The Miami Marlins suspended
new Manager Ozzie Guillen for saying: "I love Fidel Castro," and "I
respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel
Castro for the last 60 years, but that mother-f***er is still here."
First it was reported as a suspension without pay, but it turns out it's a
suspension with pay. He had to apologize for his remarks. No question; his
remarks offended most of the community his employer serves. While you may not
think they were that bad, trust me: the Cuban community was offended. If you
don't follow Cuban politics, just imagine someone saying they admire the KKK,
Hitler or Bin Laden and you'll get the drift.
Did he mean to offend? Probably not. Were the company's customers upset? Absolutely.
Still, some folks expressed shock that an employer could punish an employee for
espousing his opinion. "What about the First Amendment?" they cried.
I've said it in my
book and I'll say it again. There is no free speech in corporate America.
The First Amendment protects us from government action, not the actions of
private companies. That means you can be fired because your private employer doesn't
like what you said (or what
you wore), with very few exceptions.
Mr. Guillen got off easy compared to Brooke
Harris, who was fired from her job as a teacher in a charter school for
teaching about the Trayvon Martin case. Why the difference? Guillen probably has
a contract saying he can only be fired for cause. Martin probably has no
contract to protect her, and her state, like every state in the union but
Montana, is an at-will state, meaning she can be fired for any reason or no
reason at all.
Not all speech is unprotected. Here are some circumstances where your speech
might have some legal protection:
Concerted activity: If you get together with coworkers or take action on
behalf of at least one other coworker (not just on your own behalf) to protest
or try to change working conditions, you may be protected under the National
Labor Relations Act (NLRA). NLRA 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."
Neither Mr. Guillen nor Ms. Harris fits here.
Objecting to discrimination: If you object to illegal discrimination
based on race, sex, religion, national origin, disability, pregnancy, age, or
some other protected status, you are protected against retaliation by Title
VII, the federal law prohibiting discrimination. Ms. Harris might have fit into
this category if she were objecting to discrimination by her employer, but it
doesn't apply to objecting to other types of discrimination.
Political affiliation: Some states, counties and cities have laws
prohibiting discrimination based on political affiliation. Mr. Guillen's
remarks might have fit within this category if his local government or state
had such a prohibition. Had he been in the county just north of Miami, Broward
County, there is an ordinance prohibiting such discrimination. Would he have
filed a complaint? Doubtful. He kept his job and lost no money.
Objecting to illegal activity: If you're objecting to an illegal
activity of your employer, you might be a protected whistleblower. That certainly
doesn't help either Mr. Guillen or Ms. Harris.
Activity outside work: Some states and localities prohibit employers for
firing or disciplining employees for activities outside work. However, even
those laws have exceptions for activity that affects the employer's reputation
or the ability of the employee to do their job. There's little doubt that
Guillen's comments both reflected on the Marlins and affected Guillen's ability
to get his job done, as demonstrated by the multiple protests that occurred.
Contract: This is what probably saved Mr. Guillen. If you have a
contract saying you can only be fired for cause, then check what is says
constitutes "cause." Offending 70% of the customer base may well be cause (but
it might not). It all depends on how it was drafted. Best read up before you
give any press interviews if you think you're protected.
Before you spout off at work (or anywhere) about something your employer might
deem offensive, remember how little protection you have.
Employers are watching more and more closely. They want your Facebook
password. They watch what you post on Twitter. They read your email
messages at work. They look at the websites you visit. Soon, they'll be asking
to read your diary. Heck, if it's on your work computer, they've probably
already read it. Will they start asking for an extra copy of your house key? I
predict some employer will do this within the next couple of years.
Watch what you say, and especially what you email, text or post, even while
you're at home. If you'd be embarrassed to see it on the front page of the
company newspaper, you probably shouldn't put it on your Facebook page.
There's no free speech in corporate America. Big employer is watching.
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.