So, a Twitter campaign has been outing folks who attended the Nazi/white supremacy/alt right rally outside the University of Virginia in which a Nazi murdered a protester and injured many others by plowing into them with a car. Some of those who have been outed were promptly fired. I've been asked whether firing someone for attending a racist rally is legal.
The answer is yes. Well, maybe. Probably. There. Are you happy?
An employer who is aware of an employee's propensity to engage in race or national origin discrimination (or any other kind of discrimination) has a duty to maintain a safe workplace. That means firing or disciplining the worker, or taking other steps to make sure he or she doesn't engage in illegal harassment or discrimination in the workplace. An employer that fails to take action could be liable for punitive damages if the racist employee acts on his/her beliefs at work.
Thus, my initial answer, which is yes, you can be fired for being a racist a**hole. However.
Some states and local governments have laws protecting you from discrimination due to your political affiliation or activities. For instance, California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.
Thus, my second answer. Maybe. This is one of those situations where two laws rub up against each other. I would think a strong argument could be made that attending a rally like last weekend's would give an employer a legitimate reason other than political affiliation to fire or discipline an employee. Once the employee starts spewing racist stuff in public and waving swastikas, that may well cross a line. Will the courts decide that the employer has a legimate business to protect? Maybe. Even with government employees, the government may well be able to prove that the employee's free speech rights were outweighed by the government's right to efficient and orderly operation.
If, however, the employee has always been respectful to coworkers and customers of color and continues to do so after the rally, maybe the employer doesn't have a legitimate reason other than political affiliation to fire the person.
Still, I default to my third answer, probably. Most states have no legal protection for political firings. So most employees have no legal protection if they attend a racist rally. The employer probably has a duty to protect coworkers and customers from a racist. I suspect most courts will say firing someone for attending a racist rally that turned murderous is perfectly legal, maybe even required.
Showing posts with label activity outside work. Show all posts
Showing posts with label activity outside work. Show all posts
Friday, August 18, 2017
Friday, December 12, 2014
States With Pro-Employee Laws: No Firing For Legal Off-Duty Activity
Here in Florida, like many states, you can be fired for pretty much anything as long as it isn't discrimination, whistleblowing, making a worker's comp claim or some other protected activity. That means you can be fired because your boss doesn't like your hobby, your friends, the fact that you prefer whiskey over beer - just about anything they don't like about your non-work activities.
Most states allow this kind of nonsensical firing, and business owners have to pay higher unemployment taxes as a result of other employers' whims. Taxpayers pay the cost too, in higher taxes due to the need for public assistance, healthcare and a whole host of other services. It makes no sense at all.
But some states have seen the light. They have laws that prohibit employers from firing employees for legal off-duty conduct. Do you live in one of these states? Here they are:
California: CA Labor Code § 96 and 98.6 say no employee no employee can be discharged or otherwise discriminated against for lawful conduct occurring during nonworking hours away from the employer's premises. An employee who is discharged, threatened with discharge, demoted, suspended, or discriminated against in any manner in the terms and conditions of his or her employment is entitled to reinstatement and reimbursement for lost wages and benefits.
Colorado: Colo. Rev. Stat. § 24-34-402.5 says it's illegal to fire an employee because that employee
engaged in any lawful activity off the employer's premises during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally
related to the employment activities and responsibilities of a particular employee or
a particular group of employees; or is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer.
New York: N.Y. Labor Code § 201-d says employers can't make hiring or firing decisions, or otherwise discriminate against an employee or prospective employee because of legal use of consumable products or legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property.
North Dakota: N.D. Cent. Code § 14-02/4-03 (2003) says it's illegal for an employer to fail or refuse to hire a person, to discharge an employee, or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.
Some other states protect employees against firing due to the use of lawful consumable products and others protect only tobacco use. Why not more protection? Do we really need Big Employer monitoring our off-duty activities? If you don't like the thought of being fired because your employer thinks you shouldn't eat meat, shouldn't smoke, shouldn't do yoga, or shouldn't be a furry, then it's time to push for legal change in your state.
Most states allow this kind of nonsensical firing, and business owners have to pay higher unemployment taxes as a result of other employers' whims. Taxpayers pay the cost too, in higher taxes due to the need for public assistance, healthcare and a whole host of other services. It makes no sense at all.
But some states have seen the light. They have laws that prohibit employers from firing employees for legal off-duty conduct. Do you live in one of these states? Here they are:
But first, a pitch. This blog has been honored by being named one of the American Bar Association's top 100 blogs for the 4th year. They're asking for your vote for the top blog in each category. Please take one minute to vote for this blog in the Labor and Employment category. It takes one minute to register and vote. Now back to the post.
California: CA Labor Code § 96 and 98.6 say no employee no employee can be discharged or otherwise discriminated against for lawful conduct occurring during nonworking hours away from the employer's premises. An employee who is discharged, threatened with discharge, demoted, suspended, or discriminated against in any manner in the terms and conditions of his or her employment is entitled to reinstatement and reimbursement for lost wages and benefits.
Colorado: Colo. Rev. Stat. § 24-34-402.5 says it's illegal to fire an employee because that employee
engaged in any lawful activity off the employer's premises during nonworking hours unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally
related to the employment activities and responsibilities of a particular employee or
a particular group of employees; or is necessary to avoid, or avoid the appearance of, a conflict of interest with any of the employee's responsibilities to the employer.
New York: N.Y. Labor Code § 201-d says employers can't make hiring or firing decisions, or otherwise discriminate against an employee or prospective employee because of legal use of consumable products or legal recreational activities outside of work hours, off of the employer's premises, and without use of the employer's equipment or other property.
North Dakota: N.D. Cent. Code § 14-02/4-03 (2003) says it's illegal for an employer to fail or refuse to hire a person, to discharge an employee, or to treat a person or employee adversely or unequally with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.
Some other states protect employees against firing due to the use of lawful consumable products and others protect only tobacco use. Why not more protection? Do we really need Big Employer monitoring our off-duty activities? If you don't like the thought of being fired because your employer thinks you shouldn't eat meat, shouldn't smoke, shouldn't do yoga, or shouldn't be a furry, then it's time to push for legal change in your state.
Friday, April 27, 2012
As Ozzie Guillen Learned the Hard Way, There’s No Free Speech in Corporate America
The Miami Marlins suspended new Manager Ozzie Guillen for saying: “I love Fidel Castro,” and "I respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel Castro for the last 60 years, but that mother-f***er is still here."
First it was reported as a suspension without pay, but it turns out it’s a suspension with pay. He had to apologize for his remarks. No question; his remarks offended most of the community his employer serves. While you may not think they were that bad, trust me: the Cuban community was offended. If you don’t follow Cuban politics, just imagine someone saying they admire the KKK, Hitler or Bin Laden and you’ll get the drift.
Did he mean to offend? Probably not. Were the company’s customers upset? Absolutely. Still, some folks expressed shock that an employer could punish an employee for espousing his opinion. “What about the First Amendment?” they cried.
I’ve said it in my book and I’ll say it again. There is no free speech in corporate America. The First Amendment protects us from government action, not the actions of private companies. That means you can be fired because your private employer doesn’t like what you said (or what you wore), with very few exceptions.
Mr. Guillen got off easy compared to Brooke Harris, who was fired from her job as a teacher in a charter school for teaching about the Trayvon Martin case. Why the difference? Guillen probably has a contract saying he can only be fired for cause. Martin probably has no contract to protect her, and her state, like every state in the union but Montana, is an at-will state, meaning she can be fired for any reason or no reason at all.
Not all speech is unprotected. Here are some circumstances where your speech might have some legal protection:
Concerted activity: If you get together with coworkers or take action on behalf of at least one other coworker (not just on your own behalf) to protest or try to change working conditions, you may be protected under the National Labor Relations Act (NLRA). NLRA says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Neither Mr. Guillen nor Ms. Harris fits here.
Objecting to discrimination: If you object to illegal discrimination based on race, sex, religion, national origin, disability, pregnancy, age, or some other protected status, you are protected against retaliation by Title VII, the federal law prohibiting discrimination. Ms. Harris might have fit into this category if she were objecting to discrimination by her employer, but it doesn’t apply to objecting to other types of discrimination.
Political affiliation: Some states, counties and cities have laws prohibiting discrimination based on political affiliation. Mr. Guillen’s remarks might have fit within this category if his local government or state had such a prohibition. Had he been in the county just north of Miami, Broward County, there is an ordinance prohibiting such discrimination. Would he have filed a complaint? Doubtful. He kept his job and lost no money.
Objecting to illegal activity: If you’re objecting to an illegal activity of your employer, you might be a protected whistleblower. That certainly doesn’t help either Mr. Guillen or Ms. Harris.
Activity outside work: Some states and localities prohibit employers for firing or disciplining employees for activities outside work. However, even those laws have exceptions for activity that affects the employer’s reputation or the ability of the employee to do their job. There’s little doubt that Guillen’s comments both reflected on the Marlins and affected Guillen’s ability to get his job done, as demonstrated by the multiple protests that occurred.
Contract: This is what probably saved Mr. Guillen. If you have a contract saying you can only be fired for cause, then check what is says constitutes “cause.” Offending 70% of the customer base may well be cause (but it might not). It all depends on how it was drafted. Best read up before you give any press interviews if you think you’re protected.
Before you spout off at work (or anywhere) about something your employer might deem offensive, remember how little protection you have.
Employers are watching more and more closely. They want your Facebook password. They watch what you post on Twitter. They read your email messages at work. They look at the websites you visit. Soon, they’ll be asking to read your diary. Heck, if it’s on your work computer, they’ve probably already read it. Will they start asking for an extra copy of your house key? I predict some employer will do this within the next couple of years.
Watch what you say, and especially what you email, text or post, even while you’re at home. If you’d be embarrassed to see it on the front page of the company newspaper, you probably shouldn’t put it on your Facebook page.
There’s no free speech in corporate America. Big employer is watching.
First it was reported as a suspension without pay, but it turns out it’s a suspension with pay. He had to apologize for his remarks. No question; his remarks offended most of the community his employer serves. While you may not think they were that bad, trust me: the Cuban community was offended. If you don’t follow Cuban politics, just imagine someone saying they admire the KKK, Hitler or Bin Laden and you’ll get the drift.
Did he mean to offend? Probably not. Were the company’s customers upset? Absolutely. Still, some folks expressed shock that an employer could punish an employee for espousing his opinion. “What about the First Amendment?” they cried.
I’ve said it in my book and I’ll say it again. There is no free speech in corporate America. The First Amendment protects us from government action, not the actions of private companies. That means you can be fired because your private employer doesn’t like what you said (or what you wore), with very few exceptions.
Mr. Guillen got off easy compared to Brooke Harris, who was fired from her job as a teacher in a charter school for teaching about the Trayvon Martin case. Why the difference? Guillen probably has a contract saying he can only be fired for cause. Martin probably has no contract to protect her, and her state, like every state in the union but Montana, is an at-will state, meaning she can be fired for any reason or no reason at all.
Not all speech is unprotected. Here are some circumstances where your speech might have some legal protection:
Concerted activity: If you get together with coworkers or take action on behalf of at least one other coworker (not just on your own behalf) to protest or try to change working conditions, you may be protected under the National Labor Relations Act (NLRA). NLRA says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Neither Mr. Guillen nor Ms. Harris fits here.
Objecting to discrimination: If you object to illegal discrimination based on race, sex, religion, national origin, disability, pregnancy, age, or some other protected status, you are protected against retaliation by Title VII, the federal law prohibiting discrimination. Ms. Harris might have fit into this category if she were objecting to discrimination by her employer, but it doesn’t apply to objecting to other types of discrimination.
Political affiliation: Some states, counties and cities have laws prohibiting discrimination based on political affiliation. Mr. Guillen’s remarks might have fit within this category if his local government or state had such a prohibition. Had he been in the county just north of Miami, Broward County, there is an ordinance prohibiting such discrimination. Would he have filed a complaint? Doubtful. He kept his job and lost no money.
Objecting to illegal activity: If you’re objecting to an illegal activity of your employer, you might be a protected whistleblower. That certainly doesn’t help either Mr. Guillen or Ms. Harris.
Activity outside work: Some states and localities prohibit employers for firing or disciplining employees for activities outside work. However, even those laws have exceptions for activity that affects the employer’s reputation or the ability of the employee to do their job. There’s little doubt that Guillen’s comments both reflected on the Marlins and affected Guillen’s ability to get his job done, as demonstrated by the multiple protests that occurred.
Contract: This is what probably saved Mr. Guillen. If you have a contract saying you can only be fired for cause, then check what is says constitutes “cause.” Offending 70% of the customer base may well be cause (but it might not). It all depends on how it was drafted. Best read up before you give any press interviews if you think you’re protected.
Before you spout off at work (or anywhere) about something your employer might deem offensive, remember how little protection you have.
Employers are watching more and more closely. They want your Facebook password. They watch what you post on Twitter. They read your email messages at work. They look at the websites you visit. Soon, they’ll be asking to read your diary. Heck, if it’s on your work computer, they’ve probably already read it. Will they start asking for an extra copy of your house key? I predict some employer will do this within the next couple of years.
Watch what you say, and especially what you email, text or post, even while you’re at home. If you’d be embarrassed to see it on the front page of the company newspaper, you probably shouldn’t put it on your Facebook page.
There’s no free speech in corporate America. Big employer is watching.
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