Can You Fire an Employee for Participating in Racist Behavior or Speech Off-the-Clock?

imagesFollowing the events in Charlottesville, Virginia involving a “Unite the Right” rally organized by white nationalist groups protesting the removal of a statue of Robert E. Lee, several participants in the rally were fired by their employers.

Immediately, the media and internet went abuzz with discussions about employees’ freedom of speech and the right to express their opinions, however repulsive they might be to the society, contrasted with the employers’ right to fire employees who damage the company’s reputation and destroy its goodwill.

Business or moral dilemmas aside, as a general rule, employers can fire employees for off-the-clock conduct or speech. While employees have the right to express their opinions under the First Amendment, their employers have the right to fire them for expressing such opinions. In other words, the freedom of speech, when it comes to employment matters, is a myth!

As with any area of the law, there are several exceptions to this rule:

  1. California, Colorado, North Dakota and New York have off-duty conduct laws that protect employees from being fired for legal activities in which they engage on their own time;
  2. California also prohibits employers from firing employees for political activities;
  3. Some off-the-clock speech may be protected under the National Labor Relations Act, which protects employees’ right to discuss their employment conditions;
  4. Public employees may have more (but not much more) freedom of speech rights;
  5. Employment contracts that have “for cause” termination provisions may affect the employer’s right to fire an employee for off-the-clock statements or behavior.

BOTTOM LINE: The above exceptions are limited, so the general rule that employees have no free speech rights applies in most circumstances, including those where an employee participates in a pro-Nazi march or some other racist activity or speech that brings negative media attention to the company and damages its customer goodwill.  

Leiza litigates non-compete and trade secrets lawsuits in a variety of industries in federal and state courts. For a consultation regarding a dispute involving a noncompete agreement or misappropriation of trade secrets, contact Leiza at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108 or fill out the form below.

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