Small Business

Free Speech and the Factory Floor


By Karen E. Klein Q: One of the employees in my fabrication business uses the office computers to cruise the Internet and post comments at political forums. He is a very left-wing loudmouth, hates our President, and rants about the war in Iraq as "genocide for oil." Some of his opinions get his fellow workers so angry I have to step in to keep the peace. He is about 24 years old, has a degree, and is smart. My question: If I have to, can I fire him? I can't say it's a routine layoff because I'm hiring other people at the moment. I don't want to terminate him, because he actually does an honest day's work, but if he doesn't stop rubbing his workmates the wrong way, I will have a civil war on the shop floor. I've thought about taking him into my office and saying that he has to leave his politics in the parking lot with his bicycle, but I'm scared he might sue me for violating his First Amendment rights. If you can help me I would be grateful. -- C.O., Brooklyn, N.Y.

A: If the situation is truly as you describe is, there is no New York statute that would prohibit you firing this employee for disrupting your business environment, says Vincent Alfieri, a leader of the labor and employment law division at Bryan Cave LLP, a Manhattan-based law firm. While the rules may be different in other states, Alfieri says, a private employer in New York has the right to terminate employees as he or she sees fit, particularly if the worker's conduct is detrimental to the operation of the business.

That said, there are specific and protected workplace activities that you should be aware of. For instance, an employee trying to persuade co-workers to join a union cannot be fired for doing so, even if the boss sees it as "disruptive political activity." Similarly, "an employee complaining about discrimination at the workplace in a passionate, left-wing way" cannot be terminated for that reason, Alfieri says.

DOS AND DON'TS. If, as you say, your employee is provoking his co-workers simply by criticizing the current Administration and voicing provocative political opinions, you should find out exactly what he is doing. What is he writing about online? What is he saying that draws such angry responses from his colleagues? Examine what he's doing closely, document everything you can, and then by all means speak honestly and fairly with him about the situation.

You might also speak with the co-workers who are offended by him. A compromise might be worked out that would involve more tolerance on the part of several employees, not just the loudmouth. "I would counsel you to make a good record of his activity and your activity and take reasonable steps with caution," Alfieri says. "Give him an opportunity to correct his ways, ask him to desist, put him on notice, discipline him if you have to, but make it clear that he's being disruptive and you can't tolerate that on the job anymore."

Note the key phrase: on the job. New York law protects employees against discrimination, retaliation, or termination for activities they engage in outside of the workplace, including political activity. For instance, even if he's a member of a political group that you disagree with or abhor, you cannot fire him so long as he keeps it out of the office, Alfieri says.

Have a question about your business? Ask our small-business experts. Send us an e-mail at Smart Answers, or write to Smart Answers, BW Online, 45th Floor, 1221 Avenue of the Americas, New York, N.Y. 10020. Please include your real name and phone number in case we need more information; only your initials and city will be printed. Because of the volume of mail, we won't be able to respond to all questions personally. Karen E. Klein is a Los Angeles-based writer who covers entrepreneurship and small-business issues.


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