Insubordination or legitimate gripe? It’s important to know the difference

When one of your employees objects to alleged illegal or discriminatory conduct in the company, you can’t simply fire or demote the person. That would be considered illegal retaliation.

Still, that doesn’t mean such employees have the right to be insubordinate, rude and nasty.

As this new case shows, there’s a fine line between voicing opposition to a company practice and challenging superiors in an insolent way.

Recent case: Jacque Johnson managed the Charlotte operations of the Mechanics & Farmers Bank. The Charlotte division was running well below expected revenues, and the bank blamed Johnson for the problems. Johnson was placed on a performance-improvement plan. Things still didn’t improve.

Then one day, two of Johnson’s subordinates got into a heated argument at work. An outside investigator determined that one employee was to blame. So the bank ordered Johnson to fire the subordinate.

Johnson disagreed and refused to fire the employee.

Instead, Johnson demanded to see the investigation file. He told his supervisor in an e-mail that the outside investigator was unprofessional and should receive training in “the logical analysis of data.”

The bank fired Johnson for insubordination. He sued, countering that he had engaged in protected conduct by opposing an allegedly illegal decision to fire a subordinate.

But the court tossed out his case, saying no objective information supported Johnson’s position. Plus, it said the tone of Johnson’s comments and e-mail was “unmistakably insubordinate and insolent.” (Johnson v. Mechanics & Farmers Bank, No. 07-1725, 4th Cir., 2009)

Public employers: Know where the line of free speech stops and insubordination begins

Employees who work for government agencies have a few additional rights that privately employed workers don’t enjoy. One is the right to speak out on matters of public importance. That right, however, is quite limited.

Even so, some public employees think they can say anything about their supervisors and not be disciplined. That just isn’t so. In fact, if public employees are speaking out about matters that fall within the purview of their jobs, chances are it isn’t protected free speech.

Recent case: Rita Cindrich, an attorney for the Pennsylvania Attorney General office, often disagreed with her supervisors about various work topics. For example, she complained to supervisors about outside attorneys who acted in ways she considered unethical.

Sometimes her complaints led to her removal from cases. Once, she was ordered to contact the employee assistance program to get a psychological examination.

Apparently, Cindrich’s series of complaints were very similar, and management became impatient with the same issues being raised again and again. Finally, she was told she would be terminated, and she resigned instead.

Cindrich sued, alleging that she’d been punished for speaking out on matters of public interest. This, she said, violated her First Amendment right to free speech.

After evaluating each instance of alleged “free speech,” the court concluded that her complaints weren’t covered. It characterized her complaints as reflecting nothing more than “the quintessential employee beef: management has acted incompetently.” It tossed her case. (Cindrich v. Fisher, et al., No. 06-2615, 3rd Cir., 2009)

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