Speaker 1: Sold me here on seven hundred WLW.
Speaker 2: We know that your employer can punish you for things
Speaker 2: you post on social media. Play stupid games when stupid
Speaker 2: prizes happens all the time, But what about when it's
Speaker 2: a work related safety issue. So this guy, Jason Thompson,
Speaker 2: he's a twenty year plus USPS mail carrier and Fairfield
Speaker 2: suspend without pay because he posted safety concerns on social
Speaker 2: about winter storm conditions on Facebook.
Speaker 1: They made me show up. And the narrative of the
Speaker 1: story is really quick.
Speaker 2: Is that he shows up to work and notice that
Speaker 2: the lots are poor ploy I don't want to say that,
Speaker 2: they're not plowed really well. And the postal trucks are
Speaker 2: bared in snow. They said, hey, there's no packages here
Speaker 2: to the lever because of the storm. But you've got
Speaker 2: to dig your cars out by hand. We don't have
Speaker 2: shovels or anything for you, but yeah, get in there
Speaker 2: and start. You lean into it, get onto your hands
Speaker 2: and knees and shovel off these trucks that aren't going
Speaker 2: to run anyway. And there's nowhere to put the snow
Speaker 2: and it's a mess. And yeah, now he's sixty years
Speaker 2: old and The end result is, well, we hear people
Speaker 2: having heart attacks all the time because of this. Is
Speaker 2: that in the scope of his job? And he would say, no,
Speaker 2: it's uh, they made cuts and can't have anyone come
Speaker 2: and properly clean off the vehicle so we can do
Speaker 2: our jobs. And he bitched about it on Facebook, the
Speaker 2: age old American sport of complaining about your boss. Well,
Speaker 2: it led him to an unpaid suspension. The question is
Speaker 2: is he a whistleblower and is he protected? And what
Speaker 2: are your rights if you run into something like this?
Speaker 2: George Rule is here. He is the first and foremost
Speaker 2: the employment law attorney in Cincinnati with freaking Myers and
Speaker 2: rule George, welcome back, How are you?
Speaker 1: How's life?
Speaker 3: Son? Hey, Sonny, thanks for having me on. I'm well
Speaker 3: than you.
Speaker 2: Yeah. I don't think you guys are involved. Maybe you
Speaker 2: guys are involved with this case. I don't know. But
Speaker 2: does this fall into the guys of whistleblower complaints? And
Speaker 2: you know he puts it up on social media about
Speaker 2: safety conditions? Is that qualified? The safety issues? Complying is
Speaker 2: whistleblower activity? And keep in mind this is federal law
Speaker 2: and he works for a federal agency.
Speaker 3: Yeah, Uh.
Speaker 4: Generally speaking, whistle blowing activity usually involves an employee disclosing
Speaker 4: information that they reasonably believe is evidence of illegal, unethical,
Speaker 4: or unsafe activity. Uh. And and so obviously his complaints
Speaker 4: here uh do have some relationship to unsafe activities.
Speaker 3: Uh.
Speaker 4: You know, I think there is a question in terms
Speaker 4: of the manner in which he disclosed, you know, generally speaking,
Speaker 4: a complaint to your employer, uh, or an agency such
Speaker 4: as OSHA. OSHA is a federal agency that enforces workplace
Speaker 4: safety laws, so certainly could be protected activity. Also, Uh,
Speaker 4: it might be protected concerted activity under the National Labor
Speaker 4: Relations Act because he is talking about his terms and
Speaker 4: conditions of employment, So there might be some additional protection there.
Speaker 3: Yeah.
Speaker 2: As a postal work he's protected by union, although he
Speaker 2: has been suspended without play they called an emergency placement
Speaker 2: without pay pending an internal investigation. And of course the
Speaker 2: Postal Services well, no, employee safety is our top priority.
Speaker 1: That's hard to argue though.
Speaker 2: If you've got your sixty year old postal workers who
Speaker 2: normally sit in a truck and deliver mail out with
Speaker 2: their hands and I don't know, using dust pans and
Speaker 2: probably coffee can lids to dry and clear snow out
Speaker 2: from around your vehicle. And keep in mind the snow
Speaker 2: was plowed in a fashion that all the snow from
Speaker 2: the lot is now pushed up against where the vehicles are,
Speaker 2: so it's several feet of snow he got to dig out.
Speaker 4: Yeah, that certainly, and I believe he was sixty years old.
Speaker 4: Not really an age thing, but you know, physical work
Speaker 4: certainly could be an employee safety issue.
Speaker 1: Yeah, not sure if that covers it.
Speaker 2: Are there specific whistleblower protections that apply to USPS employees?
Speaker 2: And this is kind of getting granular here, and you
Speaker 2: may not know the answer to that, but if you're
Speaker 2: a federal employee with a union, are you covered in
Speaker 2: there is or something else?
Speaker 3: Well?
Speaker 4: Interestingly, OSHA or the Postal Service is one of the
Speaker 4: few federal agencies that's covered by OSHA as far as
Speaker 4: workplace safety. Their most federal employees are covered under something
Speaker 4: called the whistle Blower Protection Act, so you know there
Speaker 4: there are a ton of different whistle blower laws. OSHA
Speaker 4: actually has a whistle blower Protection program that covers twenty different.
Speaker 3: Statutes, so.
Speaker 4: You know, in order to have protection as an employee,
Speaker 4: what you are complaining about has to be legally protected activity,
Speaker 4: and often you need an underlying statute to provide that protection.
Speaker 4: So you know, it is kind of a patchwork of
Speaker 4: laws and confusing. So you know, it's it's something where
Speaker 4: you probably need some legal advice to know whether you're protected.
Speaker 2: What your lawyers at George Rul did, do you see
Speaker 2: this as undue retaliation for protected activity?
Speaker 3: It certainly, it certainly could be.
Speaker 4: You know, he got he got suspended off of work.
Speaker 4: It's interesting, as I understand it from from looking at
Speaker 4: some of the articles about it. Uh, the Postal Service
Speaker 4: asked him to come back, uh several hours after he
Speaker 4: was suspended, which you know, sort of suggests they knew
Speaker 4: it was potentially a problem to put him, you know,
Speaker 4: put him off work.
Speaker 3: Uh.
Speaker 4: So I certainly think, uh, this is one where he
Speaker 4: does have some legal protection. It didn't seem to be
Speaker 4: just an individual gripe you know he was he was
Speaker 4: when he made his post. As I understand it, he said,
Speaker 4: you know, I know I'm not the only one who
Speaker 4: has this concern, So you know, generally it does seem
Speaker 4: like he was not only speaking for himself, but his
Speaker 4: coworkers and the working conditions. So you know, if it's
Speaker 4: not if it's not whistle blowing, uh, it certainly might
Speaker 4: be uh consertive protected act.
Speaker 2: Well, it's interesting because I know Fox nineteen broke the
Speaker 2: story and a couple of the media outlets had obviously
Speaker 2: we're talking about this morning with George Rule, employment law
Speaker 2: attorney from freaking Myerson Rule here in Cincinnati, and Uh,
Speaker 2: as soon as that happens, it's like, well, you know, well,
Speaker 2: why don't you come back to work? I mean, it's
Speaker 2: interesting how that plays out. Does that indicate though, from
Speaker 2: a legal perspective, that maybe they got this wrong at
Speaker 2: first blush that they're backing off so quickly.
Speaker 3: Well, it certainly appears like that.
Speaker 4: Now obviously bringing him back after a few hours, that
Speaker 4: would that would limit the adverse impact of a of
Speaker 4: a suspension, Uh, you know, only only losing uh you know,
Speaker 4: maybe two three hours.
Speaker 3: Hours of pay.
Speaker 4: But you know, I certainly I think most employees who
Speaker 4: speak out, uh, you know, do have a concern Hey
Speaker 4: if I put a target on my back by you know, disclosingess.
Speaker 4: So you know, it's not only the immediate suspension, but
Speaker 4: kind of how he's treated in the future. So yeah,
Speaker 4: that's see.
Speaker 2: Uh so this guy is postal worker Jason Thompson is
Speaker 2: told to take down the post or there's gonna be repercussions.
Speaker 2: He didn't, and the repercussions where we suspend you without pay.
Speaker 2: Talk about a wonky constitutional First amendmentor called prior restraint?
Speaker 1: Was prior restrainted play here?
Speaker 3: You know, I don't know that one's funny.
Speaker 1: That's a good question, right, I was like, well.
Speaker 2: I mean it's it's a cons social rite in many
Speaker 2: maining says we prevent you from doing something we don't
Speaker 2: like in the first place. And so the legal standard
Speaker 2: about his speech was they said it was a matter
Speaker 2: of public concern, the public somehawser I don't know if
Speaker 2: I buy the this is an issue of public concern.
Speaker 1: This is a workplace safety issue.
Speaker 4: Yeah, I mean whether or not it's protected on the
Speaker 4: First Amendment.
Speaker 3: Uh, you know, that's.
Speaker 4: You know, that's a maybe a complicated legal question. You know,
Speaker 4: is he is he talking as a public employee or
Speaker 4: a private citizen?
Speaker 3: Uh?
Speaker 4: You know, I certainly think there's an angle that would
Speaker 4: be a matter of public concern.
Speaker 3: Uh.
Speaker 4: You know, if certainly during a level two snow emergency,
Speaker 4: I think there's a question of whether or not, you know,
Speaker 4: postal workers need to.
Speaker 3: Be on on the road. Uh. It's interesting.
Speaker 4: The the Postal Services statement.
Speaker 3: In response kind of touched on that in terms of saying, hey,
Speaker 3: you know people need their medications.
Speaker 4: Uh, you know government correspondence. So you know, there's an
Speaker 4: argument from the employer there. You know that there's a
Speaker 4: there's a need for for the postal workers to be
Speaker 4: on the on the road.
Speaker 3: And right delivering our right.
Speaker 2: But at the same time they said that, I guess
Speaker 2: the trucks that were bringing the mail in where there
Speaker 2: are no.
Speaker 1: Packages to deliver that day, So why we digging our
Speaker 1: trucks out if we can't move.
Speaker 2: It's like, okay, well we're going to show up and
Speaker 2: make you dig our trucks out because maybe that'll save money.
Speaker 1: I don't know about that.
Speaker 2: On the other side of this charge rule, talk about
Speaker 2: the burden of proof that the Postal Surface had had
Speaker 2: they suspend him, and what events they have that that
Speaker 2: backs their claim up. We've talked about this case Jason Thompson,
Speaker 2: and it's a pretty good claim here.
Speaker 1: This is a whistleblower type of issue.
Speaker 2: But how does the United States Postal Service affirmatively defend themselves.
Speaker 4: Well, I think you know, again, they would look at hey,
Speaker 4: is this just an individual employee ripe, you know, looking
Speaker 4: at the manner in terms of, you know, how he
Speaker 4: communicated this, did he talked the management to express his
Speaker 4: concerns initially at the outset? You know, I think the
Speaker 4: postal Service would say, hey, look, this is a you know,
Speaker 4: a couple hours suspension, so is it is it really
Speaker 4: an adverse employment action? So you know, there would be
Speaker 4: some legal defenses there, but but certainly I'm not sure
Speaker 4: how the postal Service could argue that the suspension had
Speaker 4: anything to do other than than the post itself.
Speaker 3: Yeah, and you know.
Speaker 4: The content and the post being about potentially unsafe working conditions,
Speaker 4: So that seems to be a tough argument.
Speaker 2: Right, And it also feels like both sides, at least
Speaker 2: the post service wants us to go away because they
Speaker 2: brought brought them back in hours later, and it's like,
Speaker 2: well it was maybe it was a misstep on our
Speaker 2: part here, We're going to have to clarify our policies
Speaker 2: and like, but what is the takeaway for someone listening
Speaker 2: to is going, well, I'm not a postal worker, I
Speaker 2: don't have to dig trucks out or maybe I do,
Speaker 2: but I'm not in a union.
Speaker 1: When you should? You think twice and what what?
Speaker 2: And I guess what are the boundaries posting stuff on
Speaker 2: social We see people fired all the time, right, George,
Speaker 2: because they do something on social or say, say and
Speaker 2: they want to get fire because it makes their company
Speaker 2: look bad, which is perfectly when they're right to do so.
Speaker 1: But what are the limits of that?
Speaker 3: Yeah?
Speaker 4: So certainly if you are publicly disparaging your employer, if
Speaker 4: you're you know, posting your individual rights online, that can
Speaker 4: be ground to get you discharged.
Speaker 3: Uh.
Speaker 4: You know what you are speaking out about, what you're communicating,
Speaker 4: uh is important? You know, are you exposing something unsafe?
Speaker 3: Uh? You know, unethical? Illegal?
Speaker 4: Uh? That type of speech tends to be protected. Is
Speaker 4: it a matter of public interest?
Speaker 3: You know? Is there is their First Amendment issue?
Speaker 4: And you know then are you are you talking about
Speaker 4: the terms and conditions of your work?
Speaker 3: Is it you know?
Speaker 4: Is it a collective discussion that might be protected again
Speaker 4: under the national wave relationship?
Speaker 3: Right?
Speaker 1: And the other element of this too.
Speaker 2: I use another example We've seen this happen before, where
Speaker 2: somebody is a fast food worker and they're doing something
Speaker 2: in the kitchen that you know, could wind up getting
Speaker 2: a customer sick, doing something stupid, and they post it
Speaker 2: and they wind up getting fired. They could turn around say, well,
Speaker 2: I was just exposing this because you know, as a whistleblower. Well,
Speaker 2: it's different if you're participating in it. Is the crux
Speaker 2: of the their argument or their defense, going, hey, I
Speaker 2: presented this to management, showed them the video, and they
Speaker 2: didn't do anything. If you post it on social after
Speaker 2: they refused to act on the complaint, does that then
Speaker 2: make it a whistleblower complaint?
Speaker 3: It could?
Speaker 1: Yeah.
Speaker 4: I mean going to your employer first and raising the concern,
Speaker 4: I think would would would heighten the protection, right because you're.
Speaker 3: You know, it shows you have an interest in you.
Speaker 4: Know, protecting folks I guess from getting sick in that case.
Speaker 2: Right at the very least, it sounds like, you know,
Speaker 2: the common sense thing to do, outside of the legal
Speaker 2: anglings of this is to simply give the employer, give
Speaker 2: your employer a chance to remedy the situation.
Speaker 4: Yeah, I think that that certainly establishes an element of
Speaker 4: good faith rather than just you know, trying to cause
Speaker 4: problems right, if if you're trying to address the problem, uh,
Speaker 4: you know, make.
Speaker 3: Somebody aware of it.
Speaker 2: Yeah, that's and that's just common sense that has something
Speaker 2: to do with the law. The first step is going
Speaker 2: to your boss, your employer, saying, hey, here's this is
Speaker 2: a problem. Why why are we doing this? Why am
Speaker 2: I shoveling snow art? Or why is this person I
Speaker 2: don't know, doing something a kitchen, at a at a
Speaker 2: fast food restaurant they shouldn't be doing. If they ignore
Speaker 2: that at workplace safety issues, then okay, then then you
Speaker 2: know you post it on social it's a different story entirely.
Speaker 2: All right, Well it's an interesting interesting case for sure.
Speaker 2: George Rule at freaking Myers and Rule employment lawyers here
Speaker 2: in Cincinnati. All the best, George, thanks for jumping in
Speaker 2: this morning.
Speaker 3: Hey, thanks, good to talk to you.
Speaker 2: Yes, sir, be well, hope you're well. We'll chat again
Speaker 2: soon because there's really something popping up in the workplace,
Speaker 2: that's for sure. There's news on the way in just
Speaker 2: a few minutes here on seven hundred WLW. And when
Speaker 2: we return. Now it's rather cold, but you may have
Speaker 2: a little cabin fever.
Speaker 1: I know, I do.
Speaker 2: We actually with my wife having her knee done, and
Speaker 2: finally venture out and actually eat a meal out of
Speaker 2: the Sloan Castle.
Speaker 1: Last night We're like, we got to get that out
Speaker 1: of here. A little bit of cabin fever.
Speaker 2: So if you want to venture out, dip that toe
Speaker 2: in the cold, what to do, where to go, what
Speaker 2: to see, what to eat, what to drink? Ali Martin
Speaker 2: in the Local Loop is coming up in just minutes
Speaker 2: here on The Scott's Loan Show on seven hundred w
Speaker 2: all Day