The “Occupy Wall Street” protests are gaining steam across the country. Could employees who participate risk losing their jobs? Recent events show that the answer to this question is “yes,” at least in certain circumstances.
Public radio host Lisa Simeone, on Oct. 20, 2011, told the Baltimore Sun that she had been fired by the public radio series "Soundprint" because series executives saw her work as a spokeswoman for one of the groups involved in the Occupy DC movement as a violation of the series’ producer’s ethical code.
In addition, National Public Radio (NPR) announced on Oct. 21 that it will no longer distribute the member station-produced program "World of Opera" to about 60 stations across the country because the show is hosted by Simeone. NPR spokeswoman Dana Davis Rehm told the Associated Press, “Our view is it's a potential conflict of interest for any journalist or any individual who plays a public role on behalf of NPR to take an active part in a political movement or advocacy campaign. Doing so has the potential to compromise our reputation as an organization that strives to be impartial and unbiased."
NPR's ethics code states that "NPR journalists may not participate in marches and rallies" involving issues NPR covers.
However, North Carolina-based classical music station WDAV, which produces “World of Opera,” said it will itself distribute the nationally syndicated program beginning Nov. 11, 2011. The station said that Simeone’s involvement in a political protest will not affect her job as a music program host.
Look to State Law
Some states such as California, Colorado, New York and North Dakota protect employees from being fired for lawful, off-duty activity, but most don’t, according to Peter Gillespie, an attorney with the Chicago office of Fisher & Phillips. If an employer is doing business in a state without such a law and feels that an employee’s conduct outside of the workplace conflicts with the company’s culture and values, the employer is within its legal rights to fire them, Gillespie told SHRM Online.
Daniel Prywes, an attorney with Bryan Cave in Washington, D.C., noted that “First you need to distinguish between political activity in the workplace and political activity outside of the workplace.” For activities outside of the workplace, other than union activity, federal law does not prohibit employers from disciplining or terminating employees because of their political views, he said. “Therefore, one needs to look to state law,” he emphasized, echoing Gillespie’s statements.
Further, even if there is no specific state statutory protection, employers may face limitations on their power to restrict employees’ political activities through a state’s public policy exception to the at-will doctrine, Prywes said. Many states recognize a tort for wrongful discharge where an employer’s conduct toward an employee violates a clear mandate of “public policy.”
The scope of the public-policy exception varies from state to state and depends primarily on judge-made law. Many state courts are hesitant to create exceptions to the at-will rule unless the public policy at stake is very clearly recognized and fundamental, Prywes added. And there is very little case law in this area, he said.
Is This a Good Idea?
Even if there is no state law prohibiting an employer from taking action against an employee for participating in political activity outside of the workplace, is this a good idea? “An employer should look very carefully before firing someone for their political views,” Gillespie said. The employer should look at factors other than the content of the expression, he said. “Can they point to an effect on the workplace or some other business reason they are making this decision?”
In addition to possible legal ramifications, employer action of this type can create morale or public relations issues, Gillespie continued. It may not be the best idea to “say you don’t want someone with a particular political point of view, especially if you are trying to foster a diverse culture” in the workplace.
Also, Prywes noted, it may not always be so clear where the line falls between unprotected activity and activity protected under another federal or state statute. For example, “What if someone goes to a gay rally and they are fired? Have they been fired because of the rally or because of their sexual orientation?” In states that prohibit discrimination based on sexual orientation, this employer conduct could be highly problematical.
Or, Prywes continued, if an employee’s political activity could in any reasonable way be seen to touch on terms or condition of employment, disciplining the employee for that activity could raise issues under federal collective bargaining laws, even if collective bargaining is not mentioned at all.
Political Activities in the Workplace
Employers have more latitude for conduct occurring in the workplace, Gillespie said, because “within the workplace, an employer has a legitimate interest in insuring productivity and minimizing disruptions.” As an employer, “you don’t want to discourage normal conversations, but if someone isn’t doing the job because of a focus on political issues, then the employer has the right to enforce workplace discipline rules.”
Prywes recommended that, as a good management practice, employers should “let employees know what types of political activity are permitted and not permitted in the workplace by publishing a policy or ‘code of conduct.’ ” The policy should address such issues as use of company facilities, including e-mail and public areas, for political activities; anti-solicitation rules in the workplace and rules regarding distribution of political materials on company premises.
The guidelines should also address off-the-job political activity, Prywes noted, “especially if it is of a nature that may undermine the employer’s business interests.”
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.