With Colin Kaepernick back in the spotlight for his recent advertising deal with Nike, and demonstrators marching Dallas streets to protest the shooting death of Botham Jean by an off-duty policy officer, employers should be reminded to brush up on their responsibilities to employees who voice their opinions in public protests.
Colin Kaepernick and the Employment Controversy
Last year, Kaepernick was the subject of much debate after he took a knee during the national anthem. Following the gesture, President Trump spoke out regarding NFL players following Kaepernick’s lead, stating that team owners should fire the “sons of bitches” for “disrespecting the flag.”
This statement sparked even more protests and further inflamed our nation’s culture. From a practical standpoint, this division generates questions regarding the rights of employers to terminate employees who participate in public protests (regardless of which side of the political spectrum the protester is on).
Here are some state and federal law considerations for employers wrestling with this issue.
At Will vs. Employment Contracts
Most employees are traditional “at will” employees, meaning they may be terminated at any time for almost any reason (so long as that reason is not unlawful, e.g. discriminatory). If, however, employees have signed an employment contract, employers’ rights to terminate those employees are determined by the contractual terms in the agreement. Failure to terminate an employee per the terms of a contract can lead to breach by the employer, subjecting that employer to risk of litigation.
What About Freedom of Speech?
The First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
From an employment standpoint, this means that government employees cannot be terminated for participating in public protests. However, these protections do not apply to private employers. Therefore, under federal law, private sector employers may terminate at will employees for voicing political beliefs or participating in political activities that the employer deems offensive.
In the social media age, employees should be mindful that their off-duty tweets and updates may garner employer scrutiny. Roseanne Barr learned this the hard way when she tweeted a racially charged comment about a former White House advisor and was fired by ABC within hours. While many employers have social media policies, it’s a good idea to review and update them periodically to cover new technologies and increased social activism.
Other actions by socially conscious employees may land them in hot water at work. Employees should guard against obvious associations between their activism and role as a company employee or officer – such as wearing the company’s logo apparel to a protest. With highly ranked key employees, the employer may be able to claim a termination was necessary to avoid reputational damages if the employee is readily associated with the company.
There is an exception, however. Because employers may not discriminate against employees “on the basis of sex, race, color, national origin, or religion” – a law that applies to both public and private sector employers – if an employee can show that his termination for participating in a public protest is connected with their sex, race, color, national origin or religion, that employee may have an argument that he or she is being subject to unlawful discrimination.
This law is also important because employers have a duty to prevent and promptly correct harassment and discrimination in the workplace. Consequently, an employer who condones harassment or discrimination by allowing employees to voice racist remarks risks violating this federal law.
Don’t Forget State Laws
Although termination of many private-sector employees may be permitted under federal law, certain state laws could restrict private employers’ rights to fire such employees. For example, some states have statutes prohibiting employers from discriminating against an employee for participating in “lawful off-duty conduct.”
Additionally, some states, have adopted laws forbidding employers from terminating employees who exercise their First Amendment right to free speech. Employers may be able to circumvent these state laws if the employee’s off-duty conduct involves a violation of the employer’s workplace policies (e.g. non-harassment policies) or interferes with the employee’s ability to perform his or her job.
The Court of Public Opinion
While the above are legal considerations for employers, there are also non-legal considerations employers must take into account prior to terminating an employee for participating in public protests. These include:
- Potential reactions and repercussions of such action (i.e. how stakeholders or the public may respond)
- Whether it could result in a potential strike by employees or unfair labor practice charge
- The impact of firing (or not firing) someone based on their political views
- What type of workplace attitudes the employer wants to promote
Do Not ‘Just Do It’
A termination is never something to be taken lightly. While it may be tempting to take Nike’s advice and “just do it,” an employer’s decision to terminate an employee for participating in certain political activities should be done carefully and on a case-by-case basis. Employers should always thoroughly evaluate each situation, and understand all legal and non-legal considerations before taking action.