The Current Situation

With a global pandemic still looming, a presidential election nearing, and hundreds of protests occurring daily, we are facing times filled with uncertainty and change. Many are taking this time to make their voices heard, by advocating for causes they believe in. In this age of social media, where a person’s words can reach millions in a matter of minutes, it’s important to know your rights. For employers and employees alike, there are laws and general rules to be aware of when making decisions and publicly taking a position.

An “At-Will” State

Florida is an “at-will state”, meaning employers have the right to terminate employees for any, or even no, reason so long as there is no discriminatory intent behind the action. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. Discrimination includes things like terminating, refusing to hire, or otherwise treating a person different with respect to compensation, terms, conditions, or privileges of employment for any of those prohibited reasons.

Guidelines for Employers and Employees

So long as they do not violate Title VII, employers are free to make statements to the public and/or internally to employees to make it clear where they stand. It might actually be in the employer’s best interest to do so, in order to provide some clarity for employees. Establishing clear guidelines and policies can help employees know what actions are permitted and what actions could result in them being punished. Examples of policies that employers may consider include:

• Employees are permitted to participate in protests so long as they are peaceful, and lawful.
• Staff may (or may not) wear their uniform or other articles that identify the company while at a protest.
• Workers should (or should not) identify themselves as employees of the company on social media if they are publicly taking a position on a matter that is controversial or contrary to the position of the company.

Likewise, employees should also take reasonable steps when sharing their opinions and positions on controversial matters and current events.  This may minimizing their chances of facing disciplinary action at work. One very important step employees should take is to change the settings on their social media profiles to “private”. While this does not completely prevent words from reaching people (other than the intended audience), it gives some level of control. Another helpful step is to remove anything from social media profiles that can be used to identify the employer. This prevents the possibility of an employee’s personal views being mistakenly believed to be the views of the company. It also reduces the chance the employee will be punished for taking a position different from the company.

Regardless of whether you are an employer or an employee, you should think twice before speaking. In addition to violating the law, saying and/or doing things that are against “public policy” could be costly.  For example, the Company could lose customers, turn away potential employees, or obtain a bad reputation. Once it’s on the internet, it could be there forever. The best practice is to avoid things that you may later regret.

Kristie Scott’s Recent Interview by the Tampa Bay Times

Attorney Kristie Scott was recently interviewed by the Tampa Bay Times on this topic, a copy of that article can be found here: Tampa Bay Times Article by Christopher Spata: “Can you be fired for Protesting?”. Instead of focusing on the title of the article, Kristie Scott encourages reading the full article, itself. She also reiterates that: (1) Employers should disclose their missions, values, and positions to their employees. (2) Employers should share their expectations with their employees as to how employees should behave online and at protest. (3) Finally and most importantly, just because an employer “can fire” an employee… doesn’t mean it “should”.  This is  because taking actions which are against public policy can have a detrimental impact on the employer.