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Dec 6, 201112:00 AMOpen Mic

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Can I fire an employee for political activity? | submitted by Nilesh P. Patel

Can I fire an employee for political activity? | submitted by Nilesh P. Patel
2011 seems to be the year of political unrest. The Occupy Wall Street protest is gaining support in other major cities, such as Oakland, Seattle, and Madison. Wisconsin has also seen its share of political protests about public employees’ collective bargaining rights (Act 10), litigation over access to the State Capitol, and civil disobedience against a banning of signs and cameras in the legislative galleries.

What happens, though, if a private-sector employer does not want employees participating in political activity, including party politics? Maybe the employer feels business and politics don’t mix and bring unwarranted conflicts for the business. Maybe an employer doesn’t agree with the views being aired and doesn’t want employees taking part in those activities. Or maybe an employer simply doesn’t want to have employees with different political beliefs. Is that legally possible? Is that allowed?

These questions can arise not just as a result of a formal organization-wide policy, but also as a result of individual managers’ preferences. This article explores those issues in the context of the private-sector workplace in Wisconsin.

Pockets of protected political activity

In order to fire an employee for participating in political activity, an employer needs to determine whether political activity is a protected right.

With the exception of unionized workers, who may have a contract with a just cause standard or a clause protecting political activity, I am going to assume that most private-sector employees are employees-at-will. Thus, they can be fired for participating in political activity if there are no laws or public policy considerations stopping the employer.

Private-sector employees cannot count on the First Amendment to protect them if the employer does not approve of the activity. Constitutional rights of free speech or freedom of assembly protect government employees, but those rights have not been extended to private-sector employees or job applicants. Thus, an employer would not be engaging in illegal discrimination by refusing to hire an applicant or by firing an employee engaged in political activity.

Currently, there is no state-level law in Wisconsin protecting participation in political activity. However, employers may not interfere with an employee’s right to vote. There is a subtle distinction here in that the right to vote protects participation in the democratic and political process, but it does not extend to providing a right for employees to discuss their views, to openly discuss their party affiliations, or to engage in rallies/protests in support of their cause.

The city of Madison does have an ordinance that protects applicants and employees from discrimination based on political beliefs. Political beliefs mean: “one’s opinion, manifested in speech or association, concerning the social, economic, and governmental structure of society and its institutions.” Thus, Madison-area employers do need to be careful in reviewing the ordinance’s scope before taking any adverse action against an employee. Employers outside of Madison should check their locality, including at the county level.

When there are no statutes or contracts to stop an employer, employees may attempt a wrongful discharge claim. The wrongful discharge claim would not be of use here because the Wisconsin Supreme Court has ruled that there is no such thing as a bad-faith discharge in the context of employment-at-will. In addition, a public policy restriction against employment-at-will would only exist if the employee is fired for doing something clearly mandated by constitutional or statutory provisions. Since participation in political activity is a choice, an employee should not be able to use the public policy argument.

Therefore, with the exception of local rules, such as the city of Madison ordinance, employers may fire an employee for participating in political activity.

Collateral laws – when to be careful

Employers need to be careful that they do not get caught up in collateral issues that do lead to legal trouble. Many times, firing an employee in a protected group may lead to a claim that the discharge was because of the protected group status, not for the political activity. For example, an employee who is fired for participating in a gay rights rally may claim the discharge was for his/her perceived sexual orientation, not for political activity.

Employers need to be especially careful when dealing with veterans or employees supporting union causes, because the discharge may trigger protections under other laws. For example, veterans may have USERRA protections that prohibit discharge unless it is for “good cause.” Unless the employer can show that participating in political activity rises to the level of severe misconduct, firing a veteran may prove a costly mistake.

Similarly, an employee protesting about collective bargaining rights may be protected by the NLRA if there is a sufficient connection between the topic of the protest and the individual’s employment. While it is questionable whether a protest about public-sector collective bargaining rights has anything to do with an individual in the private sector, attendance at a rally in support of a union that could represent the employee may trigger NLRA protection.

Attorney Nilesh P. Patel is a member of Wisconsin SHRM, the Society of Human Resource Management. More information can be found at
www.wishrm.org.

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