Friday, July 31, 2020

Can an Employer Terminate Someone for Their Public Opinions?

By Casey Erick


Dr. Simone Gold, a Board-Certified emergency physician who appeared in the hydroxychloroquine viral video this week, has now lost her job. She said she was fired from her job because of the media slander. Dr. Gold, the founder of the newly created group called America’s Frontline Doctors, lost her job after her employer found out about the viral video in which she promoted hydroxychloroquine.

 

The Viral Video

The viral video, which features members of America’s Frontline Doctors at a press conference outside the Supreme Court in Washington, D.C., was taken down from Facebook, YouTube, and Twitter. The video received more than 14 million views on Facebook alone, according to CNN citing CrowdTangle data, yet the social media platforms removed it, along with removing tweets where the president shared the video.

In the video, Dr. Gold said: “We’re here because we feel as though the American people have not heard from all the expertise that’s out there all across our country.” Gold is also the head organizer of an open letter signed by more than 600 doctors calling on President Trump to end the lockdown. The letter described widespread state orders that have kept businesses closed and children home from school as a “mass casualty incident” with “exponentially growing health consequences.”

USA TODAY confirmed that most signatories are physicians with active state medical licenses, but their specialties and experience suggest they were offering little more than personal opinions rather than research experience on infectious diseases.

 

First Amendment Rights Generally

The First Amendment is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views may be voiced largely into the hands of each of us, in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. McCutcheon v. Federal Election Com'n, 572 U.S. 185, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014). All ideas having even the slightest social importance, including unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion, have the full protection of the constitutional guarantees of free speech and press unless excludable because they encroach on the limited area of more important interests.  Roth v. U.S., 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957).

 

Government Action is Required

As a general rule, the constitutional guarantee of free speech is a guarantee only against abridgment by the federal or state government, Hudgens v. N. L. R. B., 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976), and not by private persons using their property nondiscriminatorily for private purposes only. Lloyd Corp., Limited v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972). Indeed, purely private restrictions on the right of free speech are not prohibited in many instances where the First Amendment would forbid similar interference by the government. Holodnak v. Avco Corp., Avco-Lycoming Div., Stratford, Connecticut, 514 F.2d 285 (2d Cir. 1975).  Thus, the First Amendment, the terms of which apply only to governmental action, ordinarily does not itself throw into constitutional doubt decisions of private citizens to permit or to restrict speech, even where those decisions take place within the framework of a regulatory regime such as broadcasting. Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727, 116 S. Ct. 2374, 135 L. Ed. 2d 888 (1996). Furthermore, under the First Amendment's Free Speech Clause, the citizen is entitled to seek out or reject certain ideas or influences without government interference or control.  U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000).

 

Freedom of Speech Protections in the Private Sector

A private sector employer could take the absence of a direct First Amendment right as providing free rein to discipline, terminate or retaliate against employees for their speech in the workplace. Before doing so, however, the private sector employer should take into account the effect of the anti-discrimination laws such as Title VII, whistle blower laws, and various local laws.

These laws provide a level of statutory protection for certain types of expression in the workplace, and thus should be considered even if the right of speech associated with these laws is not a “First Amendment” right. For example, punishing an employee because of his religion is not a First Amendment violation in the private sector, but it would be a violation of the anti-discrimination laws. Conversely, the anti-discrimination laws prohibit certain types of expression on the part of employers, such as comments that constitute sexual or racial harassment, thereby putting a limit on “free speech” in the workplace.

Chief among these is the National Labor Relations Act, which protects employee discussions about the terms and conditions of their employment, NLRB v. Brookshire Grocery Co., 919 F.2d 359, 362 (5th Cir. 1990),  wages, see 29 U.S.C. § 157, and hours and benefits. Id.; see also Hispanics United of Buffalo, Inc., 2012 N.L.R.B. LEXIS 852 (2012). Importantly, the act only prevents employers from interfering with this type of employee speech when it takes place “in concert with” other employees. Meyers Industries Inc., 268 N.L.R.B. 493, 505 (1984).   An individual’s complaints about his or her own wages, particular hours, or specific benefit package are not protected, as these are not made “in concert with” other employees. 29 U.S.C. § 152(2)-(3). It is also important to note that government employers are exempt from the National Labor Relations Board’s jurisdiction. Three D, LLC d/b/a Triple Play, 361 N.L.R.B. No. 31 (2014).

Communications protected under the National Labor Relations Act are just as protected when they take place on social media as they are in any other context. The NLRB has been relatively permissive in defining concerted activity on Facebook—even “liking” another employee’s post about common working conditions is considered acting “in concert with” another employee. E.g., 42 U.S.C. § 2000e.

All employers — public and private — also have a duty to take reasonable steps to prevent harassment, discrimination, and retaliation. Thus, employee social media posts complaining about these activities are generally protected. E.g., 42 U.S.C. § 2000e. Similarly, once an employer is aware of potential harassment, discrimination, or retaliation by one employee against another, the employer has a duty under Title VII of the Civil Rights Act to take reasonable steps to investigate and mitigate that behavior. This applies equally in the online context. Thus, where one employee engages in harassing or discriminatory speech against another — including online — the employer must investigate and remediate as necessary.


 

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