Just Cause Discipline for Social Networking in the New Gilded Age: Will the Law Look the Other Way?

56 Pages Posted: 4 Feb 2015 Last revised: 22 Aug 2016

See all articles by William A. Herbert

William A. Herbert

Hunter College, City University of New York

Alicia McNally

New York State Public Employment Relations Board (PERB)

Date Written: August 19, 2016

Abstract

We live and work in an era with the moniker of the New Gilded Age to describe the growth in societal income inequality. The designation is not limited to evidence of the growing gap in wealth distribution, but also the sharp rise in employment without security, including contingent and part-time work. This article examines the state of workplace procedural protections against discipline as they relate to employee use of social media in the New Gilded Age. In our times, reactions to the rapid distribution of troublesome electronic communications through social networking tend to eclipse patience for enforceable workplace procedures. The advent of social media and the decline of job security have created a perfect storm that raises the question of whether labor law will look the other way when it comes to the principles of workplace fairness and justice.

The article begins with President William McKinley’s introduction of the doctrine of just cause discipline into American labor law in 1897, during the Gilded Age, at the same time that the common law at-will doctrine was continuing to gestate. McKinley’s unilateral executive action established principles that remain the cornerstone of just cause discipline: proper notice, a fair evidentiary investigation, an opportunity to be heard, and nondiscriminatory treatment. The article then turns to the development of just cause standards in the 20th Century, which added other elements such as notice of workplace policies and the use of progressive discipline. Lastly, the article examines how just cause principles should be applied to allegations of electronic misconduct in the New Gilded Age to ensure reasonable and prudent disciplinary results, employee acceptance of adverse employment decisions, and a decreased likelihood of litigated claims of unlawful discrimination.

Keywords: social networking, just cause, labor and employment law, labor history

Suggested Citation

Herbert, William A. and McNally, Alicia, Just Cause Discipline for Social Networking in the New Gilded Age: Will the Law Look the Other Way? (August 19, 2016). University of Louisville Law Review, Vol 54:381, 2016. Available at SSRN: https://ssrn.com/abstract=2559705 or http://dx.doi.org/10.2139/ssrn.2559705

William A. Herbert (Contact Author)

Hunter College, City University of New York ( email )

695 Park Avenue
New York, NY 10065
United States

Alicia McNally

New York State Public Employment Relations Board (PERB) ( email )

NY
United States

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