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Employees are not fully protected by the First Amendment

Private employment is at will. The most productive or most loyal worker is subject to termination at any time. Employers are not required to show cause or pay severance. The only exception is getting fired for a discriminatory reason that violates state or federal law.

Recent developments have people wondering if they can be fired for speaking their mind or expressing political views, especially off the clock and away from work. In many cases, the answer is yes, when “free speech” activities reflect poorly on the company or violate company policy or employment agreements.

What happens in Vegas does not stay in Vegas

In the wake of the protests and counterprotests in Charleston, Virginia, some attendees were “outed” on social media and subsequently fired by their employers. Companies quickly cut ties with employees photographed in Ku Klux Klan or Nazi regalia.

But what about carrying a Confederate flag or a tiki torch to protest removal of a statute? Or conversely, what about antifa or Black Lives Matter supporters depicted in clashes with alt-right marchers?

Courts have generally upheld the right of private employers to terminate employees for conduct in their private lives that is detrimental to the company’s goodwill, such as drunken debauchery or photo ops with hate groups.

For public employees, the standard is higher – does the private conduct compromise the ability of the employee or the agency to serve the public?

Don’t bite the hand that feeds you

Employees who badmouth their employers, especially on Facebook or Twitter, should not be surprised to get pink slips. Whistleblowers are protected from retaliation for reporting criminal activity or rights violations, but within limits.

In a recent case in Minnesota, the 8th U.S. Circuit Court of Appeals upheld the firing of six Jimmy John’s employees who complained about the company’s lack of sick leave. Rather than discussing labor law, which is protected speech, they insinuated via posters and press releases that the company’s sandwiches might be tainted by workers with contagious illness.

As the fired workers were involved in a unionization effort, the National Labor Relations Board and a three-judge appeals panel ruled that the firings were essentially retaliation. The full 8th Circuit appeals court disagreed, reinforcing that employees do not have a First Amendment right to disparage their employer’s products or services.

On the other hand, some experts say James Damore may have grounds for wrongful termination after Google fired him for posting a “manifesto” about gender diversity. Despite questionable science – asserting women are biologically more “neurotic” than men – his opinion was posted on an internal forum that Google created to discuss workplace issues.

Google asserts that Damore was let go because his incendiary treatise was derogatory and discriminatory, in violation of company policy and perhaps federal law. Damore has filed a complaint with the National Labor Relations Board, saying that he acted within his rights to discuss his working environment and his employer’s discriminatory practices.

Discrimination is not a business reason

The First Amendment is a smaller shield within the context of employment. Employers have some latitude to separate from employees for objectionable speech. But terminations cannot be based on a worker’s race, national origin, gender or religion.

These cases are always dependent on legal precedent, new interpretations, enforcement priorities or recent changes in the law itself. If you believe an employer has unfairly punished or fired you for protected speech, an employment law attorney can explore your legal remedies.

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