The news the last couple of weeks has included stories about businesses firing employees for reasons unrelated to the quality of their work.
First, Google fired James Damore for his controversial memo about gender and employment practices, which stated, among other things, that one “possible non-bias cause” of the gender gap in tech is the fact that women are more “neurotic” than men.
Then Twitter users began calling on the public to identify people who attended the white nationalist rally in Charlottesville that resulted in one death and a number of injuries and demanding that the alt-right marchers be fired.
Whether you’re an employer or an employee, you might be wondering whether firing people for expressing their opinions is legal. What about the First Amendment?
Actually, the First Amendment doesn’t apply to private employers. It prohibits the government from interfering in the free exercise of speech and religion.
A few states, including California, New York, Colorado, North Dakota and Montana, have laws prohibiting private employers from firing employees for legal, off-duty speech that does not conflict with the employer’s business-related interests.
It is, however, relatively easy for most employers to show that hate speech interferes with their business interests. For example, consumers may threaten to boycott the business unless the employee is fired.
It would seem, then, that private-sector employees have no rights to free speech, but that’s not the case.
First, while most employment is “at-will,” meaning the employee can be fired for any reason not specifically prohibited by law (or for no reason at all), an employee may have the protection of a union contract or an individual employment agreement.
Further, in a state with stronger protections, there will be many times that the employer would be unable to establish any interference with its business interests. Some California employment lawyers believe that Damore has a strong wrongful termination case against Google.
Also, National Labor Relations Board (NLRB) rules cover most employees in the private sector – even nonunion businesses.
Damore has already filed a complaint with the NLRB alleging: “Since on or about August 2, 2017, the above-named Employer has interfered with, restrained, and coerced its employees in the exercise of rights protected by Section 7 of the Act by threatening employees because of their protected concerted activities and by making threats of unspecified reprisals against employees because of their protected concerted activities.”
According to the NLRB website, a single employee may “engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.”
Whether you are an employer or an employee, please feel free to contact us if you have any questions about employment-law issues, including when employees can be fired for expressing their opinions.
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On Monday, August 21, all of North America will experience an eclipse of the sun. The path of totality will stretch across the country, from Lincoln City, Oregon, to Charleston, South Carolina. Those outside this path will see a partial solar eclipse.
While this is an exciting event, you do need to take proper precautions to avoid permanent eye damage, like solar retinopathy (when a sun burns a hole in the retinal tissues).
If you’re lucky enough to avoid permanent injury, looking at the sun directly still puts you at risk for getting a sunburn on your cornea (photokeratitis) which, as you might imagine, is quite painful.
The only time you can look at the sun directly is when the moon entirely blocks the sun’s bright face. This won’t happen at all unless you’re in the path of totality, and even there it will be brief.
See NASA’s safety information sheet for more information.Also, verify that your eclipse glasses are verified as safe. This week Amazon recalled a number of brands of eclipse glasses, alleged to be counterfeit.
If you can’t get eclipse glasses in time, check out these other safe viewing ideas, including pinhole projection.
