Addressing a “McChrystal”

Most people have heard the news by now. Gen. Stanley McChrystal was relieved of his command of international forces in Afghanistan after his disparaging remarks about the Obama administration were published in Rolling Stone.  I had not intended to comment on this story, but so many people have asked me my opinion (offline) that I decided to blog about it.  Upon reflection, the story does have some application to labor and employment law issues.  In fact, I have decided to coin a new term for use in the employment law context — a “McChrystal.”

A “McChrystal” occurs when an employee publicly disparages or criticizes their employer and/or boss.  In my experience, this occurs with alarming frequency, particularly via social media.  What is amazing is how often employees are surprised that their “McChrystal” is discovered by their employer and even indignant about being held accountable for it.  Sometimes the employee even suggests that their “McChrystal” was private, despite being published on Facebook or Twitter.  Courts that have considered the issue disagree, generally holding that publicly accessible websites are just that — public. Thus, employees have not been successful in asserting invasion of privacy claims in these scenarios.

As for the response to a “McChrystal,” I have to agree with the Obama administration’s handling of the situation.  A subordinate cannot be allowed to publicly disparage his or her supervisor without consequences.  It undermines the ability to lead and on a very basic level calls into question the judgment of the subordinate.  Of course, private sector employers need to consider potential retaliation claims, the circumstances in which the comments occurred and any applicable state laws.  In general (pun), however, employers can demand that employees raise their complaints in an appropriate fashion and address the issue if they do not.