Compelling Constitutional Conversations
- by Christopher Naughton
In wake of the recent Charlottesville, VA white supremacist rally and protest turned violent, numerous individuals who participated in the Friday night torch-lit rally or Saturday afternoon’s violent protest— have been ‘outed’ on social media as frontline participants— their faces posted on social media, and where possible, identified by name.
One identified individual, Cole White, lost his job at a California business known as Top Dog, a hot-dog restaurant in Berkeley, California. White was fired after he was named by a Twitter account devoted to outing rally participants.
No matter how odious one may find White’s purported political positions and actions to have been, should he have been fired for same? And do employees such as White have legal recourse?
Question: can your employer restrict your “right to free speech” both on and off the job? See Attorney Michael Trachtman’s response on an ALJ program:
“You are an At Will employee and your employer, theoretically can do what he wants.” — Employment Attorney Michael Trachtman on the ‘Facebook, Blogs & the Boss’ program
First, let’s clarify the cornerstone of this “free speech” conversation, encapsulated by the Business Insider’s Jim Edwards:
If White were an “at will employee”— i.e., an employee not governed by a special contract or an employee handbook guideline– then Top Dog has every right to demand that he leave. And it’s likely not a discrimination issue as KPIX 5 legal analyst Melissa Caen stated [*note: video below)“because going to a rally like this, participating like this, doesn’t make you a member of a protected class.”
White may have a cause of action, especially under expansive California laws protecting employees and political activity:
“No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” But as Caen points out “(White) could use this to bring a lawsuit, but the employer might not have an official ‘policy’ on this issue.”
We at The American Law Journal do have an employee policy protecting employees’ political activities but warn of their impact on the corporation:
“Political Activities
In recognition of its responsibilities as a business citizen, Law Journal Television encourages its employees to accept the personal responsibility of good citizenship, including participation in civic and political activities, in accordance with their interests and abilities.
Law Journal Television accepts without reservation the basic democratic principle that all employees are free to make their own individual decisions in civic and political matters. Therefore, no employee’s status with the company will be affected, in any way whatsoever, because of participation or non-participation in lawful civic and political activities.
Employees are reminded that the company has a journalistic mission, therefore, overt or overly partisan political involvement or statements could be deleterious to the company’s image and positioning of fairness and balance.”
Again, depending on the state where one works, employers tend to enjoy the greatest amount of leeway in limiting employee ‘speech’ when that speech (a) directly impacts the reputation or administration of its business; (b) is done during business hours (c) on the employer’s premises and (d) executed on devices owned by the employer.
Employees enjoy the greatest ‘free speech’ protections when (a) spelled out under an employment contract (b) implied or specifically delineated in an employee handbook or (c) when the employer is a government entity itself.
Best to check the guidelines before freely expressing oneself.