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.

Orange-Americans Unite: Stand Up For Yourselves!

           Did you hear the one about the 14 employees who were fired for wearing orange shirts? If you didn’t, you don’t live in the UK or Ghana or anywhere in the U.S., because the story made the international news. I think the story hit a chord with people everywhere because it was just so outrageous. You come into work one day, the boss is in a bad mood and fires you because she didn’t like your shirt that day.

            Management said they believed the shirts were a protest over working conditions, so they fired the employees involved. Some of the employees were quoted saying they didn’t intend to protest.

            What I thought was really interesting were the lawyers quoted who said, because Florida is an at-will state,  the employees could be fired for any reason. That's true some of the time. As I say in my upcoming book, employers can fire you because they didn't like your shoes that day. However I don’t agree with the assessment that these employees have no legal protection. Employees do have rights, even when they wear orange.

            I should confess at this point that I represent a group of the Orange-American employees who were fired. I won't go into all the underlying facts at this point. Let’s just say there’s more to the story.

            What I will do is discuss generally some circumstances where even Florida employees can’t be fired because their boss didn’t like their shirts:

            Religion: If the clothing has religious significance, the employer can’t fire employees for wearing it unless it can show serious concerns such as safety or security. Orange is a key color for the Protestant religion, so if the color was worn for religious reasons, firing because of wearing the shirts would be religious discrimination.

            Disability: If the clothing or color was worn due to a disability, such as a spine-adjusting device, then the employer would have to accommodate the disability unless it could show an undue hardship.

            Discrimination: If not all employees were fired for wearing orange, and the employees not fired were of a different race, age, sex, religion, national origin, etc. than the people fired, it could be discrimination.

            Concerted activity: The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, 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.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”

            There have been lots of cases where firing employees because management didn’t like their shirt were found to be unlawful: where AT&T workers wore shirts that said “Inmate #” on the front and on the back said “Prisoner of AT$T”; where employees wore shirts protesting the use of retirees to bust unions and some employees wore shirts saying, “Union ‘til I retire, then scab in!” and “When I retire I will not scab. I will go fishing”; where employees wore shirts with the employer’s logo, cracked, saying, “I survived the Midstate Strike of 1971-1975-1979”; and many more. In each case, the employees’ shirts were concerted activity protected under the NLRA.

            I won’t comment on which of these circumstances apply to my Orange-American clients’ cases – at least, not yet. But I will say this: it could happen to you. We’re all Orange-Americans. Every American who works for a living and can be fired, from the janitor to the CEO. Every American who thinks our jobs shouldn’t be yanked away without good reason. Every American who wants to complain about working conditions but is afraid. Every American who can lose not only their jobs, but their health insurance, for any reason or no reason at all. Every American who can be fired for wearing a color their boss doesn’t like, and can then be told they aren’t allowed to work in their chosen profession for a year or two.

            American workers do have rights, even in Florida; you just don’t have many. But you do have some rights, if only you know how to exercise them. You also have the right to vote, and to petition your representatives to change the law. In this economy, shouldn’t an employer have more reason than an intense dislike of the color orange to fire you?

            Orange-Americans unite: stand up for yourselves!

Yippee - I Can Insult My Boss on Facebook Now!

You’ve probably heard about the case the National Labor Relations Board brought against a company for disciplining an employee based on insults she posted on her Facebook page about her boss. Well, it settled. So I expect to hear about a bunch of employees posting nasty comments about their bosses on Facebook, tweeting about how awful management is, and then wondering why the heck they were fired.

Please, please don’t post anything in social media you don’t want on the front page of the company newsletter. Don’t get yourself fired over something stupid.

The National Labor Relations Act and Concerted Activity

In re American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (October 27, 2010), is where the NLRB claimed a company violated the “concerted activity” provision of the National Labor Relations Act (NLRA). I personally like this provision a lot because it applies whether or not the company has a union, and covers pretty much every workplace. HR people and management-side lawyers don’t like to talk about it because it covers anything employees do for mutual aid or protection.

Here’s what it says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

If you’re complaining about working conditions, not just your own but also those of your coworkers, you’re possibly protected from retaliation under the National Labor Relations Act. Does that mean you should rush to post what a jerk your boss is? No. Not unless you want to be fired.

The Facebook Case and the Facts

The NLRB’s settlement of this case doesn’t mean that you’re necessarily protected. The facts of the case were not unusual, but they might not apply to you.

The company had a policy that prohibited: “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.” It also prohibited employees from depicting the company in any way in social media. That’s pretty broad. Part of the NLRB’s beef was that the restriction was too broad. The settlement was, in part, that the company would “revise its rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work.” The company also agreed that it “would not discipline or discharge employees for engaging in such discussions.”

Granted, the employee’s comments were pretty outrageous: "looks like I'm getting some time off. love how the company allows a 17 (company term for psychiatric patient) to become a supervisor," and saying the boss was "being a d***" and a "scum***." The company said she was rude and unprofessional, and violated their internet policy. Her coworkers then weighed in with comments supporting her and with further negative comments about the supervisor.

A big reason the NLRB found her activities protected was the fact that it resulted in comments from coworkers. If you post something just to vent and it doesn’t result in a discussion with coworkers, you’re probably not in the same boat. So tweeting that your boss is a jerk when your coworkers don’t follow you or comment is probably not going to be treated the same way.

Protesting Working Conditions Might Be Protected

While this wasn’t the first case involving protected comments, it was the first involving social media. Other cases where employee comments about working conditions were protected are where an employee was fired for criticizing unpaid two-hour sales meetings (also probably protected under the Fair Labor Standards Act and some other whistleblower laws, by the way); employees terminated for sending a letter protesting working conditions and that they were being told to spend large amounts of time on the company president’s pet project; and an employee who got a written warning for objecting to a supervisor’s lecture about radio headset volume.

So yes, protesting poor working conditions may well be protected under the National Labor Relations Act.

Why You Should Keep Your Mouth Shut

I still suggest you shut your mouth about any complaints you have, especially in social media. There are just too many ways you can mess yourself up, and the law has too many loopholes to give you much aid and comfort.

Intention is key: Your intent is all-important. If your employer thinks your intent was to retaliate, damage your boss’s reputation, damage the company, or anything but to improve working conditions, then you’re probably going to have to file for unemployment.

No solo act: Your comments have to be part of “concerted activity,” which is defined as “being engaged in with, or on the authority of, other employees, and not solely by and on behalf of the employee himself.” If you go it alone, you do it at your peril.

You might not be protected: There are also lots of exclusions, so many employees aren’t protected. Since the NLRA is meant mostly to protect attempts to unionize, supervisors, independent contractors (yeah, yeah, most employers get this wrong), domestic workers, agricultural workers, family member employees, managerial and confidential employees aren’t protected. If you’re high enough up, you can’t gripe and get away with it.

The company policy might be okay: The NLRB has found other provisions in employer policies didn’t violate the Act. For instance, in one case language that prohibited “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects” was allowed.

Bullying and harassment is legal: Let’s not forget that there’s still not a single state in the U.S. that has passed a law against workplace bullying. My post with further information about harassment and bullying is here. Bottom line is that a bully boss still has the power to discipline you, decide whether you get raises or promotions, and make your life miserable. Why tick him or her off if you aren’t protected from retaliation?

No free speech at work: The First Amendment doesn’t protect you unless you work for the government. There’s no free speech in corporate America. My post about what you can and should complain about at work and still be protected is here.

But I’m Sure My Company Did Something Illegal

So you think you were fired or disciplined for criticizing your boss, and you’re pretty sure you are protected. Don’t sit on your rights. You only have 6 months to file a complaint with the NLRB.

They will investigate to determine whether or not there’s cause for your charge. They may interview you, at work if you’re still there. You can have a union rep or coworker present with you. A report then goes to the Regional Director, who decides whether or not the case will go forward. Mostly, the cases are dismissed. Only about 1/3 go forward.

If you’re dismissed, you can appeal to the General Counsel’s office.

If the Regional Director finds reasonable cause, then they’ll first try to settle it. About 90% of the cases settle at this stage. If it doesn’t settle, it goes before an Administrative Law Judge and NLRB staff counsel will represent you. You can also have a private lawyer with you, but the lawyer’s role is limited since the case is not yours but the NLRB’s.

If you win, you can get reinstatement, back pay and interest. You cannot get emotional distress or attorney’s fees. The judge can also order that the employer cease and desist their illegal practices.

When in doubt, contact an employment lawyer in your state to get more information about your rights.