Human Resources and Law

Workplace, politics are volatile mix

First Amendment’s free speech protection does not necessarily extend to private sector employees, attorney says.

September 1, 2017
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Free speech is enshrined in the U.S. Constitution. But as some “alt-right” — a white nationalist movement — and conservative proponents are finding, that right is not a blank check to say what you want and keep your job.

A Vermont man rallied with white supremacists in Charlottesville, Virginia, on Aug. 11 and was fired from his job four days later. A Google software engineer published an anti-diversity memo Aug. 4 and Google terminated him three days later.

In both cases, the employers took action to distance their companies from any appearance of endorsing speech based on racial or gender hatred or discrimination.

The Google engineer, James Damore, filed a complaint against his employer with the National Labor Relations Board over the issue Aug. 7, but it remains to be seen whether his case will move forward.

Nate Plantinga, a labor and employment attorney at Miller Johnson’s Grand Rapids office, said it’s important for employees to understand a few things about speech as it relates to employment, especially in Michigan.

“The First Amendment is a right, not a protection, in the private sector,” he said. “Almost anywhere in the United States, unless the employer has changed this somehow by virtue of an employment contract or union agreement, employees are employed at will. This means (employers) can terminate an employee at any time. The great big glaring exception is you can’t fire someone for an illegal reason, such as on the basis of age, race, national identity or disability.

“The question is … whether political activity is protected by law. It’s not protected by federal law, and it’s not protected in Michigan.”

Plantinga said employers have to balance their right to terminate employees they disagree with politically against the need to attract and retain workers and sustain company morale. They also have to be careful for two legal reasons covered under the National Labor Relations Act (NLRA).

“Politics can be entwined with protected characteristics,” Plantinga said. “If you fired someone with a strong view on immigration policy who was at a political protest, you give them an opportunity to say, ‘You fired me for my national origin,’ which is a protected status.

“The second problem with reacting to somebody’s political expression or views is that federal law guards ‘protected concerted activity.’”

This means that if a group of two or more employees band together over work-related concerns, including safety, fair wages or inequity, the NLRA protects those employees even though they do not belong to a union and work in the private sector.

But an egregious action can strip away protected concerted activity rights, Plantinga said.

“You can get a lot of instances where employees are posting on social media about their co-workers, supervisors or the company, but if they are doing it with other co-workers, it might be a protected concerted activity. But say they use a racial epithet, a threat or act in a manner that is truly out of bounds, the NLRB can say that’s protected concerted activity, but we’re not going to overlook threats, racism or somebody who is abusive to others.”

Many companies have adopted core philosophies of diversity and inclusion. Plantinga said employees who act contrary to those values in public — even if they are not on the clock — will reflect poorly on the company and possibly cause a loss of revenue.

“(An employer) may decide they don’t want that person in their company,” he said. “They may decide that person’s behavior will damage the reputation of the company and will be difficult for other employees to work with and around, and it will be disruptive to team-based productivity, employee morale, etc. Those are all lawful and legitimate considerations.”

In light of alt-right activities and public counter protests and marches, Plantinga said some of his clients have decided to develop handbook policies about political expression.

“Most employee handbooks do not directly address political activity, but in the last year and a half to two years, that has been changing,” he said. “I have had some clients ask to develop policies about behavior outside the workplace. Employers, in some cases, have been reactive about disputes in their workplace (over political expression), and some are trying to be proactive.”

Plantinga said employees also risk termination from their political speech on social media and blogs, even if they include a disclaimer on their pages that their views do not reflect the views of their company.

“They can say, ‘Yeah, your views are your own. Our views are our own. Off you go,’” he said.

Although Plantinga said he doesn’t know of any recent Michigan lawsuits or published decisions regarding political speech, he has represented several local clients who have taken action against an employee.

“Most employers have no interest and actively avoid overreach when it comes to employees’ personal lives,” he said. “Most employers will react to what somebody does off their property and off the clock only when the connection becomes so direct or damaging that the employer doesn’t feel it has a choice.

“Typically, when one employee has done or posted something on social media and another employee is affected by it and brings it to employer’s attention — what does the employer do? He has to make a decision either way. Do nothing or act on it. No client I have spends any time surfing the internet trying to find what his employees are up to when they’re not at work. They respond when something is brought to them that’s already affecting the workplace.”

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