WEBVTT - Yes, Your Political Beliefs Can Get You Fired 0:00:00.560 --> 0:00:04.280 It's a politically charged time, and people aren't staying quiet 0:00:04.320 --> 0:00:07.000 about what they think. They're more likely to take their 0:00:07.000 --> 0:00:11.119 beliefs public in the form of protests and rallies. But 0:00:11.240 --> 0:00:14.680 what happens when your boss or your coworkers don't agree 0:00:14.720 --> 0:00:18.120 with you? When can you be fired for being political? 0:00:19.280 --> 0:00:33.599 This is game Plan. Hi. I'm Francesco Levi and I'm 0:00:33.640 --> 0:00:37.320 Rebecca Greenfield, And this week we're talking about whether and 0:00:37.440 --> 0:00:40.400 when it's okay for your company to take action against 0:00:40.400 --> 0:00:42.360 you for what you believe. Yea. And there are a 0:00:42.400 --> 0:00:44.840 few examples that got us thinking about this, the first 0:00:44.880 --> 0:00:47.560 one being the Google engineer James Daymore who wrote this 0:00:47.680 --> 0:00:50.800 widely circulated memo in which he talked about the biological 0:00:50.800 --> 0:00:54.080 differences between men and women, and he basically criticized the 0:00:54.120 --> 0:00:57.639 company's diversity initiatives. And then the company fired him. Yeah. 0:00:57.680 --> 0:01:00.480 When this one public, there was a huge out about 0:01:00.480 --> 0:01:02.640 what he wrote. Um. And then he also had his 0:01:02.680 --> 0:01:06.320 defenders and when he was fired, Um, many people applauded that, 0:01:06.400 --> 0:01:10.600 and many people on the other side said that firing 0:01:10.720 --> 0:01:13.479 him was the wrong move. The company should not have 0:01:13.920 --> 0:01:19.080 sort of quashed conservative viewpoints. Yeah, And there's this argument 0:01:19.200 --> 0:01:23.200 that companies should allow differing viewpoints to exist, and our 0:01:23.240 --> 0:01:26.760 colleagues wrote an article about how this specific incident led 0:01:26.840 --> 0:01:30.759 to a lot of very lonely conservatives in Silicon Valley, 0:01:31.520 --> 0:01:34.000 which is true. But he was also at work and 0:01:34.040 --> 0:01:38.080 criticizing his employers, so they think that they're in their 0:01:38.240 --> 0:01:39.959 right to fire him for that. Yeah, if you go 0:01:40.080 --> 0:01:44.520 public with a really searing criticism of what your company did, 0:01:45.760 --> 0:01:48.040 you can kind of expect there's going to be some retribution. 0:01:48.120 --> 0:01:51.080 I would think, Um, but what about a case where 0:01:51.360 --> 0:01:54.480 you're saying something political and it's totally unrelated to your 0:01:54.560 --> 0:01:58.320 job and you still get fired. The very extreme example 0:01:58.360 --> 0:02:02.840 I'm thinking of is the handful of white supremacists, neo Nazis, 0:02:03.080 --> 0:02:05.640 alt right, whatever you want to call them, that were 0:02:05.640 --> 0:02:09.160 fired from their jobs after pictures of them at the 0:02:09.320 --> 0:02:13.360 rally in Charlottesville went public. Yeah, we can think of 0:02:13.360 --> 0:02:16.120 all sorts of reasons companies wouldn't want these people to 0:02:16.120 --> 0:02:19.320 work at their companies, unjustified reasons for them firing them, Like, 0:02:19.400 --> 0:02:21.320 if you have a diverse workplace, that might be hard 0:02:21.360 --> 0:02:23.200 to work next to somebody who thinks that you're an 0:02:23.200 --> 0:02:26.440 inferior human. Um, you also make your company look bad. 0:02:26.880 --> 0:02:29.320 But I also think that this brings up an interesting 0:02:29.400 --> 0:02:31.960 question of what you do outside of work. The political 0:02:32.040 --> 0:02:35.280 leaves you have may have consequences for you and your job. Yeah, 0:02:35.320 --> 0:02:38.560 we're talking about examples of people with right wing ideas 0:02:39.000 --> 0:02:41.560 who were penalized by their companies, but this question is 0:02:41.600 --> 0:02:45.200 actually relevant to anybody who wants to be outspoken and 0:02:45.280 --> 0:02:48.760 involved in a political cause on any side. Suppose you 0:02:49.040 --> 0:02:51.959 wanted to take the day off from work to attend 0:02:51.960 --> 0:02:54.480 the Women's March, or you were active in the Black 0:02:54.520 --> 0:02:57.960 Lives Matter movement. You might want to know what your 0:02:57.960 --> 0:03:01.440 company's policies are about political speech and whether those policies 0:03:01.480 --> 0:03:04.119 are legal. And I think you and I as journalists 0:03:04.280 --> 0:03:07.240 have been thinking about this more than other people in 0:03:07.280 --> 0:03:10.880 other fields, because many media organizations and news companies have 0:03:10.960 --> 0:03:14.200 specific codes of conduct and there are ethics policies around this. 0:03:14.320 --> 0:03:17.560 A lot of journalists aren't supposed to participate in political 0:03:17.600 --> 0:03:20.120 gatherings and are supposed to seem more unbiased, so it's 0:03:20.120 --> 0:03:22.720 something we're used to thinking about. But now I think 0:03:23.480 --> 0:03:26.240 people in other industries who don't have to see him unbiased, 0:03:26.240 --> 0:03:27.960 but are just working at jobs that might not have 0:03:27.960 --> 0:03:30.480 anything to do with politics. It's something that they are 0:03:30.520 --> 0:03:33.239 going to start thinking about too. Yeah, this question is 0:03:33.280 --> 0:03:37.080 getting a lot of airtime. And of course whenever one 0:03:37.120 --> 0:03:41.680 of these incidents or examples goes viral, it spawns a 0:03:41.760 --> 0:03:47.400 hundred thousand online experts in employment law and First Amendment 0:03:47.400 --> 0:03:52.640 protections who say, on one side, um, at well, employment 0:03:52.680 --> 0:03:55.400 means that anybody can be fired at anything, for any 0:03:55.400 --> 0:03:57.760 time and there's nothing anyone can say about it, which 0:03:57.800 --> 0:04:00.400 isn't quite right. Um. And then on the other side, 0:04:01.240 --> 0:04:04.080 you know First Amendment, The First Amendment protects everybody and 0:04:04.120 --> 0:04:06.440 you should be able to practice free speech at any cost, 0:04:06.480 --> 0:04:09.680 which also isn't exactly right. And so as confident as 0:04:09.720 --> 0:04:12.920 these experts are, we wanted to talk to an actual 0:04:13.000 --> 0:04:20.080 expert about what really can get you fired. Art Leonard 0:04:20.200 --> 0:04:22.840 is the Robert F. Wagner Professor of Labor and Employment 0:04:22.920 --> 0:04:25.920 Law at New York Law School. He has focused on 0:04:26.040 --> 0:04:28.320 employment law, aids law, in lesbian and gay law for 0:04:28.400 --> 0:04:31.400 over thirty years, and he has his own monthly podcast 0:04:31.480 --> 0:04:41.400 called l g B t Q Law Notes. So a 0:04:41.400 --> 0:04:43.440 big question a lot of people are asking right now, 0:04:44.240 --> 0:04:47.520 can you lose your job for doing something political, even 0:04:47.520 --> 0:04:50.480 if you keep it totally out of the office. It 0:04:50.520 --> 0:04:54.039 depends who you work for, and it depends the nature 0:04:54.080 --> 0:04:56.279 of your job, and it depends exactly what are you 0:04:56.360 --> 0:04:59.440 doing outside of the office. In fact, you'll find the 0:04:59.520 --> 0:05:01.919 lawyers answer to almost all these questions is always it 0:05:02.000 --> 0:05:06.160 depends on so many different factors. We have to distinguish, 0:05:06.320 --> 0:05:09.680 for example, between public employees and people who work for 0:05:09.760 --> 0:05:13.880 non governmental agencies and companies. Well, maybe we should start 0:05:13.920 --> 0:05:17.960 with that distinction private and public, because with with public 0:05:17.960 --> 0:05:21.080 employees the First Amendment comes into play. That is the 0:05:21.200 --> 0:05:25.719 constitutional protection for freedom of speech. And also state constitutions 0:05:25.720 --> 0:05:29.600 have protections freedom of speech, but their protections that you, 0:05:29.720 --> 0:05:32.560 as a citizen have against the government. And if you 0:05:32.600 --> 0:05:34.839 are a public employee, of course you're also a citizen, 0:05:35.400 --> 0:05:37.680 so you still have that First Amendment right. And if 0:05:37.680 --> 0:05:41.400 the government is your employer, the government is restricted to 0:05:41.480 --> 0:05:44.960 some extent by the First Amendment. The problem is that 0:05:45.080 --> 0:05:49.320 the Supreme Court has constructed a relatively complex body of 0:05:49.440 --> 0:05:54.880 rules governing the degree to which First Amendment rights attached 0:05:54.920 --> 0:05:59.680 in any particular situation to what public employees do very 0:05:59.720 --> 0:06:03.640 comp located. It dates really in terms of modern Supreme 0:06:03.640 --> 0:06:06.719 Court law to a case called Pickering, which goes back 0:06:06.760 --> 0:06:09.920 half a century now. Pickering was a high school teacher 0:06:10.520 --> 0:06:14.040 who was very upset with the austerity budget proposed by 0:06:14.080 --> 0:06:15.919 the school board in his district and he felt they 0:06:15.960 --> 0:06:19.240 weren't adequately funding activities at the high school. And he 0:06:19.279 --> 0:06:21.279 went public with this with a letter to the editor 0:06:22.000 --> 0:06:24.560 of a local paper, and he got fired. And he said, well, 0:06:24.600 --> 0:06:27.080 I have a First Amendment right as a citizen to 0:06:27.200 --> 0:06:29.760 speak about a topic that's before the public. The public 0:06:29.800 --> 0:06:32.240 has to vote on the austerity budget. Shouldn't I be 0:06:32.320 --> 0:06:35.360 in tided to speak about that and the school She said, yeah, 0:06:35.400 --> 0:06:37.640 but you're an employee of the school district and you're 0:06:37.640 --> 0:06:40.440 being disloyal and you're criticizing the board of Education and 0:06:40.440 --> 0:06:44.240 you're poisoning your relationship with the administration. How should that 0:06:44.279 --> 0:06:47.360 be resolved? Does he have a First Amendment right to 0:06:47.480 --> 0:06:51.160 write to the newspapers? And the Supreme Court said, well, 0:06:51.160 --> 0:06:55.360 he's writing about a subject of public interest that is 0:06:55.640 --> 0:06:59.159 pending in the political process. So it's clearly it's commentary 0:06:59.320 --> 0:07:01.719 that should be at the core of the First Amendment 0:07:01.720 --> 0:07:05.840 that protects democracy right and the right of individuals to 0:07:05.880 --> 0:07:10.000 participate and articulate their views on questions of public interest. 0:07:10.240 --> 0:07:13.160 But on the other hand, the school district has a 0:07:13.280 --> 0:07:16.920 right not to employ people whose activities are disrupting the 0:07:16.960 --> 0:07:21.440 operation of the education system. If they can show that 0:07:21.600 --> 0:07:25.960 his activities disrupted the smooth operation of the school, then 0:07:26.000 --> 0:07:30.920 the First Amendment shouldn't protect him from being dismissed. But 0:07:31.160 --> 0:07:33.280 they have to prove that. The school has to prove 0:07:33.480 --> 0:07:36.600 that allowing him to continue to be a teacher at 0:07:36.600 --> 0:07:40.120 the school will disrupt the educational process. And the court 0:07:40.200 --> 0:07:43.440 wasn't convinced to that. They said, you know, the school 0:07:43.480 --> 0:07:45.520 is going to be put to a high burden to 0:07:45.600 --> 0:07:50.000 show that it's disruptive because core political speech is heavily 0:07:50.040 --> 0:07:52.600 protected by the First Amendment. So when I say it 0:07:52.640 --> 0:07:56.160 always depends, it depends on the facts of any particular case. 0:07:56.680 --> 0:07:58.920 But in the public sector of the First Amendment has 0:07:58.920 --> 0:08:02.320 heavy protection. Now, I think if a public high school 0:08:02.320 --> 0:08:04.400 teacher was out there on a picket line holding a 0:08:04.440 --> 0:08:08.080 banner with a swasticker and yelling racist and anti Semitic things, 0:08:08.600 --> 0:08:10.360 I think the school board would have a pretty good 0:08:10.360 --> 0:08:14.080 case to discharge them, even though their demonstration is in 0:08:14.160 --> 0:08:19.360 some sense core political speech, because it's probable disruptive effect 0:08:19.480 --> 0:08:22.360 is very easy to imagine because what they're doing is 0:08:22.400 --> 0:08:25.320 so incendiary that it's going to upset the people that 0:08:25.520 --> 0:08:28.480 they work with, the co workers, the students, the parents. 0:08:29.080 --> 0:08:31.480 There will be all kinds of disruption. I can imagine 0:08:31.520 --> 0:08:35.400 school board meetings with shouting parents, screaming, and fights breaking out. 0:08:35.760 --> 0:08:39.600 So in a situation like that, I think it's likely 0:08:39.720 --> 0:08:42.120 that the school board would win if that person was 0:08:42.160 --> 0:08:44.760 discharged and brought a First Amendment lawsuit. But say are 0:08:45.000 --> 0:08:50.240 COG and some bureaucratic machine working for palvinu and Services 0:08:50.360 --> 0:08:52.480 or that, I rus that they might have a harder time. 0:08:52.720 --> 0:08:55.520 They might, They might. It depends on the facts of 0:08:55.559 --> 0:08:58.400 the situation. It depends on the conduct the person engages in. 0:08:59.200 --> 0:09:04.120 If they're engaging and very incendiary conduct and their court 0:09:04.160 --> 0:09:07.280 on the media and their picture and they're bearing a 0:09:07.360 --> 0:09:11.080 torch and they're screaming epithets and things of that sort, 0:09:11.679 --> 0:09:14.600 the chances that that will be disruptive are much much 0:09:14.679 --> 0:09:17.000 higher than if, like they're writing a letter to the 0:09:17.080 --> 0:09:19.520 editor to the newspaper. It seems like it might be 0:09:19.679 --> 0:09:24.240 harder to do something completely in your private life nowadays 0:09:24.559 --> 0:09:26.520 if your name is attached to something, even if you 0:09:26.559 --> 0:09:28.880 don't say I'm an employee of such and such an organization. 0:09:28.880 --> 0:09:30.920 It's pretty easy for people to find that out through 0:09:30.920 --> 0:09:35.040 social media or other ways. So does that factor in 0:09:35.080 --> 0:09:37.640 when people are making these decisions like should people be 0:09:37.679 --> 0:09:41.200 worried about that about staying private if they're doing political 0:09:41.200 --> 0:09:43.760 activities outside of work. I think they may have to. 0:09:43.960 --> 0:09:46.440 Part of the problem is that this body of law, 0:09:46.960 --> 0:09:49.960 as I mentioned the Pickering cases from the nineteen sixties. Uh, 0:09:50.080 --> 0:09:52.560 this body of law has developed over time, and some 0:09:52.640 --> 0:09:54.920 of the principles would develop before we had the Internet, 0:09:55.200 --> 0:09:58.040 before we had social media, before it was so easy 0:09:58.080 --> 0:10:00.160 to figure out who people were and who they work for. 0:10:00.640 --> 0:10:03.160 So it may be that the Supreme Court, when confronted 0:10:03.200 --> 0:10:06.120 with cases like this in the future, will adjust some 0:10:06.280 --> 0:10:09.720 of its holdings to reflect the new reality. People have 0:10:09.800 --> 0:10:12.040 to be concerned about what they do outside the workplace 0:10:12.120 --> 0:10:14.760 if they work in a job for the government where 0:10:14.800 --> 0:10:18.160 they can be perceived as somehow representing the government's views. 0:10:18.960 --> 0:10:22.640 And you're saying that public employees are more protected, Well, 0:10:22.679 --> 0:10:25.760 they have the First Amendment, which in some cases will 0:10:25.800 --> 0:10:28.000 protect them. Although the Supreme Court decisions of a time 0:10:28.040 --> 0:10:30.880 have been narrowing and narrowing and narrowing that. But when 0:10:30.880 --> 0:10:33.800 you go outside the government sphere into the private sector, 0:10:34.360 --> 0:10:37.920 it depends on totally different factors because the First Amendment 0:10:37.960 --> 0:10:41.559 is only restriction on government, not a restriction on private employers. 0:10:42.320 --> 0:10:45.080 But there are many circumstances where there are restrictions on 0:10:45.160 --> 0:10:50.000 private employers. For example, there are quite a few states 0:10:50.040 --> 0:10:53.640 that have statutes that say that you can't discriminate against 0:10:53.800 --> 0:10:59.320 or discharge an employee for engaging in lawful off duty conduct. Now, 0:10:59.360 --> 0:11:03.840 a lot of the statutes were passed with heavy lobbying 0:11:03.880 --> 0:11:07.520 from the tobacco industry, which was concerned at a time 0:11:07.520 --> 0:11:11.280 where there was talk about employers firing smokers because they 0:11:11.280 --> 0:11:14.560 would present higher health care courts, and the industry wanted 0:11:14.559 --> 0:11:17.200 to protect smokers from being discharged from being smokers as 0:11:17.280 --> 0:11:19.920 long as they're not smoking at work if the workplace 0:11:19.920 --> 0:11:23.920 has no smoking rule. So uh, these statutes were passed, 0:11:23.960 --> 0:11:26.720 and in some jurisdictions they were very narrowly written to 0:11:26.720 --> 0:11:34.199 protect people who were consuming lawful things like alcohol or tobacco. 0:11:34.880 --> 0:11:37.520 It didn't protect people who were smoking marijuana, although these 0:11:37.600 --> 0:11:41.120 days it might. I guess the question is, then, would 0:11:41.480 --> 0:11:44.559 participating in a on the extreme and a white supremacy 0:11:44.640 --> 0:11:49.600 rally be considered lawful off duty conduct if the person 0:11:49.679 --> 0:11:54.480 doesn't engage an unlawful conduct. Demonstrating for an unpopular cause 0:11:55.000 --> 0:11:57.720 in the United States is not per se illegal. Of course, 0:11:57.760 --> 0:12:01.720 if you engage in violent activity and assaults, if you're 0:12:01.880 --> 0:12:04.520 carrying a weapon openly in a state that doesn't have 0:12:04.559 --> 0:12:09.320 open carry, then you're arguably engaged in illegal conduct. So 0:12:09.360 --> 0:12:11.760 a law of this type wouldn't protect you. But about 0:12:11.960 --> 0:12:17.360 hate speech, hate speech depends again on whether their statutes involved, 0:12:17.400 --> 0:12:19.599 and it also depends on the status of the employee 0:12:19.600 --> 0:12:24.040 and the nature of the workplace. UH. For example, most 0:12:24.400 --> 0:12:30.000 employees are at will employees. That means their status, that 0:12:30.160 --> 0:12:33.520 contractual status with respect of their employer means they can 0:12:33.600 --> 0:12:35.600 quit any time they want for any reason they want, 0:12:35.720 --> 0:12:38.680 and the employer can fire them for any reason it wants, 0:12:38.880 --> 0:12:41.439 as long as it's not an illegal reason. So we 0:12:41.480 --> 0:12:44.199 would have to find a statute that prohibits firing someone 0:12:44.240 --> 0:12:48.840 for a particular purpose, like an antidiscrimination statute which says 0:12:48.880 --> 0:12:52.120 you can't fire someone because of their religion or their 0:12:52.200 --> 0:12:55.000 national origin, of their race or sex, or something like that. 0:12:55.679 --> 0:12:58.880 So if you have a particular statutory limitation. Then the 0:12:58.920 --> 0:13:01.079 mere fact that the employe is an at will employee 0:13:01.120 --> 0:13:03.120 doesn't mean that you can discharge them in violation of 0:13:03.200 --> 0:13:07.480 the statute. But we also have in many states what 0:13:07.640 --> 0:13:09.959 is called the common law rule, a rule not based 0:13:10.000 --> 0:13:13.040 on a statute but just judge made law that says 0:13:13.120 --> 0:13:17.040 you can't discharge somebody for a reason that would undermine 0:13:17.080 --> 0:13:19.800 the public policy of the state. And so we have 0:13:19.920 --> 0:13:22.439 to figure out what is the public policy of the state, 0:13:22.600 --> 0:13:26.079 what is its source, and is it just statutes or 0:13:26.280 --> 0:13:31.400 might it also be constitutional state constitutional protections. California, for example, 0:13:31.440 --> 0:13:34.560 there was a body of case law developed saying that 0:13:34.600 --> 0:13:40.000 the California Constitutions Protection for Privacy protected employees from being 0:13:40.000 --> 0:13:43.280 discharged for various kinds of off duty conduct because they 0:13:43.320 --> 0:13:46.160 had a right to privacy that the employer couldn't intrude upon. 0:13:47.080 --> 0:13:50.200 And uh some states, like Massachusetts, for example, has a 0:13:50.240 --> 0:13:57.040 statute that protects employees from discrimination for their political activities 0:13:57.280 --> 0:14:00.959 as long as they're legal. But some states say an 0:14:00.960 --> 0:14:03.840 employer who doesn't like Republicans can fire someone who they 0:14:03.840 --> 0:14:06.440 discover as a Republican. Depends what state you're ine, and 0:14:06.480 --> 0:14:09.079 it depends on their status. Now they're not in that 0:14:09.200 --> 0:14:12.920 will employee. That's a totally different story. Employees who are 0:14:12.960 --> 0:14:16.839 represented by labor unions are usually not at will employees 0:14:17.240 --> 0:14:20.280 because the union negotiates a collective bargaining agreement with the 0:14:20.320 --> 0:14:23.280 employer that limits the terms on which employees can be 0:14:23.320 --> 0:14:27.720 disciplined or discharge and subjects those decisions to a grievance 0:14:27.760 --> 0:14:32.280 procedure that ends up usually with neutral arbitration to decide 0:14:32.280 --> 0:14:36.000 whether the employer's activity was proper under the contract. Employment 0:14:36.040 --> 0:14:39.840 law is actually a rather complicated subject. Sounds like it, um. 0:14:39.920 --> 0:14:42.360 So there's a recent case that got a lot of attention, 0:14:42.400 --> 0:14:46.280 which is the Google engineer who wrote this long screed 0:14:46.560 --> 0:14:52.400 basically criticizing Google's policy, Google's diversity initiatives. That was discharged 0:14:52.480 --> 0:14:54.600 right and he was discharged, and a lot of people 0:14:55.440 --> 0:14:57.720 weighed in on both sides of that argument. So I'm 0:14:57.720 --> 0:15:00.560 saying that he should have had a right to free 0:15:00.600 --> 0:15:03.400 speech or First Amendment protections, which we're learning now he 0:15:03.480 --> 0:15:05.600 probably didn't have a right to Google as a private 0:15:05.640 --> 0:15:08.880 sector company. And if he was an apt will employee, 0:15:10.280 --> 0:15:14.120 if he had a contract for a specified duration and 0:15:14.160 --> 0:15:17.160 they fired him before the terminal date of his contract, 0:15:17.640 --> 0:15:20.800 then they would have to have just cause. They would 0:15:20.800 --> 0:15:23.080 have to satisfy a court that they had a good 0:15:23.120 --> 0:15:26.920 reason for terminating the contract, that somehow his conduct had 0:15:26.960 --> 0:15:31.160 been inappropriate for somebody in that position. Now, Google is 0:15:31.320 --> 0:15:35.000 a very visible company, and it's a company that is 0:15:35.040 --> 0:15:39.240 perhaps vulnerable to consumer boycotts, and they might argue that 0:15:39.280 --> 0:15:44.120 an employee who very publicly articulates a particular controversial position 0:15:44.600 --> 0:15:47.560 could damage the reputation of the company, and that might 0:15:47.640 --> 0:15:51.560 be considered a just cause for terminating a contract of 0:15:51.600 --> 0:15:54.400 specific duration. But it is an at will employe. It 0:15:54.400 --> 0:15:56.880 would depend what state he's in and whether the state 0:15:56.920 --> 0:16:00.000 has a law that forbids discriminating against someone because they 0:16:00.000 --> 0:16:04.200 express a particular political position. It's also interesting because what 0:16:04.240 --> 0:16:07.160 he was doing was directly criticizing the company's policy. So 0:16:07.200 --> 0:16:09.200 even though there was a political element to it because 0:16:09.200 --> 0:16:12.000 he was talking about diversity initiatives, he was also kind 0:16:12.000 --> 0:16:15.240 of taking a stand against his own company. And I 0:16:15.280 --> 0:16:17.800 wonder if that could potentially factor, And if you needed 0:16:17.840 --> 0:16:20.120 to find cause for a firing, I think it probably 0:16:20.120 --> 0:16:23.280 would in in someone who had some kind of contractual 0:16:23.400 --> 0:16:26.160 claim based Let's say he has a five year contract 0:16:26.240 --> 0:16:28.120 or something like that and it's his third year and 0:16:28.160 --> 0:16:31.560 they want to fire him. I think they could probably 0:16:31.560 --> 0:16:34.440 persuade a court that they had a decent justification for 0:16:34.520 --> 0:16:38.600 firing someone who would publicly criticize the company's policy because 0:16:38.640 --> 0:16:41.200 there's no First Amendment protection. There's no freedom of speech 0:16:41.200 --> 0:16:45.480 in the private sector unless the employer wants to grant. Also, 0:16:45.520 --> 0:16:49.640 I believe you mentioned off duty conduct. I believe this 0:16:49.880 --> 0:16:52.920 was happening at Google. Is that different where he was 0:16:52.960 --> 0:16:56.520 circulating this within the company, so it's not off duty conduct? 0:16:56.840 --> 0:17:00.800 And certainly, uh, this is this is one issue that 0:17:01.440 --> 0:17:04.280 has come up, for example, in the context of social media, 0:17:04.960 --> 0:17:07.600 that people will post stuff critical of their company on 0:17:07.640 --> 0:17:12.160 their Facebook page. Can the company fire them for that 0:17:13.080 --> 0:17:17.080 if they're not using a company computer and only their 0:17:17.119 --> 0:17:20.280 Facebook friends can see it. Although we know that Facebook 0:17:20.280 --> 0:17:23.200 posts are leaky and friends forward things and all of 0:17:23.280 --> 0:17:27.280 a sudden things get out. Uh. And I would say 0:17:27.320 --> 0:17:30.000 that a company that wants to fire someone for posting 0:17:30.040 --> 0:17:32.600 something critical on a Facebook page probably can do it. 0:17:34.000 --> 0:17:36.080 Although there is an argument to be made in the 0:17:36.080 --> 0:17:38.400 Supreme Court is actually going to be hearing about this 0:17:39.200 --> 0:17:43.119 whether it violates their rights under the National Labor Relations Act. 0:17:43.200 --> 0:17:47.760 If they're posting something with the intent and hoping to 0:17:47.880 --> 0:17:51.920 encourage fellow workers to combine to protest a particular workplace 0:17:51.960 --> 0:17:56.040 policy or something like that. Is that concerted activity? Because 0:17:56.119 --> 0:17:58.840 under the National Labor Relations Act, employees have a right 0:17:58.880 --> 0:18:02.760 to engage in concerted activity with respect to their working conditions. 0:18:02.800 --> 0:18:06.320 So someone is trying to initiate concerted activity through a 0:18:06.359 --> 0:18:11.320 Facebook posting, and many of her Facebook friends are actually coworkers, 0:18:12.320 --> 0:18:15.320 there's a plausible argument, although the Supreme Court might decide 0:18:15.359 --> 0:18:18.639 it's not so plausible that that is covered by Section 0:18:18.680 --> 0:18:22.600 seven of the National Labor Relations Act, which protects concerted activity. 0:18:22.800 --> 0:18:27.159 Have the courts ever weighed in on what actually constitutes 0:18:27.200 --> 0:18:29.960 political speech, because it seems like there are some cases 0:18:29.960 --> 0:18:33.240 that would be obvious, right if you're if you're canvassing 0:18:33.280 --> 0:18:36.400 for a political candidate in your local district, that's that's political. 0:18:36.440 --> 0:18:40.480 But there are other things that have become so mainstream, 0:18:40.600 --> 0:18:46.359 like to say, support advocacy for LGBT rights or something 0:18:46.440 --> 0:18:49.760 that that may not necessarily be considered political because it's 0:18:49.800 --> 0:18:52.320 it's just more of a broad sort of humanity issue. 0:18:52.440 --> 0:18:57.360 But that generally is considered by politically is broadly interpreted 0:18:57.720 --> 0:19:01.520 as matters of public concern, matter on which members of 0:19:01.520 --> 0:19:03.719 the public may hold different points of view, and matters 0:19:03.720 --> 0:19:07.360 of debate, the kinds of stuff that newspapers and magazines 0:19:07.440 --> 0:19:10.960 and media will report about. That's matters of public concern. 0:19:11.160 --> 0:19:15.879 Purely private interests and disputes are distinguished from that. And 0:19:15.920 --> 0:19:20.199 there was a case involving an assistant district attorney in 0:19:20.280 --> 0:19:24.040 New Orleans who had some gripes about office policy, and 0:19:24.080 --> 0:19:29.560 she circulated an internal memorandum seeking signatures on a petition 0:19:29.600 --> 0:19:32.720 to get the district attorney to change certain office policies, 0:19:32.720 --> 0:19:36.200 and she was fired. Was she protected under the first 0:19:36.240 --> 0:19:39.760 Amendment and district attorney's a public official? First Amendment should apply? 0:19:40.560 --> 0:19:43.120 But the Supreme Court said that the employer could fire 0:19:43.160 --> 0:19:48.040 her because she was disrupting the office and there was 0:19:48.080 --> 0:19:50.320 no public interest in it, and there was no interests. 0:19:50.400 --> 0:19:52.520 There was no public interest at all. They said it 0:19:52.600 --> 0:19:56.240 was internal office policies and gripes and things of that sort, 0:19:56.240 --> 0:19:59.720 about promotion policies and assignments and things of that. So 0:19:59.720 --> 0:20:01.960 so they do a line they said, that's not really 0:20:02.000 --> 0:20:05.120 a matter of public concern. I might differ on that 0:20:05.920 --> 0:20:07.720 on the theory that it should be a matter of 0:20:07.760 --> 0:20:11.480 interest to any citizen of the city if there say, 0:20:11.680 --> 0:20:15.639 is discrimination in terms of assigning assistant district attorneys to 0:20:15.720 --> 0:20:19.680 particular kinds of cases and stuff, and that's law enforcement, 0:20:19.680 --> 0:20:23.080 that's public policy. But the Supreme Court drew aligned. They 0:20:23.119 --> 0:20:26.760 said that was an internal grievance. I think many of us, 0:20:27.359 --> 0:20:29.919 you know, a lot of people can get behind not 0:20:30.040 --> 0:20:35.000 wanting to work along white supremacists or people who are violent. Um. 0:20:35.040 --> 0:20:38.560 But I think there's also a concern of chilling people's 0:20:39.160 --> 0:20:41.440 speech on the office. Are things that they do outside 0:20:41.440 --> 0:20:44.600 of the office. Um. I'm trying to think how to 0:20:45.880 --> 0:20:49.639 should should we worry about chilling anti Semitic and racist speech. 0:20:50.160 --> 0:20:53.639 That's I don't want to ask that question. But it's like, um. 0:20:53.680 --> 0:20:55.200 But on the other hand, in the country with the 0:20:55.240 --> 0:20:58.080 first Amendments, when you're not talking about inside the workplace, 0:20:58.760 --> 0:21:02.400 people we generally feel should be free to express themselves, 0:21:03.200 --> 0:21:08.440 and that airing obnoxious ideas in the marketplace of ideas 0:21:09.080 --> 0:21:11.719 gets other people to contradict them and to have an 0:21:11.800 --> 0:21:14.320 argument to try to persuade people of what the correct 0:21:14.400 --> 0:21:16.280 point of view should be or the preferable point of 0:21:16.320 --> 0:21:20.760 view should be. So we generally don't like to see censorship. 0:21:20.880 --> 0:21:23.480 That's the whole idea of the First Amendment and political 0:21:23.480 --> 0:21:26.320 speech being protected, that we allow people to argue out 0:21:26.359 --> 0:21:29.000 their points of view and public but certain kinds of 0:21:29.000 --> 0:21:32.000 speech are considered harmful. That's why we have hate speech laws, 0:21:32.040 --> 0:21:35.000 hate crime laws, and things of that sort, and why 0:21:35.080 --> 0:21:38.760 they are controversial. And the Supreme Court has sometimes in 0:21:38.840 --> 0:21:42.399 one particular case, they struck down hate speech law, and 0:21:42.440 --> 0:21:45.280 some of the lower courts have stricken laws that focused 0:21:45.280 --> 0:21:48.640 almost entirely on speech and said, you've got to show 0:21:48.680 --> 0:21:51.000 that there's more than speech involved, that there's perhaps some 0:21:51.119 --> 0:21:54.960 incitement to illegal activity or something like that. Before we 0:21:55.000 --> 0:21:57.440 finish up, I just wanted to ask you. You've been 0:21:57.480 --> 0:22:00.119 in this field for for decades. Are there things in 0:22:00.200 --> 0:22:04.159 your experience that used to be okay for companies to 0:22:04.160 --> 0:22:06.680 do that are just widely considered not okay or vice 0:22:06.760 --> 0:22:09.920 versa that um companies are doing more and more that 0:22:10.000 --> 0:22:14.240 they never would have considered before. Well, companies are being 0:22:14.800 --> 0:22:18.480 much stricter than they used to be on off duty 0:22:18.520 --> 0:22:23.080 conduct that might affect worker performance in the workplace. And 0:22:23.119 --> 0:22:25.879 when I first got involved in teaching employment law and 0:22:25.920 --> 0:22:28.520 actually practicing before I started teaching back in the nineteen 0:22:28.600 --> 0:22:33.199 seventies and eighties, employers weren't drug testing employees. That's a 0:22:33.359 --> 0:22:35.680 that's a more recent development. Now we have these zero 0:22:35.760 --> 0:22:39.840 tolerance policies, and even if someone's off due to use 0:22:39.880 --> 0:22:43.160 of marijuana or something like that purely recreational and they're 0:22:43.200 --> 0:22:46.880 in a state where it's not illegal, but an employer says, well, 0:22:47.000 --> 0:22:49.840 marijuana can have a continuing effect and it can affect 0:22:49.880 --> 0:22:53.800 people's ability to perform their job, and so we're gonna 0:22:53.840 --> 0:22:57.639 have a zero tolerance policy, and even if it's off duty, 0:22:57.760 --> 0:23:00.480 we're gonna just say if you test, policities of your out. 0:23:01.280 --> 0:23:05.840 That's relatively new, certainly compared to when I first started out. 0:23:06.359 --> 0:23:12.240 Employers are also having much more access to information about 0:23:12.240 --> 0:23:16.200 employees because of social media, And before there was Facebook, 0:23:16.200 --> 0:23:19.040 you couldn't use Facebook to look up job applicants and 0:23:19.080 --> 0:23:21.480 see if they were on Facebook and if they were 0:23:21.520 --> 0:23:25.080