Yes, Your Political Beliefs Can Get You Fired

you for what you believe. Yea. And there are a few examples that got us thinking about this, the first one being the Google engineer James Daymore who wrote this widely circulated memo in which he talked about the biological differences between men and women, and he basically criticized the company's diversity initiatives. And then the company fired him. Yeah. When this one public, there was a huge out about

what he wrote. Um. And then he also had his defenders and when he was fired, Um, many people applauded that, and many people on the other side said that firing him was the wrong move. The company should not have sort of quashed conservative viewpoints. Yeah, And there's this argument that companies should allow differing viewpoints to exist, and our colleagues wrote an article about how this specific incident led to a lot of very lonely conservatives in Silicon Valley,

which is true. But he was also at work and criticizing his employers, so they think that they're in their right to fire him for that. Yeah, if you go public with a really searing criticism of what your company did, you can kind of expect there's going to be some retribution. I would think, Um, but what about a case where you're saying something political and it's totally unrelated to your

job and you still get fired. The very extreme example I'm thinking of is the handful of white supremacists, neo Nazis, alt right, whatever you want to call them, that were fired from their jobs after pictures of them at the

rally in Charlottesville went public. Yeah, we can think of all sorts of reasons companies wouldn't want these people to work at their companies, unjustified reasons for them firing them, Like, if you have a diverse workplace, that might be hard to work next to somebody who thinks that you're an inferior human. Um, you also make your company look bad. But I also think that this brings up an interesting question of what you do outside of work. The political

leaves you have may have consequences for you and your job. Yeah, we're talking about examples of people with right wing ideas who were penalized by their companies, but this question is actually relevant to anybody who wants to be outspoken and involved in a political cause on any side. Suppose you wanted to take the day off from work to attend the Women's March, or you were active in the Black

Lives Matter movement. You might want to know what your company's policies are about political speech and whether those policies are legal. And I think you and I as journalists have been thinking about this more than other people in other fields, because many media organizations and news companies have specific codes of conduct and there are ethics policies around this. A lot of journalists aren't supposed to participate in political gatherings and are supposed to seem more unbiased, so it's

something we're used to thinking about. But now I think people in other industries who don't have to see him unbiased, but are just working at jobs that might not have anything to do with politics. It's something that they are going to start thinking about too. Yeah, this question is

getting a lot of airtime. And of course whenever one of these incidents or examples goes viral, it spawns a hundred thousand online experts in employment law and First Amendment protections who say, on one side, um, at well, employment means that anybody can be fired at anything, for any time and there's nothing anyone can say about it, which

isn't quite right. Um. And then on the other side, you know First Amendment, The First Amendment protects everybody and you should be able to practice free speech at any cost, which also isn't exactly right. And so as confident as these experts are, we wanted to talk to an actual expert about what really can get you fired. Art Leonard is the Robert F. Wagner Professor of Labor and Employment

Law at New York Law School. He has focused on employment law, aids law, in lesbian and gay law for over thirty years, and he has his own monthly podcast called l g B t Q Law Notes. So a big question a lot of people are asking right now, can you lose your job for doing something political, even if you keep it totally out of the office. It depends who you work for, and it depends the nature of your job, and it depends exactly what are you

doing outside of the office. In fact, you'll find the lawyers answer to almost all these questions is always it depends on so many different factors. We have to distinguish, for example, between public employees and people who work for non governmental agencies and companies. Well, maybe we should start with that distinction private and public, because with with public employees the First Amendment comes into play. That is the

constitutional protection for freedom of speech. And also state constitutions have protections freedom of speech, but their protections that you, as a citizen have against the government. And if you are a public employee, of course you're also a citizen, so you still have that First Amendment right. And if the government is your employer, the government is restricted to

some extent by the First Amendment. The problem is that the Supreme Court has constructed a relatively complex body of rules governing the degree to which First Amendment rights attached in any particular situation to what public employees do very comp located. It dates really in terms of modern Supreme Court law to a case called Pickering, which goes back

half a century now. Pickering was a high school teacher who was very upset with the austerity budget proposed by the school board in his district and he felt they weren't adequately funding activities at the high school. And he went public with this with a letter to the editor of a local paper, and he got fired. And he said, well, I have a First Amendment right as a citizen to speak about a topic that's before the public. The public

has to vote on the austerity budget. Shouldn't I be in tided to speak about that and the school She said, yeah, but you're an employee of the school district and you're being disloyal and you're criticizing the board of Education and you're poisoning your relationship with the administration. How should that be resolved? Does he have a First Amendment right to write to the newspapers? And the Supreme Court said, well, he's writing about a subject of public interest that is

pending in the political process. So it's clearly it's commentary that should be at the core of the First Amendment that protects democracy right and the right of individuals to participate and articulate their views on questions of public interest. But on the other hand, the school district has a right not to employ people whose activities are disrupting the operation of the education system. If they can show that his activities disrupted the smooth operation of the school, then

the First Amendment shouldn't protect him from being dismissed. But they have to prove that. The school has to prove that allowing him to continue to be a teacher at the school will disrupt the educational process. And the court wasn't convinced to that. They said, you know, the school is going to be put to a high burden to show that it's disruptive because core political speech is heavily

protected by the First Amendment. So when I say it always depends, it depends on the facts of any particular case. But in the public sector of the First Amendment has

heavy protection. Now, I think if a public high school teacher was out there on a picket line holding a banner with a swasticker and yelling racist and anti Semitic things, I think the school board would have a pretty good case to discharge them, even though their demonstration is in some sense core political speech, because it's probable disruptive effect is very easy to imagine because what they're doing is so incendiary that it's going to upset the people that

they work with, the co workers, the students, the parents. There will be all kinds of disruption. I can imagine school board meetings with shouting parents, screaming, and fights breaking out. So in a situation like that, I think it's likely that the school board would win if that person was discharged and brought a First Amendment lawsuit. But say are COG and some bureaucratic machine working for palvinu and Services or that, I rus that they might have a harder time.

They might, They might. It depends on the facts of the situation. It depends on the conduct the person engages in. If they're engaging and very incendiary conduct and their court on the media and their picture and they're bearing a torch and they're screaming epithets and things of that sort, the chances that that will be disruptive are much much higher than if, like they're writing a letter to the

editor to the newspaper. It seems like it might be harder to do something completely in your private life nowadays if your name is attached to something, even if you don't say I'm an employee of such and such an organization. It's pretty easy for people to find that out through social media or other ways. So does that factor in when people are making these decisions like should people be worried about that about staying private if they're doing political

activities outside of work. I think they may have to. Part of the problem is that this body of law, as I mentioned the Pickering cases from the nineteen sixties. Uh, this body of law has developed over time, and some of the principles would develop before we had the Internet, before we had social media, before it was so easy to figure out who people were and who they work for. So it may be that the Supreme Court, when confronted with cases like this in the future, will adjust some

of its holdings to reflect the new reality. People have to be concerned about what they do outside the workplace if they work in a job for the government where they can be perceived as somehow representing the government's views. And you're saying that public employees are more protected, Well, they have the First Amendment, which in some cases will protect them. Although the Supreme Court decisions of a time

have been narrowing and narrowing and narrowing that. But when you go outside the government sphere into the private sector, it depends on totally different factors because the First Amendment is only restriction on government, not a restriction on private employers. But there are many circumstances where there are restrictions on private employers. For example, there are quite a few states that have statutes that say that you can't discriminate against

or discharge an employee for engaging in lawful off duty conduct. Now, a lot of the statutes were passed with heavy lobbying from the tobacco industry, which was concerned at a time where there was talk about employers firing smokers because they would present higher health care courts, and the industry wanted to protect smokers from being discharged from being smokers as long as they're not smoking at work if the workplace

has no smoking rule. So uh, these statutes were passed, and in some jurisdictions they were very narrowly written to protect people who were consuming lawful things like alcohol or tobacco. It didn't protect people who were smoking marijuana, although these days it might. I guess the question is, then, would participating in a on the extreme and a white supremacy rally be considered lawful off duty conduct if the person doesn't engage an unlawful conduct. Demonstrating for an unpopular cause

in the United States is not per se illegal. Of course, if you engage in violent activity and assaults, if you're carrying a weapon openly in a state that doesn't have open carry, then you're arguably engaged in illegal conduct. So a law of this type wouldn't protect you. But about hate speech, hate speech depends again on whether their statutes involved, and it also depends on the status of the employee and the nature of the workplace. UH. For example, most

employees are at will employees. That means their status, that contractual status with respect of their employer means they can quit any time they want for any reason they want, and the employer can fire them for any reason it wants,

as long as it's not an illegal reason. So we would have to find a statute that prohibits firing someone for a particular purpose, like an antidiscrimination statute which says you can't fire someone because of their religion or their national origin, of their race or sex, or something like that. So if you have a particular statutory limitation. Then the mere fact that the employe is an at will employee doesn't mean that you can discharge them in violation of

the statute. But we also have in many states what is called the common law rule, a rule not based on a statute but just judge made law that says you can't discharge somebody for a reason that would undermine the public policy of the state. And so we have to figure out what is the public policy of the state, what is its source, and is it just statutes or

might it also be constitutional state constitutional protections. California, for example, there was a body of case law developed saying that the California Constitutions Protection for Privacy protected employees from being discharged for various kinds of off duty conduct because they had a right to privacy that the employer couldn't intrude upon. And uh some states, like Massachusetts, for example, has a statute that protects employees from discrimination for their political activities

as long as they're legal. But some states say an employer who doesn't like Republicans can fire someone who they discover as a Republican. Depends what state you're ine, and it depends on their status. Now they're not in that

will employee. That's a totally different story. Employees who are represented by labor unions are usually not at will employees because the union negotiates a collective bargaining agreement with the employer that limits the terms on which employees can be disciplined or discharge and subjects those decisions to a grievance procedure that ends up usually with neutral arbitration to decide whether the employer's activity was proper under the contract. Employment

law is actually a rather complicated subject. Sounds like it, um. So there's a recent case that got a lot of attention, which is the Google engineer who wrote this long screed basically criticizing Google's policy, Google's diversity initiatives. That was discharged right and he was discharged, and a lot of people

weighed in on both sides of that argument. So I'm saying that he should have had a right to free speech or First Amendment protections, which we're learning now he probably didn't have a right to Google as a private sector company. And if he was an apt will employee, if he had a contract for a specified duration and they fired him before the terminal date of his contract,

then they would have to have just cause. They would have to satisfy a court that they had a good reason for terminating the contract, that somehow his conduct had

been inappropriate for somebody in that position. Now, Google is a very visible company, and it's a company that is perhaps vulnerable to consumer boycotts, and they might argue that an employee who very publicly articulates a particular controversial position could damage the reputation of the company, and that might be considered a just cause for terminating a contract of

specific duration. But it is an at will employe. It would depend what state he's in and whether the state has a law that forbids discriminating against someone because they express a particular political position. It's also interesting because what he was doing was directly criticizing the company's policy. So even though there was a political element to it because he was talking about diversity initiatives, he was also kind

of taking a stand against his own company. And I wonder if that could potentially factor, And if you needed to find cause for a firing, I think it probably would in in someone who had some kind of contractual claim based Let's say he has a five year contract or something like that and it's his third year and they want to fire him. I think they could probably persuade a court that they had a decent justification for firing someone who would publicly criticize the company's policy because

there's no First Amendment protection. There's no freedom of speech in the private sector unless the employer wants to grant. Also, I believe you mentioned off duty conduct. I believe this was happening at Google. Is that different where he was circulating this within the company, so it's not off duty conduct? And certainly, uh, this is this is one issue that has come up, for example, in the context of social media, that people will post stuff critical of their company on

their Facebook page. Can the company fire them for that if they're not using a company computer and only their Facebook friends can see it. Although we know that Facebook posts are leaky and friends forward things and all of a sudden things get out. Uh. And I would say that a company that wants to fire someone for posting something critical on a Facebook page probably can do it.

Although there is an argument to be made in the Supreme Court is actually going to be hearing about this whether it violates their rights under the National Labor Relations Act. If they're posting something with the intent and hoping to encourage fellow workers to combine to protest a particular workplace

policy or something like that. Is that concerted activity? Because under the National Labor Relations Act, employees have a right to engage in concerted activity with respect to their working conditions.

So someone is trying to initiate concerted activity through a Facebook posting, and many of her Facebook friends are actually coworkers, there's a plausible argument, although the Supreme Court might decide it's not so plausible that that is covered by Section seven of the National Labor Relations Act, which protects concerted activity.

Have the courts ever weighed in on what actually constitutes political speech, because it seems like there are some cases that would be obvious, right if you're if you're canvassing for a political candidate in your local district, that's that's political. But there are other things that have become so mainstream, like to say, support advocacy for LGBT rights or something that that may not necessarily be considered political because it's it's just more of a broad sort of humanity issue.

But that generally is considered by politically is broadly interpreted as matters of public concern, matter on which members of the public may hold different points of view, and matters of debate, the kinds of stuff that newspapers and magazines and media will report about. That's matters of public concern.

Purely private interests and disputes are distinguished from that. And there was a case involving an assistant district attorney in New Orleans who had some gripes about office policy, and she circulated an internal memorandum seeking signatures on a petition to get the district attorney to change certain office policies, and she was fired. Was she protected under the first Amendment and district attorney's a public official? First Amendment should apply?

But the Supreme Court said that the employer could fire her because she was disrupting the office and there was no public interest in it, and there was no interests. There was no public interest at all. They said it was internal office policies and gripes and things of that sort, about promotion policies and assignments and things of that. So so they do a line they said, that's not really

a matter of public concern. I might differ on that on the theory that it should be a matter of interest to any citizen of the city if there say, is discrimination in terms of assigning assistant district attorneys to particular kinds of cases and stuff, and that's law enforcement, that's public policy. But the Supreme Court drew aligned. They said that was an internal grievance. I think many of us, you know, a lot of people can get behind not

wanting to work along white supremacists or people who are violent. Um. But I think there's also a concern of chilling people's speech on the office. Are things that they do outside of the office. Um. I'm trying to think how to should should we worry about chilling anti Semitic and racist speech. That's I don't want to ask that question. But it's like, um.

But on the other hand, in the country with the first Amendments, when you're not talking about inside the workplace, people we generally feel should be free to express themselves, and that airing obnoxious ideas in the marketplace of ideas gets other people to contradict them and to have an argument to try to persuade people of what the correct point of view should be or the preferable point of view should be. So we generally don't like to see censorship.

That's the whole idea of the First Amendment and political speech being protected, that we allow people to argue out their points of view and public but certain kinds of speech are considered harmful. That's why we have hate speech laws, hate crime laws, and things of that sort, and why

they are controversial. And the Supreme Court has sometimes in one particular case, they struck down hate speech law, and some of the lower courts have stricken laws that focused almost entirely on speech and said, you've got to show that there's more than speech involved, that there's perhaps some incitement to illegal activity or something like that. Before we finish up, I just wanted to ask you. You've been

in this field for for decades. Are there things in your experience that used to be okay for companies to do that are just widely considered not okay or vice versa that um companies are doing more and more that they never would have considered before. Well, companies are being much stricter than they used to be on off duty

conduct that might affect worker performance in the workplace. And when I first got involved in teaching employment law and actually practicing before I started teaching back in the nineteen seventies and eighties, employers weren't drug testing employees. That's a

that's a more recent development. Now we have these zero tolerance policies, and even if someone's off due to use of marijuana or something like that purely recreational and they're in a state where it's not illegal, but an employer says, well, marijuana can have a continuing effect and it can affect people's ability to perform their job, and so we're gonna have a zero tolerance policy, and even if it's off duty, we're gonna just say if you test, policities of your out.

That's relatively new, certainly compared to when I first started out. Employers are also having much more access to information about employees because of social media, And before there was Facebook, you couldn't use Facebook to look up job applicants and see if they were on Facebook and if they were

engaged in activity you'd rather not be associated with. So one of the big issues now is the degree to which it's appropriate for employers to take action on job applicants based on research they do about them on social media, which didn't exist years ago. So they certainly have been big changes well, thanks so much for coming in and talk to us. All right, You're most welcome. Lawyers love

to say that it depends when you ask them questions. Yeah, if you were hoping for um, if you were hoping to come out of this interview with a rule of thumb for what you should and shouldn't do or what you can get away with at work, UM, you were out of luck. I do think that part of the reason it's so hard to say that there's a blanket rule for everyone is all of the you know, the different legal the complexity of a legal precedent and the

state laws that Art was discussing. But also it's it has to do with how many things have changed over the years about the way we work about technology, about social media, so like even the very definition of public and private is different. It used to be that you, I think we're a lot safer having um, fringe political ideas or any political ideas and never having them bleed

into your work life. Now, if you ever dare to take that on social media, UM, or go to a protest and get your picture taken, there's so many ways that your employer could find out you know, what you're into, and then that even goes into like what is on duty, what is off duty? Are technology and our work lives have changed such that we're always kind of working, so it's not as easy to know if somebody was interfering

with their work time when they did a political activity. Yeah, I mean, we're talking about the white supremacists who got fired. The way they got fired was through the practice of do sing, which is Internet speak for basically finding the personal information of people and posting it online and making it public, which is a relatively new practice that came

out of hacker culture on the Internet. I don't know how you would do that in pre Internet times, but that that's something that people have to watch out for now. He also mentioned so many specific cases where companies were able to make creative arguments that these employees that were fired, we're doing things that you know, violated their public image or got in the way of their work. Um. And so it's not to say that you would always lose if you took on a company, and he certainly cited

cases where the company is lost. But I think it goes to show that even if you think you have studied the case law, or you know what your state or your company allows. Um, you're not necessarily safe going out and saying any old thing in a public forum and knowing that your job is going to be guaranteed. Yeah. I mean, if a company deems you bad for their workplace there, you can turnish their reputation, you can create a hostile work environment. They're going to find a way

to get rid of you. On the other hand, companies don't want to chill employees into thinking that they can't be part of the political discourse. I wrote a story on the fired white supremacist and I talked to another lawyer and and what he argued was, you don't want it to be political in this case. It's a decency versus a hatred issue. You don't want your employees to think that they can't have different political views. But white

supremacy it goes too far. Some things transcend politics. And with that, let's go to have big takes, happy they takes. You can call in with your half big taken. Leave us a voicemail at two one two six one seven zero one six six Becca, what's your hot take? That's only hot enough for this show. It's about working out, not my first halt pig take about working out. Um, I like to be in workout classes where everybody is more fit than I am. And I've had this discussion

with other people. I just think, if everyone looks really in shape, then if I take the class, I'm going to look like them. Yeah. I think that's fair. I mean there are people who might be intimidated by feeling like they don't look like those people, or I don't know, super fit people aren't their type of person. You're just in it for purely aspirational reasons. The people who disagree with me, yeah that I say they're intimidated, they also say it wouldn't be the class for them. I think.

You know, if you like, go to soul Cycle and everybody looks like a Soul Cycle person and you're not, You don't look like that. You're like, this isn't the class for me. I'm not gonna able to do it. But are you talking about You're just talking about the like the fitness level based on how they look, not like how they dress or whether they seem like Jim people part of it. I think, how could it not be? You can't separate that, Oh, you wouldn't like me in

yoga class. I wear like a fifteen year old. Well, I mean I wouldn't inspire you, and not by my outfit anyway, but I can do like I can do a meanful wheel. That's really impressive. Thank you. I do yogo with you, all right, Francesca, what is your hat? Pictic? Call me old fashioned, but every once in a while I like to take a break from emojis and go with a good, nice old emoticon. What's that I'm young. Back in the olden days, we used to make smile faces.

I mean, I don't know why, but there are sometimes where I really specifically want like okay, sometimes you're using an email client that doesn't have a juice available. There are some of those old fashioned email clients around, but sometimes you just you just want to do the colon M dash close per ends, smiley face. It just feels it just feels more intimate. It's like a little more punk steampunk. Maybe I think it's cool. Like if you

g chat like I do it just automatically. Well, and then on your phone it's you have to like an emojis one tap, but you have to work hard actually to get the to get it in analog form. But I think it's We do have a colleague who sends like old school happy faces, and I think he's widely considered to be a psychopath for that reason. Maybe I am too, because I did it like twice today. I like the smiling without the nose. Does that make me with or without noses? Yes? There was so much more

creative expression available before emojis. That's the other thing is like you could be a nose person or a no nose person. You could be like a really elaborate smiley with hair, you know, with the squiggly lines. Now it's like it's all taken away from you. You know, it's all automated. You're sounding a little cratchety. Also, before when you sounded cool, I never sounded cool with this one. And this has been a half bag takes, half baked takes. Thanks for listening to game Plan. You can find me

on Twitter at Francesco. Today I'm at rs Greenfield and if you want to leave us a voicemail, please do at two on two six one seven zero one six six. Also check out our weekly newsletter. You can subscribe by going to Bloomberg dot com slash Newsletters and check in the game Plan box. If you like the show head on over to Apple podcast or wherever you listen and rate and review and subscribe. Thanks. This show was produced by Liz Smith and Magnus Henrickson. Head of podcasts is

Alec McCabe. See you next week. H my show, my show, This is my show. It was like, it's my show. Okay, let's close up. Sorry,