“This Job Sucks”

(Or, what are the limits on terminating an employee for what they say on their own time?)

On November 8, 2010, the New York Times reported that the National Labor Relations Board filed suit against an ambulance services company for firing an EMT who complained about, and mocked, a supervisor on the employee’s Facebook page (on her own time and on her own computer).   If you’re a private employer in Humboldt County, you should know that there are limits for when you can lawfully terminate an employee for something they’ve said—or published—while off-the-clock.

So, what are the limits?  This won’t surprise you:  there are many.   These should be considered only general guidelines.  First, stay far away from terminating (or demoting, or refusing to hire, etc.) based on any statements an employee makes regarding being in a protected class (i.e., disabled, observant of a religion, homosexual, etc.).   Second, to be safe, lawful conduct by an employee during his or her non-working hours (and away from the place of employment) should not be the basis of a termination.  Third, certain conduct and statements by employees are specifically protected by California statute, such as an employee’s political activity and discussion of wage and hour issues.   (The latter should lead any experienced employer to ask whether an employee can be terminated for making comments about his or her wages while at work. That’s a topic for another day.)  Finally, federal law prohibits termination as a result of an employee's right to participate in "concerted activity" (with other employees) relating to wages and other terms of employment (including union activity).

One thing you don’t see above is protection of employee statements based on the First Amendment “freedom of speech.”  There is at least one California appellate court opinion that makes clear that the First Amendment applies to government action—not private employers. For example, “a newspaper publisher can fire an at-will employee ‘based on dissatisfaction with the content of or views expressed by the reporter's writing.’” (See Grinzi v. San Diego Hospice Corp., 20 Cal.App.4th 72, 81 (2004).)

As always, consult with an employment law attorney if you’re at all unsure about how best to proceed.