A drama teacher became upset when the school instructed him to rewrite some passages of a student play. The teacher emailed coworkers complaining and requested that they seek an apology from the school administration for conduct that the teacher described as dishonest, immoral, and unintelligent. When confronted by the school, he initially denied its existence but later admitted to being the author. The school did not renew the teacher’s contract, which prompted him to file an unfair labor practice charge claiming that his email was protected concerted activity.
The administrative law judge (ALJ) agreed with the teacher and ordered reinstatement and back pay. The judge disregarded the insulting characterization of school administration and instead focused on the email as being “clearly protected concerted activity.” The judge specifically rejected the school’s explanation that they fired the teacher for initially lying about the email, stating that there was no evidence that lying about the email was the reason for the termination at the time of the decision.
This case presents a stark contrast to the Board’s other recent decision to uphold the termination of the warehouse driver who lied about writing vulgar messages on newsletters. Perhaps the main distinction between the two cases is that the company that fired the warehouse driver was clear that he was being fired both for his comments and for lying during the investigation. The case at hand may have had a different result had the school clearly documented the employee’s dishonesty as a reason for his termination.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.