WASHINGTON, August 27, 2017 – Can an employer fire an “Alt-Right” employee who participates in activities outside of and away from the workplace and completely outside of work hours?
Protected in the First Amendment to the Constitution of the United States, freedom of speech includes the right to conduct activities, protest and speak non-threatening messages regardless of the message’s content. This includes the right to publicly proclaim you are a bigot, a racist, a Nazi, a Jew-hater, a black-hater, a Muslim-hater, a Mexican or Hispanic-hater, a White Supremacist, a member of the Ku Klux Klan or any other disgusting group whose themes and causes are polar opposites to the values held by decent individuals and Americans in general.
The right of free speech applies to the President of the United States, whose bigotry and ignorance recently was displayed when he commented on the recent Charlottesville tragedy by proclaiming that “both sides had culpability.”
Free speech can also be non-action or no speech. Thus, it gives Jewish groups the right, in light of the President’s ignorance, to choose not to invite him to a telephone conference call, to offer the Jewish community greetings, where such calls were made by past presidents for the upcoming Jewish High Holy days.
Notwithstanding the larger realm of political rights and wrongs, being a private employer in today’s world brings, among a multitude of other things, concerns about employing individuals who make up one or more of the disgusting classes of haters. Thus, is an employer allowed to fire someone who, outside of work, participates in, organizes or attends a hate rally?
Does a black employer who learns one of his employees is a member of the Ku Klux Klan have to continue that person’s employment? How about a Jewish employer who becomes aware that an employee is a Nazi or a Nazi supporter?
A Chattanooga, Tennessee man lost his job at a burrito restaurant and another man lost his Pizza Parlor job in South Burlington, Vermont. A Ladson, South Carolina man was fired from a construction company position, and another man lost his job at a hot dog shop in Berkeley, California. All these men were seen among the hate groups espousing their messages on social media at the demonstration in Charlottesville.
These firing cases are consistent with many in the past.
During the 2004 presidential campaign, a woman was fired from her job in Moulton, Alabama because her car had a Kerry/Edwards bumper sticker. Her boss was a strong George W. Bush supporter.
In 2011, a waitress at an Outback Steakhouse in Illinois was fired for wearing a brightly colored bracelet with the motto, “Don’t Tread On Me.” That Gadsden Flag motto was used as a symbol by the Tea Party, and the woman’s mother had gotten her the bracelet at a Tea Party event. After patron complaints, the waitress was fired.
Which one of these actions could get individuals disciplined or fired?
- Hanging political cartoons on their office doors.
- Sending emails to their colleagues soliciting support for a controversial cause.
- Writing a blog at home stating opinions about a local campaign and posting it on Facebook.
- All of the above.
For individuals working in the private sector, the answer is 4.
The legal answer to requiring continued employment of a “hater” employee is, unfortunately, a sound “maybe.” The practical answer is, fortunately, that there are legal ways to fire.
To begin, most people would offer that the right to free speech would protect their jobs.
While the law protects someone’s right to say something, it does not support that individual’s claim to continued employment.
There is no such thing as free speech in corporate America. Free speech and First Amendment arguments do not apply to private employers. They are protections against government censorship.
It is 100% legal for employers to terminate employees based on speech.
Eliminating the free speech discussion, the general rule of employment in the United States is that employees work “at will,” meaning that employers do not need a good reason to fire them. Most employees can be fired at any time for any reason, except for discriminatory, or illegal reasons. Mostly these illegal firings are restrictions concerning a defined list of protected classes such as race, religion, sex, national origin, disability and the like.
An employee can be fired simply because the employer does not like the color of the shirt the employee was wearing.
Where does hateful activity fit into this scheme? These despicable individuals routinely argue that their speech and activity are political.
Many states, and even some counties and cities have laws that prohibit discrimination based on off-of-the-job political activity. These laws are aimed exactly at activities such as attending a hate rally. The broadest of these laws, those of New York and California, make it illegal to discriminate on the basis of an employee’s political activity or belief as expressed either inside or outside of work, unless that activity interferes with the functioning of the business.
So therein lies the basis for an employer to get rid of a hater. The laws give employers room if off-duty activities affect job performance, office morale, or the company’s “bottom line.”
Judges, and juries, who are collectively the conscience of our communities, have not found it difficult for an employer to “get to” a legal firing, despite state or local laws prohibiting such a firing, when the employer indicates that the employee’s off-duty activity and persona disrupted company morale by making either the employer or other employees uncomfortable. The drop in morale can easily translate to the employer’s business and employees suffering.
There are good, strong laws across the country that protect an individual’s political beliefs, effectuated by the right to vote as he or she chooses and governing the degree to which an employer can push in an effort to get the employee to vote for the employer’s candidate of choice. These themes have had interesting and differing outcomes, but none approach the hate issues now dominating the news.
Earlier this year in a case that was surprising because of the facts involved, a January North Carolina Supreme Court decision upheld a sheriff’s right to fire deputies who declined to make campaign contributions to the sheriff’s political campaign. The court ruled that deputies who worked directly for the sheriff do not have the same protections as county government workers when it comes to political activity.
It would be one thing if the deputies supported another candidate. Then, the sheriff arguably could be upset that his trusted deputies did not support him. These deputies however, simply refused to make monetary donations for their boss.
In other words, laws across the country are certainly open to interpretation.
Wearing political buttons at work can be prohibited, but wearing a union button cannot.
These examples do not approach the issues of hate. Hate cannot and should not be tolerated. If an employer learns of the hate activity of an employee, the laws that exist in every corner of the country provide a legal path to firing that individual.
While silencing any voice is not American, hopefully those who espouse hate will be fired from their jobs.
Too bad the President doesn’t have a boss. Oh yes, all his bosses get to vote again in about 3.5 years.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.