Yesterday, a LinkedIn user who read Monday’s post, “How would you respond if your employee marched in Charlottesville?” asked his own question, Eric, could you explain more in depth – employment at will vs. Off the job free speech?
I got this.
At-will employment means that the employee or the employer can end the employment relationship at practically any time for any reason. There are limited exceptions. For example, an employer can’t fire an employee for complaining about sexual harassment or base an employment decision on some other protected-class characteristic (e.g., race, religion, age, etc.). And, most states have public policy exceptions that preclude firing an employee who takes time off for jury duty or who refuses a polygraph test.
But, generally speaking, at-will employment offers no real job security and no reciprocal obligation on the employee to stick around for any length of time.
In the private sector, off-the-job free speech is basically a myth. Generally, an employee has no First Amendment rights — on or off the clock. (If you work for the government, you have any some free-speech rights. But, even those have limits).
Now, some states may have off-duty conduct laws that protect an employee from termination based on legal activities in which they engage on their own time. Other states, like California, handcuff employers from making employment decisions based on an employee’s political activities. But, those are rules are few and far between. Although, it’s worth mentioning that the National Labor Relations Act, which is not limited to unionized workplaces, ensures that employees can get together and talk smack about their employers (on or off the clock) without fear of reprisal.
But, the exceptions hardly swallow the free-speech rule, err, that employees don’t really have free-speech rights.
So, that’s why, if I’m advising an employer how to dealing with an employee whom it knows to have participated in the Nazi marches in Charlottesville, I’m all like this…