Can I Be Fired For Attending the Capitol Protest?

 I'm hearing a lot of muttering about free speech rights relating to the Capitol protest/attempted coup last week. A number of people have been fired by employers after storming the Capitol, and they are complaining about their rights being violated. 

So this raises the question: Can I be fired for attending the Capitol protest?

Short answer is yes, with some limited exceptions.

But if your question is: Can I be fired for storming the Capitol?

The answer is yes, yes, a thousand times yes.

The difference is attending a protest versus engaging in clearly illegal activity. Those that stormed the Capitol are guilty of crimes ranging from vandalism to burglary to sedition to felony murder, among other things, so emloyers can definitely fire you for committing a crime. Extra bonus firing if you wore company insignia while committing the crime.

For protesters who had the sense to leave when things got crazy, there are some possible protections. 

In some states, employers' threats to terminate employees based on politics may be illegal. Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their legal off-duty participation in politics or political campaigns. California, Colorado and North Dakota also protect employees from being fired for legal off-duty activities, political or not. 

Illegal activities aren't protected at all, anywhere.

In general, remember that the First Amendment doesn't protect you at all in a non-government workplace, and government workers have little protection in such situations.

If your protesting landed you on the do-not-fly list and your job requires travel, that's a legitimate reason for employers to fire you even if there is some legal protection in your state otherwise.

In sum, all but a few of the protesters can be fired for attending last week's protest, and anyone who raided the Capitol can almost certainly be fired.

Once the insurgents are convicted, most states allow employers to discriminate against those with criminal records, so that's an extra bonus for them. 
 

Can I Be Fired Because Of My Political Beliefs?

 It's election time, and in these emotionally-charged times there are lots of disputes arising in the workplace over politics. Can you be fired because of your political beliefs? Maybe. It depends on where you live. 

Here are some things employers can't do during this political season:

Limit Discussions On Which Candidates Would Improve Working Conditions: While employers can certainly prohibit general political discussions and political campaigning at work, the National Labor Relations Act says that private employers cannot prohibit discussions about workplace conditions. Therefore, if employees discuss an employer's lengthy email about why a candidate is better for them as workers, then the employer can't fire employees who voice that the employer's email is full of misleading and incorrect information and that the other candidate is very clearly the better choice for working Americans. On the other hand, employers can force you, as a captive audience, to attend meetings and listen to one-sided political pitches on behalf of candidates unless you live in Oregon, which has the Worker Freedom Act. New Jersey has a similar law.

Discriminate Based On Political Affiliation: Not all states have laws prohibiting this, but many do. States that don't have such laws may have county or city ordinances that specifically prohibit political affiliation discrimination. 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.

Discriminate Based on Race, Sex, Religion, National Origin, Etc.: If your employer limits political discussions by some, but not all employees, then they may run afoul of discrimination laws. Much of today's partisan politics is about religion, for instance. Women's issues and racial issues are hot topics in this political season. The presidential candidates are of two different religions. The vice presidential candidates are of different races and sexes. If your employer wants only one point of view expressed in your private sector job, the First Amendment won't help you but discrimination laws might. On the other hand, if you express racist or sexist views that reveal your propensity to engage in discrimination, your employer probably has a duty to fire or discipline you to protect coworkers.

Prohibit Labor Union Insignia: While employers can prohibit wearing of most political buttons, shirts and other campaign items, it can't prohibit union insignia. They could probably, for instance, prohibit a button that says, "Biden," but not one that says, "UNITE HERE for Biden."

Reimburse You For Political Contributions: If your employer says you should write a check to a candidate and agrees to reimburse you for it, they are breaking the law and could even go to jail.

Prohibit Time Off to Vote: Most states, but not all, require employers to let you take time off to vote.


State Laws That Might Help

In some states, employers' threats to terminate employees based on politics may be illegal. For instance, in Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.

In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.

In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.

In Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.

Some states, like 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.

In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."

In general, remember that the First Amendment doesn't protect you in a non-government workplace. Most states have no legal protection against political firings. So most employees have little or no legal protection.

  

Be careful out there, and don't forget to vote.

Can You Be Fired For Being A Racist A**hole? Yes. Well, Maybe. Probably.

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.

Can You Be Fired For Your Facebook Posts? Yes (With Exceptions)

Do I really have to tell you to watch what you say on social media? Apparently I really do because I run into people all too often who were fired for inappropriate postings, emails, texts, or other comments. My best advice is this: don't put anything in writing that you don’t want posted on the front page of the company newsletter.

Examples of social media firings I've heard of that stand out are posting cruise pictures while on FMLA leave (doh!), posting a foul curse-laden rant about the company (probably legally protected), posting a photo of a nude museum statue (a coworker complained of sexual harassment even though they weren’t FB friends), and posting pictures of an office party gone wild (with some resulting retaliation by a boss captured on film). Basically, I’d say use your judgment and think twice, then think again before you post, whether pictures or just your thoughts. If you don’t think it would go over well on the company newsletter front page, don’t post it.

That being said, although HR does get involved in employee social media posts, 90% of the time it’s none of their business. And the NLRB would agree with me to the extent that employees have the right to gripe about and discuss working conditions. However, if the comments are racist, sexist or otherwise demonstrate that you are inclined toward unlawful discrimination or harassment, then I’d say it depends on the situation. You might be someone HR would want to give extra scrutiny to regarding your workplace behavior. 

But if you posted, say, a Nazi symbol on your Instagram but acted respectful and considerate of coworkers at all time, then I’d go back to my position that it’s none of HR’s business. On the other hand, posting a Nazi symbol, sexist comments or other evidence of a bias means that, if HR is watching or finds out about it, they’re on notice of the employee’s propensity to discriminate. If you do it at work, then the company could be strictly liable. So it’s a balancing act. You probably want to avoid being on that HR tightrope by watching what you post.

Most times it’s better for HR not to know what people are posting unless it somehow becomes disruptive at work. If HR is checking employee social media, they may accidentally find out about your disability, pregnancy, sexual orientation or other protected status and subject the company to potential discrimination claims.

If HR is going to scrutinize social media, personal emails written on work devices or other things that employees may think are none of their business, then HR should make a written policy and put people on notice. Otherwise, it will become a morale issue.

Some states have laws protecting employees for being fired for legal off-duty activities. Those laws may protect employees who post on their own time. 

For political posts, some states have laws that may help. For instance, in Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
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. In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people." Here in Broward County, it's illegal to fire employees based upon political affiliation.

So you do have some legal protection for some social media posts. However, use caution, especially during political season.

Your Employer Wants To Indoctrinate You With Their Politics

I recently found out about an organization called the Job Creators Network, which some big CEOS are involved in like Roger Ailes (you know, Faux News), David Hernandez of Liberty Power (formerly with, Enron), and other big corporate heads. Their major goal in life seems to be to indoctrinate employees into voting against their own interests.

Well, that's not what they say. They say:

America’s employees, particularly non-union employees, are an untapped reservoir of support for free enterprise. Job Creators Network’s E2E Communication Program leverages employee support by providing employers across America with the tools, materials, and guidance they need to educate their employees about the impact of government policies on their jobs, pay, benefits and families. E2E promotes a better-informed public by educating employers about information they can legally provide to their employees. A well-informed public is the best defense against bad public policy.

That's right. Your employer is going to do you the huge favor of telling you how to vote. They want you to be well-informed. They have an Employer To Employee Communications Program with a toolkit for employers to explain how to "educate" you on important issues.

They have a helpful website for employers to relay their political message to employees. Here's a good summary of the message. Unions = Bad. Minimum Wage Increases = Bad. Affordable Care Act = Bad. Regulations = Bad. Personal Injury Suits = Bad. Employers = Good. Big Business = Good. Let's reduce taxes on your poor boss and eliminate those nasty unions, regulations and employment laws.

If you buy into this, I have some land to sell you west of me (west of me is the Everglades). I find the whole concept of employers indoctrinating employees in politics terrifying. They have you captive, and now they get to fling propaganda at you at will. If they have their way if you complain about your exploding Pinto you'll have to do indentured servitude at Ford for 10 years as punishment for your chutzpah. We'll be back to company stores, locked fire-hazard sweat shops, and child labor in no time.

You can expect the indoctrination to ramp up as we get closer to the elections. If you want real information about how some of these issues affect employees and don't want to buy into the big corporate propaganda, here are some places you can look to get pro-employee information.

• The Center For Workplace Fairness: These guys have a terrific website about all kinds of employment laws and political issues affecting employees.
• AFL-CIO: Yeah, yeah. Unions = Bad, or so your employer tells you. Whether or not you like unions, this section of their website analyzes the hot political issues affecting employees. Check it out on your evenings off, weekends and legal holidays, which you can thank unions for. 
• National Employment Lawyers Association: I'm a member of this employee-side organization. Their website is informative for everyone, not just lawyers. If you want to know what employee-side lawyers are working on for employees, check here.
• National Council of State Legislatures: This is a nonpartisan organization that compiles lists of what legislation the various states have pending and where it is in the process. If you want to know what's going on in any state or on the federal level in labor and employment law, start here.

Of course, you can always check here if you want to know what's the latest in employment law. You can also check out my weekly column over at AOL Jobs.

Don't buy what your employer tells you is best for your wallet. They care about what's best for their wallet, not yours. Educate yourself and get informed about the issues before you vote.

Vikings Football Player Speaks Up For Gay Marriage, Is Fired: Can He Sue? Maybe

Chris Kluwe is a punter for the NFL. He used to play for the Minnesota Vikings. That is, until he started speaking up in favor of marriage equality. He got permission from the team to do some ads for the cause, but things changed when he wrote and published a letter to a Maryland state official defending a Ravens football player's right to free speech on the same subject. After that, his coach asked him to stop. He didn't.

His coach began to make negative comments about gays repeatedly in Kluwe's presence that they hadn't made in all the years he had worked for them. He also made comments to the effect that Kluwe, "would wind up burning in hell with the gays, and that the only truth was Jesus Christ and the Bible"

He was singled out for harsh criticisms that others had not been subjected to. The comments got increasingly angry, such as: "We should round up all the gays, send them to an island, and then nuke it until it glows."

He was instructed to kick in such a way that it helped the team but made him look worse in the stats. Ultimately, he was replaced. His full statement about what he says happened is here. A story that has the team's response is here.  The team is now investigating and maybe they'll do something, maybe not. 

Let's assume everything he says is true. Does he have a remedy? Let's examine what possible claims he may raise:

• Free speech: This would be a non-starter. I've written about the fact that there's no free speech at work here, here, here and here. The First Amendment protects you against government action, not corporate action.
• Sexual orientation discrimination: Minnesota has a law against sexual orientation discrimination, but there's no law protecting speech in favor of marriage equality. If he were fired for objecting to sexual orientation discrimination within the team, then he would be protected against retaliation, but there's still no openly gay football player in the NFL. The law in Minnesota does protect against perceived sexual orientation discrimination, but I see no indication that the coach actually thought he was gay. If Minnesota has an association discrimination provision in the law, then maybe he can argue he was fired for associating with gays. My guess is he's out of luck on sexual orientation discrimination.
• Political activity: Minnesota has a law on the books making it a crime to retaliate against an employee because of that person's political activity. I think this one may be a winner. The question will be whether he has a remedy under this law because it makes violations a misdemeanor. Any Minnesota lawyers out there want to weigh in?
• Contract: He almost certainly has an employment contract and I know absolutely zero about football contracts. I'd guess they can dump a player pretty much at will, although there may be some hoops they have to jump through. Unless he can only be fired for cause, or the contract says he can't be fired for political activity or for discriminatory reasons, he may have little or no remedy there. Anyone know what's in his contract?
• Religious discrimination: If his coach actually told him he'd burn in hell, this would be the way I'd probably go with it. The coach has strong religious beliefs against gay marriage and Kluwe doesn't share those religious beliefs. In Florida, with no law protecting against political activity discrimination or sexual orientation discrimination, this might be the only way to go with a case like this one. I recently wrote about whether religious discrimination laws allow harassment of employees for various reasons, which you can read here.

Can he sue? I'd say maybe. He has one possible federal claim, one pretty good state law claim and one possible state law claim. I'm guessing we haven't heard the last of Mr. Kluwe, so we'll soon find out.

I said it to conservatives and now I'll say it to liberals: it's best to keep those controversial opinions to yourself at work and in public. If you have a boss who holds strong contrary views, or if you're likely to offend your employer's customers with your opinions, keep them to yourself and your friends (but not in social media). I guess it's a good thing I'm my own boss . . .