Can You Be Terminated By Your Employer For Voicing Your Opinion About The Conflict In Gaza On Social Media?
In most states in the United States, employer-employee relationships are presumed to be “at-will” absent unlawful firing based on certain protected characteristics including race, color, religion, sex, national origin, age, and disability. However, there is no federal statute explicitly regulating political discrimination in the workplace. Notably, the First Amendment’s freedom of speech clause only extends to protecting employees of the government or those employed by public employers. (Even this freedom of speech provision has certain limitations in scope as not all speech a public employee makes is protected).
The common law public policy exception is one of three major exceptions to at-will employment. The public policy exception, which forty-two of the fifty states, plus Washington, D.C., embrace, provides private employees with a cause of action for wrongful discharge when the termination violates some established notion of public policy1 . According to a Utah Court, to succeed on a public policy wrongful discharge claim, an employee must prove that (1) their employment was terminated, (2) “a clear and substantial public policy existed,” (3) the employee’s conduct “implicated that clear and substantial public policy,” and (4) “the termination and conduct in furtherance of the public policy are causally connected.”2 Courts have interpreted the meaning of what constitutes a clear and substantial public policy within the public policy exception differently.
Generally, Courts have held that the public policy exception is triggered- thus creating a potential wrongful discharge claim- when for example union activity is infringed upon or if an employee complains about unsafe work conditions. Currently, there is no public policy exception recognized in most courts that would protect an employee’s right to voice their political opinion about war. Courts acknowledge that private employers retain the discretion to hire or fire employees based on whether they share the same values or mission as the company3 . However, courts may draw distinctions for conduct that occurs at work versus outside of work during an employee’s own time.
Limiting the application of the public policy exception to “off-duty” political activity would serve as an appropriate check to ensure the at-will employment model is not completely eroded, since an employee’s political activity that occurs outside of work may be less likely to impact the daily business operations of the company4 . In Novosel v. Nationwide Insurance,5 the United States Court of Appeals for the Third Circuit held that a private employer may be held liable under Pennsylvania law for terminating an employee who refused to participate in the employer’s lobbying effort and privately voiced his opposition to the employer’s political stance. In Novosel, the Third Circuit addressed this consideration when it proposed a useful four-part inquiry that could be adopted when determining the novelty of a wrongful discharge action. The Court suggested consideration of the following:
1. Whether, because of the speech, the employer is prevented from efficiently carrying out its responsibilities;
2. Whether the speech impairs the employee’s ability to carry out his own responsibilities;
3. Whether the speech interferes with essential and close working relationships;
4. Whether the manner, time and place in which the speech occurs interferes with business operations.
The Novosel decision protected an individual’s First Amendment right to voice his/her political opinion by enforcing the four-part test referenced above to distinguish activity that did not interfere with an employee carrying out their job functions or responsibilities. The fundamental nature of the right to engage in political activity or expression should prompt courts to consider the four-part test employed in Novosel to adjudicate matters involving termination due to employees voicing their political opinions. Courts around the country should also consider political activity or expression as part of the public policy exception to at-will-employment. Over the last few years, the rise of social media and easy access to information has resulted in a call for society, particularly younger individuals, to educate themselves and get involved in political matters that resonate with them6 . This political activity must be encouraged.
A democratic society must have well-informed and educated individuals who can express their views without fear of retribution or retaliation. I call for all employers and individuals to accept and embrace the freedoms that are the bedrock of our society.
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1 Christopher L. Pennington, Comment, The Public Policy Exception to the Employment-at-Will Doctrine: Its Inconsistencies in Application, 86 TUL. L. REV. 1583, 1593 (1994).
2 Rackley v. Fairview Care Ctrs., 23 P.3d 1022, 1026 (Utah 2001).
3 Nicole B. Porter, The Perfect Compromise: Bridging the Gap Between At-Will Employment and Just Cause, 87 NEB. L. REV. 62, 63 (2008).
4 Shannon Murphy, “You’re Fired!”: Recognizing A Public Policy Claim for Private Employees Subjected to Political Discrimination in the Workplace, 75 Fla. L. Rev. 773 (2023)
5 721 F.2d 894 (3d Cir. 1983).
6 See generally Stacey B. Steinberg, #Advocacy: Social Media Activism’s Power to Transform Law, 105 KY. L.J. 413 (2017) (discussing the ease in which social media allows individuals to engage in activism and further social movements such as the Black Lives Matter movement).