Did you hear the one about the 14
employees who were fired for wearing orange shirts? If you didn't, you
don't live in the UK or Ghana or anywhere in the U.S., because the story made
the international news. I think the story hit a chord with people everywhere
because it was just so outrageous. You come into work one day, the boss is in a
bad mood and fires you because she didn't like your shirt that day.
Management said they believed the shirts were a protest over working
conditions, so they fired the employees involved. Some of the employees were
quoted saying they didn't intend to protest.
What I thought was really interesting were the lawyers quoted who said, because
Florida is an at-will state, the employees could be fired for any reason.
That's true some of the time. As I say in my upcoming book, employers can fire
you because they didn't like your shoes that day. However I don't agree with
the assessment that these employees have no legal protection. Employees do have
rights, even when they wear orange.
I should confess at this point that I represent a group of the Orange-American
employees who were fired. I won't go into all the underlying facts at this
point. Let's just say there's more to the story.
What I will do is discuss generally some circumstances where even Florida
employees can't be fired because their boss didn't like their shirts:
Religion: If the clothing has religious significance, the employer can't
fire employees for wearing it unless it can show serious concerns such as
safety or security. Orange is a key color for the Protestant religion, so if
the color was worn for religious reasons, firing because of wearing the shirts
would be religious discrimination.
Disability: If the clothing or color was worn due to a disability, such
as a spine-adjusting device, then the employer would have to accommodate the
disability unless it could show an undue hardship.
Discrimination: If not all employees were fired for wearing orange, and
the employees not fired were of a different race, age, sex, religion, national
origin, etc. than the people fired, it could be discrimination.
Concerted activity: The National Labor Relations Act (NLRA), which
applies to most workplaces, not just unionized ones, says in Section 7:
"Employees shall have the right to self-organization, . . . to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection . . . ." NLRA also makes it unlawful for an employer "to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7." Even if an employee didn't engage in concerted
activity, they are protected under the NLRA. An employer who fires them for
suspicion of engaging in concerted activity is in violation of the law. The
NLRB said in one case: "The discharge of 4 employees . . .because of [the
employer's] belief, albeit mistaken, that the[y] had engaged in protected
concerted activities is an unfair labor practice which goes to the very heart
of the Act"
There have been lots of cases where firing employees because management didn't
like their shirt were found to be unlawful: where AT&T workers wore shirts
that said "Inmate #" on the front and on the back said "Prisoner of AT$T";
where employees wore shirts protesting the use of retirees to bust unions and
some employees wore shirts saying, "Union 'til I retire, then scab in!" and
"When I retire I will not scab. I will go fishing"; where employees wore shirts
with the employer's logo, cracked, saying, "I survived the Midstate Strike of
1971-1975-1979"; and many more. In each case, the employees' shirts were
concerted activity protected under the NLRA.
I won't comment on which of these circumstances apply to my Orange-American
clients' cases - at least, not yet. But I will say this: it could happen to
you. We're all Orange-Americans. Every American who works for a living and can
be fired, from the janitor to the CEO. Every American who thinks our jobs
shouldn't be yanked away without good reason. Every American who wants to
complain about working conditions but is afraid. Every American who can lose
not only their jobs, but their health insurance, for any reason or no reason at
all. Every American who can be fired for wearing a color their boss doesn't
like, and can then be told they aren't allowed to work in their chosen
profession for a year or two.
American workers do have rights, even in Florida; you just don't have many. But
you do have some rights, if only you know how to exercise them. You also have
the right to vote, and to petition your representatives to change the law. In
this economy, shouldn't an employer have more reason than an intense dislike of
the color orange to fire you?
Orange-Americans unite: stand up for yourselves!
See more employment law posts on Donna
Ballman's blog, Screw You Guys, I'm Going Home.
For more information about LexisNexis
products and solutions connect with us through our corporate site.