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.

Florida Retail Federation Supports Wage Theft, Loses Argument

If big corporations wonder why average Americans think they’re pond scum, they need look no further than the recent efforts of the Florida Retail Federation in favor of allowing companies to steal your wages. That’s right. The Florida Retail Federation has made two failed attempts now to keep wage theft legal. Charming, especially considering that wage theft is rampant in Florida.

Here’s how it all started. Miami-Dade County was the first county in the nation to pass a law against companies who steal employee wages. Here’s what Miami says about the ordinance:

The Wage Theft Ordinance policy is to eliminate and prevent wage theft. Eliminating the underpayment or nonpayment of wages earned by persons working in the County serves the public purpose by promoting economic security and dignity for those working in the County; by promoting business and economic development through the elimination of unfair economic competition by unscrupulous businesses that do not pay or that underpay their employees; and to relieve the burden on the public that subsidizes unscrupulous employers whose employees are forced to rely on public assistance because of unpaid or underpaid wages. An employer who is found to have violated the Wage Theft Ordinance by unlawfully failing to pay any portion of wages due will have to pay back-pay and liquidated damages to the employee in addition to administrative fees and hearing costs.

Sounds great, right? I mean, nobody supports employers who steal wages, do they? Wrong-o. In steps the Florida Retail Federation. First, they try to get the GOP-run legislature to pass a law prohibiting counties and cities from passing wage theft ordinances. It actually passed the Florida House, but the Senate had better sense than to come out in favor of having their constituents’ wages stolen.

What’s a big-industry group to do? Sue, of course. Fortunately, a local judge tossed the suit, saying counties have the ability to prohibit wage theft if they want.

The sad fact is that many employers, at least in my neck of the woods, are failing to pay their employees. Some employees are led on for months as the employer gets further and further behind, with promises that they will catch up. Some are simply never paid their last few checks. Some don’t get their last check when they leave. It’s theft, plain and simple. Big companies who provide products and services and don’t get paid cry theft and fraud and bring in the lawyers. If employees leave with one extra pen or paperclip, the police show up at their homes. Why shouldn’t their employees be able to do the same when they aren’t paid?

Wage theft should be a criminal offense nationwide. If sleazy employers aren’t scared of the Department of Labor, maybe they’ll pay up when the local sheriff comes knocking.

Supreme Court Wants State Employees To Die

Okay, maybe my headline isn’t quite what they said, but the subtext is there. In a case decided on March 20, 2012, the men in black said that, for state employees, they can take FMLA leave to care for family members, but not for themselves. Huh?

The reasoning is that, because states are generally immune from suit unless they waive their immunity, Congress had no right to pass the Family and Medical Leave Act unless it was to address sex discrimination under the 14th Amendment. The men on the court found that, to the extent FMLA allows time off to care for yourself, it addresses “a concern for discrim­ination on the basis of illness, not sex.”

The women on the court, along with Justice Breyer, had something to say about the decision. “In so declaring, the plurality undervalues the language, pur­pose, and history of the FMLA, and the self-care provi­sion’s important role in the statutory scheme. As well, the plurality underplays the main theme of our decision in Hibbs: ‘The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.’” They went into a detailed analysis of the stated purpose of FMLA, along with the legislative history. Throughout, they point out, Congress says FMLA addresses the issue of discrimination against women in the workplace. Specifically, it was to address the need for maternity leave without specifically pointing to pregnancy. “[T]he self-care provision, 29 U. S. C. §2612(a)(1)(D), prescribes comprehensive leave for women disabled during pregnancy or while recuperatingfrom childbirth—without singling out pregnancy or child­birth.”

The dissenting Justices give specific examples of women who appeared to testify before Congress to relay stories of how they were fired after taking maternity leave.

The solution the court offers? Maryland can pass its own law similar to FMLA and waive its sovereign immunity. I won’t hold my breath.

What did Maryland have to say for itself? “’[A] state’s refusal to provide pregnancy leave to its employees,’ Maryland responds, is ‘not unconstitutional.’” Whoa. Makes me glad I decided to move. Way to go, Maryland. Let’s fire the new moms!

For shame, Maryland. For shame, Supreme Court.

So much for the “family values” branch of the court. Now, let’s watch them gut health care altogether. Then we can all die unless we’re employed and our employer graces us with medical coverage.

Hm. I wonder who will do the scut work once all the poor people are dead. Maybe those robes can double as a dusting cloth.

A Simple Solution To Unjust At-Will Laws

Most employers can fire you for any reason or no reason at all. As I say in my upcoming book, that means they can fire you because they didn’t like your shoes that day. Or, as it turns out, the color of your shirt.

The law definitely needs to change. This appalling situation could happen to anyone. In all but one state (Montana) you can be fired because your boss didn’t like your shirt or your shoes that day or because they’re in a bad mood. And in this country, unlike most civilized countries, our health insurance is tied to our jobs. So you can lose both your job and health insurance coverage for your family and yourself, all because your boss was in a bad mood.

Then, to add insult to injury, our tax dollars pay for the cost of unemployment compensation and the side-effects of unemployment, all because your boss had a hissy fit one day and fired you without just cause.

I would suggest that there’s a solution that might help alleviate some of the huge societal burden, as well as the burden on individuals, that is cause by the reality of at-will employment. Every state in the nation already has a set of hearing examiners or referees who hear unemployment cases. If the employee is fired for misconduct, they don’t get to collect. But what about the employer who fires without just cause? Why not give the unemployment hearing officers one more power: the power to reinstate with back pay.

Why should taxpayers have to pay because someone was in a bad mood and fired an employee? Why shouldn’t they have to pay for their own folly? If they don’t want to reinstate, then they can pay the employee’s full salary for the entire length of time they would have collected unemployment.

So, constant readers, tell me. Why won’t this work? Why shouldn’t we impose as much burden on employers who terminate without just cause as we impose on employees who are fired for misconduct?

If you like my solution, tell your state legislators and members of Congress. If you think I'm wrong, gripe away. I'd love to hear from you.

Will Congress Fix Stupid Age Discrimination Loophole?

          In most discrimination cases, you only have to prove discrimination was one of the motives your employer had in taking action against you. For instance, if you announce you’re pregnant and are suddenly included in a mass layoff where others with less experience and less stellar reviews aren’t laid off, you have a pregnancy discrimination case. Sure, the need to cut back and restructure was one reason for the company’s decision, but your pregnancy was why they chose you.

It used to be that way in age discrimination cases too, until the Supreme Court in Gross v. FBL Financial 19 Services, Inc. decided the Age Discrimination in Employment Act required age be the only reason for the employer’s decision. I won’t go into the legalese on why they came to this conclusion (you can read more about it in the press release for the bill here), but the effects are devastating to age discrimination cases. 

Theoretically, if you’re laid off right after your 50^th birthday, the company could say one reason for picking you was they needed to restructure and they’d win, even if you could prove you were selected due to your age and that younger, less qualified employees were kept. Or, if you thought you were targeted due to both your age and national origin, they might win the age case just because you admit age wasn’t the only reason for their actions.

I’m not saying these arguments would be definite winners, because it’s a bit more complicated, but you can see the kind of ridiculous decisions that can result in age discrimination cases. Not only age discrimination cases are affected; lower courts have applied this same tortured reasoning to disability discrimination cases too.

Fortunately, a bipartisan effort is afoot to fix this stupid judicially-created loophole. The “Protecting Older Workers Against Discrimination Act”  S. 2189 has been introduced to make sure age and disability discrimination cases are treated the same as other types of discrimination, and are not subject to a heightened burden of proof. There were previous attempts since the Supremes made their ruling in 2009 to fix this problem that failed, so it’s not a done deal.

If you think fixing this loophole is a good idea, tell your member of Congress today.

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!

Are Federal Judges Hostile To Employment Plaintiffs? Report Says Yes

The National Employment Lawyers Association (NELA), which is the employee-side lawyers’ organization, just released a study called Judicial Hostility to Workers’ Rights: The Case for Professional Diversity on the Federal Bench. The statistics confirm what every employment law practitioner knows already: federal courts are mostly a terrible place for employees:

• From 1979-2006, the plaintiff win rate for employment cases (15 percent) was lower than non-employment cases (51 percent).

• For cases going to trial, employment discrimination plaintiffs (28.47 percent) won less often than other plaintiffs (44.94 percent).

• Employees succeeded on appeal only 9 percent of the time, while employers won 41 percent of appeals.

Judicial Hostility, p. 4.

The report points to the lack of federal judges who, as lawyers, actually represented, you know, people. I don’t mean corporations, which are now considered by the same federal bench to be people. I mean living, breathing human beings.

Employees face all kinds of judge-created obstacles. The report cites a few (my colleagues and I could probably name a dozen more):

• “Stray Remarks” – Allows judges to disregard discriminatory statements made by supervisors or other employees as merely “stray remarks,” and therefore not evidence of discrimination

• “Business Judgment” – Permits judges to defer to an employer’s “business judgment” instead of carefully examining whether an asserted justification for an adverse employment action was pretext for unlawful discrimination. Some courts have gone so far as to accept the defendant’s asserted reasons for the adverse employment action being challenged, even when the employer’s explanation is harsh or unreasonable.

• “Self-Serving Witness” – Enables judges to presume the credibility of testimony from defense witnesses with a vested interest in helping employers avoid liability, while categorizing assertions by or on behalf of plaintiff-employees as purely “self-serving.”

Judicial Hostility, p. 5.

The report cites to one other factor peculiar to federal courts: summary judgment. The fact is that summary judgment standards in federal court result in very few employment cases actually making it to trial.

• Between 1979 and 2006, employees in discrimination cases won only 4 percent of pretrial adjudications – the bulk of which can safely be assumed to have been on defendants’ motions for summary judgment.

Judicial Hostility, p. 8.

The report recommends that the President appoint judges from diverse professional backgrounds. The lack of judges who have worked for non-profit organizations that assist the poor and judges who have represented plaintiffs in employment and civil rights cases certainly skews the bench to the employer side.

I have another suggestion. Congress needs to step in. When the bench creates obstacles, Congress can lift them. They’ve done it with the Lilly Ledbetter Fair Pay Act, the ADA Amendments Act, and the VOW to Hire Heroes Act. They can fix some more of these problems by making the standards for proving and winning discrimination cases clear; by laying out the burden of proof for both plaintiffs and defendants so it’s not open to hostile interpretation; and by eliminating the judge-created doctrines that make employment law cases ridiculously hard to win.

Do you want change? Contact your member of Congress. Send them this report. Tell them that it's their job to make sure hard-working Americans don't get short-changed in federal court.