HR vs. the 1st Amendment: Can Workers Be Fired for Political Tweets?

HR vs. the 1st Amendment: Can Workers Be Fired for Political Tweets?
  • A Florida professor was fired after using Twitter to proclaim that recent hurricane destruction was “instant karma” for Texans who voted Republican …
  • A Pennsylvania company fired its HR director because she tweeted that “an informal survey of our employees shows that 100%” support President Trump …
  • And, in the highest profile example, a Virginia woman who flashed a “one-finger salute” at Trump’s motorcade was fired last month for posting the viral photo of the incident.

With politics becoming a toxic topic around the watercooler, more people have been driven underground – or, more accurately, into cyberspace – to spout their political beliefs. But this has triggered an important question for HR: When does an employee’s Twitter rant cross the line between a private catharsis and a public act that hurts the company’s reputation – and justifies a termination?

This isn’t just a Twitter or online issue. This year has seen an increase in cases involving employees disciplined for controversial political actions, such as people fired for marching in the controversial “Unite the Right” rally in Charlottesville.

Political Speech: What Does Federal Law Say? The First Amendment guarantees that the government will not abridge political speech. Private employers, of course, are not the government, so the First Amendment generally doesn’t constrain companies from putting limits on employees’ speech.

However, employees can sometimes make a case that punishing their political speech is actually an excuse for some kind of illegal discrimination, such as race, age or gender bias. For example, if a black employee is disciplined for skipping work to attend a “Black Lives Matter” rally, could he argue the real reason was his race?

What About State and Local Law? Various state statutes go beyond federal law to protect employees from being fired for participating in political forums and protests. Some states bar employers from firing people based on political party membership.

Many other states also have “lifestyle discrimination” laws that prohibit employers from disciplining workers for their off-duty legal behavior. Some states even make it a crime for employers to fire employees for purely political reasons.

Generally, an employer can be justified in firing an employee if that employee’s actions harm the business in some way – even online. But what does your social media policy say? What about state law? And what other hidden details could trigger liability?

Before disciplining or firing any employee based on political speech (either online or in-person) it’s best to educate yourself on this topic and get solid advice from an expert employment-law attorney – two things that you can find at the 2018 Labor and Employment Law Advanced Practices (LEAP) Symposium.

Plus, you’ll have a fabulous time with the attorneys and your peers at the legendary Caesar’s Palace. See you in Las Vegas!

Sincerely,

Joseph L. Beachboard, Esq.
Moderator, LEAP 2018