This week, Uno Pizzeria & Grill in Burlington, Vermont, reportedly fired an employee for participating in a white supremacist rally. Berkley-based hot dog vendor Top Dog was rumored to have done the same, but now claims that its employee resigned. Google fired one of its software engineers over his manifesto regarding diversity in the workplace. Wait. Isn’t that discrimination–and therefore illegal? Does this mean that if you don’t like an
employee’s politics you can fire him/her? Well, yes, sometimes, maybe, depending on the circumstances. Admittedly, I’ve hemmed and hawed, so which is it? Is such a firing legal or not? Read on and we’ll discuss…
(image from theday.com)
Doesn’t an employee have First Amendment rights? I get asked that a lot. Well, that depends on whether s/he is a public or private employee. If s/he works for federal, state or local government, then yes. You see, the First Amendment is part of the Bill of Rights, and the Bill or Rights only to government actions — specifically to what the government can’t do to the people. So, if you are a public employer, you cannot fire an employee solely for his or her politics. Let’s come back to that in a moment. The Bill of Rights, including the First Amendment, therefore does not apply to private corporations and their employees.
Does that make all private employees’ speech unprotected? No. Here are some instances in which an employee’s speech (and politics) will be protected–and therefore cannot be the basis for firing them:
- It is protected by a specific state law, for example one that prohibits discrimination against an employee on the basis of his/her political beliefs or legal after-hours activities or behaviors. Currently only New York, California, Colorado, North Dakota and the District of Columbia currently have such laws. At least some of these laws also limit how much an employer can attempt to influence and employee’s voting decisions;
- Protected, concerted activity under the NLRA: Employers are prohibited, under the NLRA from barring discussions about workplace conditions. Such speech would include union elections, or talking about specific candidate, and how that candidate might mean better working conditions for the employees;
- Political campaign materials (T-shirt, sign, slogan, picture, etc.) that includes a labor union insignia– as opposed to other political campaign materials that do not have a labor union insignia;
- The employee is objecting to discrimination (or, often other illegal activities protected by federal or state law). Discrimination based on race, religion, national origin, sex, and pregnancy are illegal under Title VII. Discrimination based on age is illegal under the ADEA and discrimination based on disability is illegal under the ADA/ADAAA. Firing or otherwise disciplining someone for objecting to or complaining about such discrimination is retaliation and is similarly illegal under those laws. Also many other federal (and state) statutes protect employees from reporting or complaining about behavior that they reasonably believe to be illegal or unethical. Now, here is where things can get even more interesting: an employer can limit discussion about politics to one particular point of view. The First Amendment does not apply there. If, however, that one point of view is also against a particular religion, anti-discrimination laws may apply. So if you consistently make derogatory comments about a particular political candidate, and those statements refer to the candidate’s race, religion, sex, national origin or another characteristic protected by federal and/or state anti-discrimination laws, you may be liable under those laws for discrimination by creating what is known as a hostile work environment for any employees who share those characteristics.
- You and your employee have entered into a contract — or there is a Collective Bargaining Agreement–limiting how and when an employee can be fired. In particular the contract might say the employee can be fired “for cause”. What does that mean? Does the contract say? What exactly does the contract say as to how and when you can fire that employee? Check before you go ahead and fire the employee, so you do not trigger a potential breach of contract claim.
Can there ever be a time when you should fire an employee based on politics? Yes. If in expressing his or her political views, the employee’s behavior is disruptive, threatening, or itself prohibited discrimination under the types of laws discussed above, then not doing so (or at least not imposing appropriate discipline) may open you up to liability.
So, yes, you can fire an employee, solely because of politics. The issue is whether it really is solely about politics. An employee might claim that the speech is protected, because it falls under one of the above categories– or is protected by some other applicable state or local law. Now, if you want to minimize your chances of being hauled before the EEOC, its state counterpart, or court, here are some measures you might consider:
- As much as possible keep the focus on work. There are obvious reasons for and benefits;
- Take decisive action against any discussions that the average person would find offensive, discriminatory, harassing, etc. Make it clear that you believe such conversations create a hostile environment, one not conducive to a safe, productive work environment and do not add value to the work at hand.
- For discussions about work conditions or issues that impact work conditions, consider having a discussion about that issue — if you can do so objectively.
- Make sure your own actions are consistent with your rules about this type of speech. If you are prohibiting political discussion and then you engage in it yourself, you could be asking for trouble later on.
OK, that’s all for now. Let’s chat again next week, shall we?
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Are you a N.J. employer/business owner? Join the new LinkedIn group, New Jersey Business Litigation Forum, run by my friend and colleague, Gene Killian. Click here for more info.
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