In a divided U.S., political protest becomes an employment issue
In the aftermath of last month”™s violent political protests in Charlottesville, Virginia, several social media users publicized the names of white supremacists participating in the right-wing march and rally. The publishing of the personal identifying information on the internet, a practice known as doxing, reportedly led to the firing of three participating members of white supremacist groups ”” two fast-food workers from Tennessee and Vermont and a welder from South Carolina ”” from their jobs. At the University of Nevada, students unsuccessfully sought the expulsion of a doxed fellow student who joined in the violent protests.
Also in the wake of the Charlottesville rally, two public safety employees ”” a Philadelphia firefighter and a police officer in Springfield, Massachusetts ”” made news reports for their social media postings supporting the white supremacist movement. The firefighter publicly apologized and the police officer was placed on administrative leave, but neither was removed from their jobs.
Earlier this month, ESPN sportscaster Jemele Hill in a Twitter message called President Donald Trump “a white supremacist who has largely surrounded himself w/ other white supremacists.” Her Trump comment brought a backlash, with White House press secretary Sarah Huckabee Sanders calling it “outrageous” and “a fireable offense.”
ESPN in a statement distanced the company from Hill”™s remarks, saying they “do not represent the position of ESPN,” and added that Hill recognized “her actions were inappropriate.” Hill in a subsequent tweet offered no apology, but expressed “regret” that she “painted ESPN in an unfair light.”
The firings and public backlash against right-wing protesters and Hill”™s job status in the wake of her characterization of Trump, have aroused national debate over employees”™ constitutional rights guaranteed by the First Amendment. It reads: “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.”
“When people talk about the First Amendment or free speech, the general idea is that it lets people express their opinions,” said Sachin S. Pandya, a professor at the University of Connecticut School of Law who teaches American employment law. “But the First Amendment protects people against the government. If government restricts your speech, then you invoke the First Amendment.”
“In most states, there is a very sharp separation between the rights of free speech by public employees versus private employers,” Pandya said. “The First Amendment is only applicable to state employers and employees, but doesn”™t apply to the private sector.”
Mitchell I. Weingarden, a White Plains attorney specializing in labor and employment law, said the First Amendment was not designed to prevent people from being fired from their jobs.
“Employers don”™t have to allow free speech,” he said. “An employer can terminate you for any reason except violation of the will of law, which covers discrimination based on considerations such as age, race, sex, national origin. There is no law that protects you over having certain political views or being outspoken.”
Robert B. Mitchell, a labor and employment law attorney at Mitchell & Sheahan PC in Stratford, said any negative publicity cast on a company by an employee could be seen as grounds for dismissal if it is considered harmful to the company”™s operations.
“Say you”™re a salesperson and people find out you were down in Charlottesville,” he said. “No one would sell or buy from you. If that becomes an issue that could slop into the workplace, it could be good cause for dismissal.”
Attorney Stuart M. Katz, a principal of Cohen and Wolf PC in Bridgeport, noted that negative publicity that results in a firing need not be political. “Say an employee is involved in a drunken brawl at a baseball game. Everyone reads in the newspaper that he got arrested. As an employer, I could think that”™s bad press for the company,” he said.
New York labor law prohibits discrimination in private-sector employment because of an individual”™s “political activities outside of working hours, off of the employer”™s premises and without use of the employer”™s equipment or other property, if such activities are legal.” New York defines political activities as running for public office, campaigning for a political candidate seeking elected office; and participating in fundraising activities for the benefit of either a candidate, political party or political advocacy group. The law does not cover participation in political rallies or social media messaging.
In Connecticut, state law protects both public-sector and private-sector employees engaged in activities cited in the First Amendment, “provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.”
“Connecticut is an unusual state because the statute extends the protection that a public employee would have to a private employee,” Pandya said. “You could always bring a lawsuit if you”™re fired, but whether or not you win depends on the facts of your case.”
Weingarden said that public employees and private employees who belong to labor unions are also afforded protection from dismissal if their union contracts specifically include a provision for free speech and assembly. Still, “I”™ve never seen an employee contract involving a defense against being dismissed that includes being outspoken or having political views opposite of employers,” he said.
Michael Carriger, an assistant professor specializing in management and leadership at Sacred Heart University”™s Jack Welch College of Business, said employee contracts could also spell out which activities are not welcomed.
“Generally speaking, what you do on your own time is your business,” he said. “However, it depends on what”™s in your employee contract. If it states you”™re a representative of the company, then you are not allowed to represent the company in a negative way, even on your own time. But most contracts do not have that clause.”
In the academic environment, “Universities would be hard-pressed to kick out a student short of the student doing something violent or against the code of policy of the university,” said Terrence P. Dwyer, professor of legal studies in the Division of Justice and Law Administration at Western Connecticut State University”™s Ancell School of Business. “Universities can sanction a student for something that happens off-campus ”” for example, a sexual assault.”
Yet Dwyer worried that expelling or sanctioning a student for off-campus political activities could spin out of control. “What happens when we shoot down messages we don”™t like? At what point do we stop?”
Randolph M. McLaughlin, a civil rights attorney and professor at Pace University”™s Elisabeth Haub School of Law, agreed. “The university is supposed to be an open marketplace for ideas,” he said. “Universities should not be policing the thoughts of students off campus.”
In the workplace, however, job firings and disciplinary action by employers like those that followed the violent Charlottesville protest could become more common.
“As the political climate becomes more polarized and contentious, employers are going to take a look at the political activities of their employees,” said attorney James L. Hyer, a partner at Bashian & Farber LLP in White Plains. That area of employment law is still relatively undeveloped, he noted.
“Due to the rise of social media and the ability to express one’s views on politics, employees should be concerned about either making their posts private or limiting who can see them, or maybe not posting at all,” he said. “This is not out of fear of retribution, but the understanding that what is posted online never really goes away.”