By Lawrence P. Schaefer |
Can an employer fire an employee for out-of-the-workplace activities, behavior or political beliefs? As we become more and more polarized as a society, and the blue/red political divide begins to infect the workplace, where does the line get drawn between your private life and your work life? I’m speaking on this topic on WCCO News tonight, August 16, 2017, at 10:00 pm, in a questions and answer segment with reporter Heather Brown. This blog previews this segment.
The short answer is that employees working in the private sector often can be terminated if their employer is upset about non-workplace behavior, beliefs, or political activity. That’s because there is no First Amendment right of free speech applicable to private employers, as this protection is against the government suppressing free speech.
Discrimination and your Political Affiliation
Furthermore, discrimination laws don’t recognize political affiliation or political beliefs as a recognized protected category, so an employer is generally free to allow this affiliation or beliefs to influence hiring and firing decisions. Therefore, in the absence of some other statutory or common law basis to state a legal claim, an employer’s “at-will” discretion would allow adverse employment decisions based on an employee’s political affiliation.
The Minnesota Human Rights Act and the Minneapolis Civil Rights Ordinance do, however, include “creed” among the listed protected categories, but this has never been extended to encompass political beliefs. Reported decisions from other jurisdictions suggests that “creed” would likely be interpreted to be limited to religious beliefs, and therefore would not include, for instance, veganism, which was rejected as an expression of “creed” by a Tennessee Court.
Employees’ Right to Privacy
There may be, however, circumstances where an employee’s right to privacy is violated by an employer investigating their out-of-the office activities, and terminating them based on what is discovered. This would especially be true if an employee keeps this information very private, and the employer discovers this information from non-publicly available records. Employees, however, who engage in public protests in connection with political beliefs likely waive this right to privacy. Employers who learn of this belief through public acts of protest are not violating any right to privacy in taking adverse employment actions based on these public acts.
It is important to recognize, in debating this issue, that while many of us may be supportive of an employer firing an employee upon discovering out-of-the office Neo-Nazi or white supremacy public activities, we’d feel very different if these same activities were in support of the “black lives matter” movement, or a form of environmental advocacy. Legally, however, this distinction would not likely matter. It’s not the “legitimacy” of the political idea being expressed that matters. Regardless of the merits of your political expression, if your employer doesn’t like it, you could be legally fired.
