Employers hold the hammer when it comes to office politics

October 31, 2012

As an extremely close election race heads into its final days, offices across the country will become political hotbeds. But employees should remember that the freedom to express your political beliefs is mostly a one-way street that favors the employer.

In nearly every state in the nation bosses have the right to fire their employees if they don’t approve of their politics. On the other hand, workers have little recourse when their employer tries to intimidate them to vote a certain way.

Earlier this month, Westgate Resorts owner David Siegel caused a stir when he sent a company-wide email to his 7,000 employees that suggested they could lose their jobs if Barack Obama is re-elected.

In the email, the Florida-based businessman wrote: “If any new taxes are levied on me, or my company, as our current president plans, I will have no choice but to reduce the size of this company.”

Siegel, who is no stranger to politics and famously claimed he helped get George W. Bush elected in 2000, added that should Obama win his employees will find him: “in the Caribbean sitting on the beach, under a palm tree, retired, and with no employees to worry about.”

Siegel defended the email and claimed he never meant to “intimidate anybody,” but apart from outrage, legal experts say Siegel’s employees don’t have much recourse should they end up on the street.

In Florida, as in most states, private-sector employees can be fired for anything from their political beliefs to the kind of clothing they wear. Most private companies are protected by a statute called “employment at will,” said Joseph Little, professor of law emeritus at the University of Florida.

While the First Amendment protects a public-sector employee’s freedom of speech, private-sector workers are “at the whim of the employer,” insisted Little.

“The employer, in the absence of a contract of any kind, is able to say I want only republicans in my employment and if you’re not a republican you’re finished.”

Just five states – California, New York, Connecticut, Colorado and Mississippi – have laws that protect workers from being fired for their political ideologies. In those states, if there is no written contract between a private-sector employer and an employee then the employee is covered under the “common law” of the state, said Bill Gould, professor of law emeritus at Stanford.

This does not mean an employee can’t be fired for expressing his or her political views, Gould cautioned, but does mean they would likely have more success with a wrongful dismissal claim. In these states “the right to political expression has been deemed to be protected as a matter of public policy,” said Gould.

The more progressive stance stems from a case in Philadelphia in 1983 when John Novosel, an employee for Nationwide Insurance Company, refused to participate in his company’s lobbying campaign to pass a no-fault insurance measure.

Novosel was fired, but Pennsylvania’s 3rd U.S. Circuit Court of Appeals ruled his termination was unfair on the grounds it violated Novosel’s constitutional right to remain silent.

The victory, however, did not help fellow Pennsylvania worker Megan Geller, who lost her job last year as a waitress at a steakhouse restaurant chain after she wore a bracelet supporting the Tea Party that offended some customers. Although the company claimed Geller was let go because of poor performance.

In another incident back in 2002, Miami worker Michael Italie was terminated by non-profit organization Goodwill for being a communist and had aired his views publicly as a mayoral candidate.

Gould described the employment-at-will statute as an outdated “19th-century concept,” noting that in “every other industrialized country of the world you have some limitation on the employer’s right to dismiss.”

In the post-Internet era where people use social media applications such as Facebook and Twitter to express their every thought, it seems archaic to fire a competent employee for how they vote.

“It’s a major deficiency in the American system,” insisted Gould, also a past chairman of the National Labor Relations Board (NLRB). “We need national legislation, which would explicitly prohibit political discrimination.”

Gould said the best labor laws strike “a balance between rights and the employer’s ability to do business.”

Bill Skuby, the 66-year-old owner of a small high-end men’s clothing shop in Spring Lake, New Jersey, drew national media attention after mocking President Obama in a Halloween window display. Skuby, a Mitt Romney supporter, admitted he likely “crossed the line” when he depicted Obama as a witch doctor and included a tombstone with “RIP Obamacare” and a zombie with baseball cap with the pejorative acronym “F.Y.B.O.”

In the past Skuby has used similar displays to skewer Republican politicians and said if Romney doesn’t meet his expectations: “next year it will be his picture on that gravestone.”

“That’s the beauty of being a small store and being independent – you can do that,” confessed Skuby, who said he received more than 2,000 emails and numerous media inquiries.

“I don’t have to worry about the political correctness of every person walking in here.”

 

Image: An audience member with a campaign button in her hair waits for Republican presidential nominee Mitt Romney at a campaign rally in Tampa, Florida October 31, 2012. REUTERS/Brian Snyder

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