, if an employee in the public sector were to make a comment about waste at their particular bureau or office, that's potentially a matter of public concern.

Now, if they're talking about strictly an internal management issue that doesn't necessarily relate to the public, that would not be protected under their First Amendment rights. So that's generally where the lines are drawn, although it can get very fuzzy around the margins.

CONAN: And you can get cases involving a Department of Defense employee, or a Central Intelligence Agency employee, something like that, where it may get into whistle blowing, it may get into disclosing secrets.

Ms. GARCIA: Correct.

CONAN: So that could get pretty murky too. Are most people aware of these kind of gray areas?

Ms. GARCIA: Not at all. What I find is that most private sector employees believe that they have First Amendment rights, and that there are certain things that they can say with impunity in the workplace or outside of the workplace about their employer, and that's just not the case.

CONAN: Are they sometimes surprised to find out?

Ms. GARCIA: They're very often surprised to find out.

CONAN: Let's see if we can get some more callers on the line. Let's go next to, this is Tom. Tom with us from St. Louis.

TOM (Caller): Hi.

CONAN: Hi, Tom.

TOM: Hi. Great program, Neal. I'm an employer. I have a little bit of history in different directions. My father was a union president for 40 years. I spent 30 years in big corporate business, mostly in the financial sector, and now I own my own business for the last four years.

And I'm a little bit creeped out by this because it is something I never thought of. But if, as a private, small business owner of 30 employees, if a group of my employees decided to start blogging and calling me a psychopath on the Internet, in my community where my presence and my business in my community and my reputation is everything, it could damage me.

So I do think there's some concern here for small business owners if the message gets sent that you can kind of trash your employer online and you're protected. And I'm confident that I would, and that people like me would, in an at-will scenario, would find we would just release people and say, you know, we don't have to tell you why, we just don't need you anymore and have a nice day, if that kind of stuff was going on. I think we would have to to protect our business.

CONAN: Lily Garcia?

Ms. GARCIA: You've hit, Tom, exactly on the reason why this most recently NLRA case is so concerning for employers, is that it would appear that employees would be permitted to make potentially inflammatory or disparaging comments about their employer or their manager that are not necessarily geared toward having a constructive dialogue about how to improve the conditions in the workplace.

TOM: Right. And I think that's what's creepy about it, is when we start saying you can say he's, you know, the equivalent of a psychopath or a psycho patient, and then somehow because it's a group discussing work, it falls under protected concerted.

That's why I thought of my father being a union president, and then as a corporate manager for many years, you know, we had many times - issues with employees where it bordered on or turned into termination where we had to talk about protected concerted activity. But I think that should be very clearly defined. And I think you started making me feel better when you said that disparaging comments may not be okay and considered protected. Because that really shouldnt be.

Ms. GARCIA: You just never want to find yourself in the position of having to defend what personnel action you took toward your employees. And so the cautionary tale for employers at this point is to try to maintain positive and open and collaborative relationships with employees such that you never get into a situation where your employees feel they...

TOM: Like they have to.

Ms. GARCIA: ...like they have to, right. Or they have the right, or they should go out into the community and call you a psychopath.

TOM: Exactly. And I think that's the key point. And I think maybe I feel pretty confident about that. But once you have to reprimand someone, I think we all know that's the other concern is that properly motivated by frustration and no one wants to admit they've done something bad or wrong or made a mistake, it's always easy to blame the other person. And then you start getting into a situation where there's no truth either.

CONAN: Well, Tom...

TOM: They could just blog anything whether it's true or not.

CONAN: And they could always do it anonymously, but I guess that's less effective than saying I work there and he's a complete slug. Steven...

TOM: Well, yeah. And that's what I think is scary is the whole I worked there, or I work there, and let me tell you the deal. And people on the Internet, especially much like on television, they just want to believe it. It's easy to believe.

CONAN: Steven Greenhouse, was there a distinction? I mean, yes, a union meeting is a public place. Facebook is a much more public place.

Mr. GREENHOUSE: It is and it isn't. In theory, on one hand, an infinite amount of people could look at your Facebook page, but you often just limit it to, you know, what you have to a certain number of friends. But I agree with what Lily said.

The, you know, workers can't say anything and everything in criticizing their boss, you know. They can make disparaging comments, as Lily said, when it's, you know, in concert, in furthering things like mutual aid. But they can't just, you know, say outrageous things that have nothing to do with the job. They can't, you know, ridicule their supervisors, let's say, sexual performance.

They can't say disloyal things like, the airline work for is horribly unsafe, or the food maker I work for makes poisonous food. That's seen as disloyalty, and you're not allowed to, you know, you can be fired for making disloyal comments unless, you know, they are very specific saying, you know, my, you know, the restaurant where I work was found to have 10 safety violations. So there are limits.

CONAN: Is truth a protection?

Ms. GARCIA: Truth is a protection to a defamation claim. It's an absolute defense to a defamation claim. And the other protection is the whistle-blowing statute. So if you are an airline employee disclosing information about the lack of safety of your airline carrier, then you would be protected under the whistle-blower statutes, and the same goes for the trucking industry, and the same goes for people disclosing corporate malfeasance under Sarbanes-Oxley.

So there are a number of whistle-blower statutes out there that would protect people who are making comments that are potentially disparaging or inflammatory, but nevertheless true.

CONAN: All right. Tom, thanks very much for the call. We can stipulate you are not a psychopath.

TOM: Thank you very much.

CONAN: Okay. Bye-bye. Let's see we go next to Darren. Darren with us from Fort Collins in Colorado.

DARREN (Caller): Yes. It's Darren, how you doing?

CONAN: Oh, hey, Darren. Go ahead, I'm sorry.

DARREN: Oh, no problem, no worries. Actually, I'm an employer myself. I mean, I'm a pretty lenient employer from what my employees tell me, but I kind of draw the line when it comes down to disrespect.

Mostly my employee's number one responsibility is to the customer. So if they don't disrespect customer - if they start badmouthing a customer in a public forum or get in an argument, then there's an issue.

But with me, it's I don't - the respect issue - the respect situation would be if they're calling me stupid, that's too far. But if they're calling my ideas stupid, that might be another thats a little bit more respectful.

But as far as like what is just being said, the whistle-blower concept, if I'm using substandard parts and I'm selling a customer top notch - the work order says one thing, that's a public forum that's going to keep me honest.

And I would rather see my employers be honest with me first instead of go on Facebook, but again, if I'm being a jerk enough for them to go around and talk about me behind my back, well, maybe I better look at myself instead of my employees' actions.

CONAN: And Darren, does it make any difference whether this happens on the clock or off the clock?

DARREN: Oh, it doesn't matter either way. If they're wasting time on Facebook on the clock, that's a whole other issue.

(Soundbite of laughter)

CONAN: Okay. That gets into - they don't have too many rights to begin with.

DARREN: Yes.

CONAN: But what about these other point, clearly, that's what's he's talking about - the whistle blower. That's what the statute is there for.

Ms. GARCIA: Correct.

DARREN: Yeah, the whistle blower is great. Yeah.

Ms. GARCIA: Yeah. As a matter of public policy, we've determined as a society that this category of employee should be protected because we want to encourage people to come forward regarding safety violations and other important matters of public concern that could have far reaching negative impact for people and society as a whole. So it's the determination we've made. This is worth protecting.

DARREN: So looking at my situation alone, as a skylight specialist, I'm like the surgeon in the roofing field, and there's so many discrepancies in the roofing field where most homeowners don't know what they're doing. The only people - the only time a homeowner or a city official is really going to find out that somebody is cutting corners as a bad boss, with safety matters or as a corrupt businessman and selling them substandard parts - the only way the public or the homeowners are going to know is that there's a worker who comes forward. Because you can't leave it - always leave it up to the boss. There's not a bunch of - not all people are honest. There's a lot of greedy people out there that want to cut corners, and there has to be some form of protection for them.

CONAN: Darren, thanks very much for the call. Appreciate it.

DARREN: Thank you.

Mr. GREENHOUSE: Can I just interject?

CONAN: Sure, Steve.

Mr. GREENHOUSE: I think Darren makes some very good points. And whenever workers try to unionize, I imagine employers are going to say, you know, the workers who favor unions have said something - that disrespect the employer. So I think Darren's certainly right that he has the right to fire an employee who speaks with disrespect to consumer, you know, to consumers...

CONAN: Customer, yeah.

Mr. GREENHOUSE: ...to customers. But, you know, again, if five workers are unhappy about wages and say - and Darren sounds like a very reasonable guy -but say that their employer is cheap and attached the profanity, you know - is very cheap, I imagine the National Labor Relations Board would say that they have the right to speak even disrespectfully against their boss when they're discussing issues like wages and working conditions.

CONAN: Not merely, they could say he was cheap, but a cheap son of a gun?

Mr. GREENHOUSE: Yes.

CONAN: Okay.

Mr. GREENHOUSE: That's very dirty, Neal.

CONAN: Okay.

(Soundbite of laughter)

CONAN: Well, we're watching, very carefully, what we say here because...

Mr. GREENHOUSE: Yes.

CONAN: ...there could be consequences. You never know. Steven Greenhouse covers labor for The New York Times. He's with us from our bureau in New York. Lily Garcia used to write the How to Deal column for the washingtonpost.com and heads the employment practice now at Clear Spire(ph) law firm. You're listening to TALK OF THE NATION from NPR News.

Let's go next to Dave(ph). Dave with us from Los Gatos in California.

DAVE (Caller): Hi, Neal. Love your show. I'm been a HR director for 21 years in high technology, and specialized in counter(ph) change(ph) management. And we've had employees who have undermined management, the change, to the point where they're destructive and counterproductive. And as long as we have documentation that went through our P&Ps, we were free to terminate that. And under this new ruling, that employee would have much greater protections and that worries me.

CONAN: PNP is protocols and procedures?

DAVE: Close enough.

CONAN: Okay. Is he right, Lily Garcia?

Ms. GARCIA: Well, you know, I want to back up. There hasn't actually been a ruling yet.

CONAN: Right.

Ms. GARCIA: But the way that it looks, if it came out the way that the National Labor Relations Board might want, it would potentially create a precarious situation for employers. And - yes, and the way that it's written at the moment, it would potentially tie employers' hands in doing the things, Dave, that you seem fit to do throughout the year is to protect your business interest.

DAVE: Yes, absolutely. Particularly in high technology, where the lifecycle of a product is 18 months or less.

CONAN: So if its reputation is blemished, there's very little time to recover before it's outmoded?

DAVE: That's correct. You know, by the time the Christmas season this past year, investment has already been spent, and recouping that is next to impossible, and the margins are so slim.

CONAN: Thanks very much, Dave. And, Steven Greenhouse, I'm sure in response to the - your piece that you published earlier in the week, and you're hearing the phone calls, people are concerned, employers are concerned about the edges of this ruling. Could it have these kinds of repercussions, do you think?

Mr. GREENHOUSE: I think this rule - it's not a ruling yet.

CONAN: Potential rule.

Mr. GREENHOUSE: Filing a complaint and, as Lily said, a judge - an administrative law judge will, in theory, rule on it or hold a hearing on it in January. The employee on whose behalf the complaint was brought said some really nasty things about her supervisor, things that you and I cannot say on the air without getting in trouble, Neal. And still the National Labor Relations Board says, you know, when workers get together, you know, they don't often speak, you know, the Queen's English. They say very nasty things. And if it's for mutual aid, if it's for improving working conditions, they will allow it.

And I got some calls from employers whose, you know, and some comments on The New York Times comment page saying this is crazy. This woman said horrible things, horribly disloyal things about her supervisor, and why shouldn't the company have the freedom to fire that person. And the National Labor Relations Board response is, you know, there's lot of times - lots of types of workers, many speak in profanities that's how, you know, certain folks talk, and we have to give them a wide ambit, wide scope of speech to, you know, to figure out how they want to improve working conditions. And in this case, in Connecticut, the worker thought that her supervisor was violating rules by not letting her have her union representative help her respond to allegations that she did not serve a customer properly.

CONAN: And I wonder if this ruling, Lily Garcia, is upheld, if that does go ahead, do you think that you would then see, as we've heard some employers tell us on the air, well, if that's the case, I'm not going to tell her why I fired her. I'm going to tell her I didn't like the color of her shoelaces.

Ms. GARCIA: Certainly, there will be employers who look for ways to work around the ruling and who will be a lot more careful about documenting performance deficiencies and conduct violations in the workplace, but I'm not sure that that's such a bad thing, to tell you the truth, because it is always a better parting for an employer and an employee if there is a mutual understanding on both sides about what the problem is that led to the termination of employment. Even if there may also be this other reason lurking in the background that could potentially be impermissible.

CONAN: Well, thanks very much for the time. Appreciate it. Lily Garcia, an employment attorney here in Washington, D.C., and she joined us here in Studio 3-A. Thank you for your time. And Steven Greenhouse covers labor for The New York Times, joined us from our bureau in New York. Steve, always nice to have you on the program.

Mr. GREENHOUSE: Nice to be here, Neal.

CONAN: Up next, the final patrol of a group of U.S. soldiers in The Devil's Playground in Afghanistan. We'll talk with our Army-veteran-turned-reporter Brian Mockenhaupt. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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