A private employee who does not have an employment contract can be fired for any reason, or no reason at all, unless the firing violates public policy.  For example, an employee cannot be fired on account of race or sex or age.

During the latter half of 2017, there were several publicized firings of employees based on politically-charged actions that they took outside of the workplace.  For example, an employee of a Berkeley, California, restaurant was fired (or resigned under pressure) when he was outed on the internet as having participated in a white nationalist rally in Charlottesville, Virginia, on August 11.

Similarly, a coach and substitute teacher at The Academy of the Holy Cross in Kensington, Maryland was fired in October 2017 when it became clear that he was a key organizer for the alt-right.

At the other end of political spectrum, a cyclist was fired by her employer after she was photographed while raising her middle finger as President Trump’s motorcade passed.

These firings raise the question as to whether an employer can fire an at will employee who expresses political views outside of the workplace.

The generally accepted answer to the question is: Yes. However, at least one eminent commentator, Harvard Law Professor Benjamin Sachs opined that the cyclist’s firing was unconscionable and should be illegal. Professor Sachs offered Novosel v. Nationwide Ins. Co., 721 F.2d 894, 900 (3d Cir. 1983), as a legal precedent to support his opinion.

As Professor Sachs noted: “Novosel is a favorite of law professors, but largely has been ignored by the Courts . . . .”  Novosel, a case in which the United States Court of Appeals for the Third Circuit held that Nationwide’s firing of an employee who refused to engage in a lobbying effort sponsored by the company, was based on First Amendment jurisprudence derived from public employee cases.

Although the courts have not embraced Novosel’s First Amendment theory, Section 7.08 of the Restatement of Employment Law, which was approved by the American Law Institute in 2015, provides protection for employee personal autonomy interests.

Although there was no direct case law or statutory support for the provision, the comment to Section 7.08 states that it draws upon various “statutory and common-law sources to recognize an implied understanding between the employer and employee that the employer will not intrude upon an employee’s autonomy interest to the extent stated in this Section.”

Professor Matthew T. Bodie, one of the Associate Reporters for the Restatement of Employment Law, recently has written an article advocating ”for a change to the employment at-will default to make clear that the employer will not terminate employees for exercising their personal autonomy, as long as that exercise does not interfere with the employer’s business or reputation.”  Matthew T. Bodie, The Best Way Out Is Always Through: Changing the Employment at-Will Default Rule to Protect Personal Autonomy, 2017 U. Ill. L. Rev. 223, 266 (2017).

Whether a court will adopt Section 7.08 remains to be seen. However, it provides useful guidance for employers who may be faced with employees who engage in contentious political activities.

Section 7.08 provides:

  • (a) Employees have protected interests in personal autonomy outside of the employment relationship. Such interests include:
    1. engaging in lawful conduct that occurs outside of the locations, hours, and responsibilities of employment and does not refer to or otherwise involve the employer or its business;
    2. adhering to political, moral, ethical, religious, or other personal beliefs or expressing such beliefs outside of the locations, hours, and responsibilities of employment in a manner that does not refer to or otherwise involve the employer or its business; or
    3. belonging to or participating in lawful associations when that membership or participation does not refer to or otherwise involve the employer or its business.
  • (b) Unless the employer and employee agree otherwise, an employer is subject to liability for intruding upon an employee’s personal autonomy interests if the employer discharges the employee because the employee exercises a personal autonomy interest under § 7.08(a).
  • (c) The employer is not liable under § 7.08(b) if it can prove that it had a reasonable and good-faith belief that the employee’s exercise of an autonomy interest interfered with the employer’s legitimate business interests, including its orderly operations and reputation in the marketplace.

Section 7.08 possibly would have protected the employee who participated in the white nationalist rally in Charlottesville, the alt-right organizer and the woman who gave President Trump’s motorcade the middle finger.

Although there have been no reports indicating that either employee has taken any action against his or her employer, employers should be aware the employment at will doctrine is not impregnable. There are legal theories afloat that could provide a good faith basis for an employee fired on account or his or her politically-charged activities outside of the workplace to bring an action.  Employer beware.

If you have questions about employment law, Astrachan Gunst Thomas, P.C. can help.  Contact Mark Stichel at hmstichel@agtlawyers.com (410-783-3547) or Elizabeth Harlan at eharlan@agtlawyers.com (410-783-3528).