Can an employer fire a publicly-avowed white supremacist?

Screenshot of rally photo from Huffington Post

While following developments concerning the horrific white supremacist/neo-Nazi/KKK rally in Charlottesville, Virginia this weekend, I asked myself, how would I like to be working with one of these lovely individuals? I then thought, if I was a manager, could I simply fire a white supremacist for participating in the rally?

The answer to the first question is easy and purely personal: No way would I want to share office space, a cubicle area, an office suite, a store floor, or a factory floor with one of these folks. And as an Asian American, I assume they’d feel the same way towards me.

The answer to the second question is more objective, complicated, and nuanced: Yes, in many instances the law would allow a manager to terminate a white supremacist for participating in the rally, but there are potential exceptions and twists, especially for unionized and/or public employees. Without pretending to be exhaustive on the topic, here’s a brief lowdown of relevant legal rules:

  • In the U.S., the rule of at-will employment is the presumptive legal hiring relationship. Among other things, it means that an employer can hire or fire someone for any reason or no reason at all, so long as it does not violate existing legal protections or obligations.
  • Fair or not, the rule of at-will employment allows employers to make hiring and termination decisions based even on many types of off-site, non-work-related activities.
  • Employment discrimination law prohibits discrimination against or harassing of other employees on the basis of certain characteristics, including race, sex, religion, color, national origin, age, and disability. This would be especially relevant if someone took their white supremacist messages into the workplace.
  • For private-sector workers, constitutional free speech protections do not apply to their jobs.
  • For public-sector workers, constitutional free speech protections may apply if they are speaking out on matters of public concern in ways that aren’t related to or internally disruptive of their work. (Yes, as noxious as it may be to some of us, it is arguable that a public-sector worker participating in this rally would be protected from termination under this set of legal rules.)
  • For unionized workers, collective bargaining agreements may provide additional substantive and procedural safeguards for wrongful termination, which may cover off-site conduct.
  • A minority of employees have individual employment contracts with so-called morals clauses that may be relevant in these situations. 
  • State law can matter in these situations. Connecticut, for example, has a broad employee free speech law that covers both private and public sector workers. California has a law that protects employees’ right to political expression.
  • If an employee engaged in violent behavior, especially that leading to a criminal conviction, their potential legal protections against wrongful termination would severely diminish.

Taking all these points into consideration, what does this mean for whether employers could fire workers for participating in one of these rallies on their own time? Bottom line is that many private-sector employees could probably be terminated without much risk of liability, but that public-sector workers may be able to raise constitutional free-speech protections. However — and here’s my lawyer’s analytical caution entering the picture — each situation would have to be evaluated individually. There’s no sweeping, catch-all rule that answers this question as yes or no for every situation.

***

August 14 update: This topic has gained relevance due to efforts by certain civil rights/social media activists to “out” white supremacist protesters who are appearing in published photographs of the Charlottesville rally. Apparently the first protester to lose his job is a young man who worked at a fast food eatery, Top Dog, in Berkeley, California, per this piece in the UC-Berkeley student newspaper. 

If readers detect some ambivalence on my part on the use of such tactics, then their perceptions are accurate. I abhor and detest these white supremacists and their worldview. But I also have concerns over how social media can be used to go after anyone in ways that have significant consequences. I think we need to be very careful about determining one’s suitability for employment based on off-site conduct that, while deeply objectionable, may be legal. 

***

Though slightly dated, the legal discussion in my 1998 law review article on the free speech rights of private-sector employees, “Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-Industrial Workplace” (Berkeley Journal of Employment and Labor Law), remains largely intact today. You may access it without charge here.

How do social and economic class differences impact workplace bullying?

Do social and economic class differences impact workplace bullying and mobbing behaviors? If so, how?

America continues to think itself as a classless society, despite deep and worsening wealth divisions. Now, however, it appears that a combination of the ongoing effects of the Great Recession and the tumult associated with the election of Donald Trump has prompted some closer looks at class distinctions. For example, The Guardian newspaper has launched an ongoing investigative study of class and inequality in the U.S.:

We’re calling it On the Ground: reporting from all corners of America. The series is funded in part by a grant from the Rockefeller Foundation to support the Guardian’s reporting on wealth inequality in America. The Rockefeller grant will fund a broader Guardian project called Inequality and Opportunity in America, focused on economic disparities due to work, class and inequality.

Also, Annie Lowrey, writing for The Atlantic, spotlights a new book by Richard V. Reeves, Dream Hoarders (2017), that points a finger at America’s upper middle class as a major culprit in reinforcing inequality. While recognizing the extreme wealth concentrations enjoyed by the top one percent, Reeves argues that the top twenty percent have also enjoyed considerable success in recent decades, leaving the others in their wake. He further posits that these advantages are being passed on to their children in ways that will only harden social and economic class inequalities.

I’d like to take a closer look at these commentaries in a future post, but for now let’s return to bullying and class distinctions. I did a quick search for studies examining potential relationships between workplace bullying and social/economic class and didn’t come up with much. But the more I ponder the question, the more I’m convinced that class can play out significantly in this realm. It may manifest itself in a well compensated manager or highly degreed professional who looks down at less educated, lower paid co-workers and treats them accordingly. It may involve a group of co-workers who see a peer as not being from their side of the tracks (whichever side that may be) and bully, harass, and ostracize that individual because of it.

In any event, this topic is ripe for more research and understanding. Workplace bullying, mobbing, and abuse may occur due to many reasons. Class distinctions definitely belong on the list.

Timothy Snyder on standing out

Historian Timothy Snyder (Yale) has written an important little book for our times, On Tyranny: Twenty Lessons from the Twentieth Century (2017), which belongs on the must-read lists of change agents who are confronting abuses of power. Essentially it’s a 128-page expanded essay that can be read in an evening — and hopefully will be re-read to reinforce its core lessons.

Among the 20 short chapters of instruction, number 8, “Stand out,” resonates specially with me:

Someone has to. It is easy to follow along. It can feel strange to do or say something different. But without that unease, there is no freedom. Remember Rosa Parks. The moment you set an example, the spell of the status quo is broken, and others will follow.

For this chapter, Snyder draws heavily upon examples of heroism during the Second World War, especially that of Winston Churchill. Citing the Prime Minister’s political leadership and brave oratory, Snyder notes that “had Churchill not kept Britain in the war in 1940,” the Allied forces would never have had the chance to win the war. “Today,” writes Snyder, “what Churchill did seems normal, and right. But at the time he had to stand out.”

Of course, even in the fiercest of onslaughts, battles must be picked. Snyder briefly mentions the evacuation at Dunkirk in 1940, a massive operation that rescued what remained of the British expeditionary force after France fell to the Nazis. Dunkirk illustrates how fighting to the bitter end is not always the answer. Sometimes you need to retreat and regroup to fight another day.

History provides us with guidance only; it is not an instruction book. But as Snyder observes, “We are no wiser than the Europeans who saw democracy yield to fascism, Nazism, or communism. Our one advantage is that we might learn from their experience.”

Genetic testing for workplace wellness program participants: Coming soon to a company near you?

Ten jumping jacks and a blood sample, please

It sounds like something out of a dystopian sci-fi novel, but Republicans in the U.S. House of Representatives are advancing a bill that would allow employers to require employees to undergo genetic testing in order to participate in voluntary workplace wellness programs. Workers who refuse may face significantly higher health care premiums as a penalty. Lena Sun reports for the Washington Post about the proposed Preserving Employee Wellness Programs Act:

Employers could impose hefty penalties on employees who decline to participate in genetic testing as part of workplace wellness programs if a bill approved by a U.S. House committee this week becomes law.

…Under the Affordable Care Act [a/k/a Obamacare], employers are allowed to discount health insurance premiums by up to 30 percent — and in some cases 50 percent — for employees who voluntarily participate in a wellness program where they’re required to meet certain health targets.

…But the House legislation would allow employers to impose penalties of up to 30 percent of the total cost of the employee’s health insurance on those [wellness program participants] who choose to keep such information private.

Currently the Genetic Information Nondiscrimination Act (GINA) prohibits employers and ensurers from using genetic information for discriminatory purposes. In addition, the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a recognized disability, which could be identified through genetic testing.

As Sun reports, the dozens of organizations that oppose this bill — which include “the American Academy of Pediatrics, AARP, March of Dimes and the National Women’s Law Center” — argue that the proposed legislation would substantially undermine the basic privacy protections provided by GINA and the ADA.

The bill has passed through the House Committee on Education and the Workforce, with all Republicans voting yes and all Democrats voting no.

If enacted into law, this means that if you want to participate in a workplace-sponsored program to stop smoking, lose weight, or learn mindfulness practices, then you can be required to give your genetic information to your employer as a condition for doing so. If you don’t want to provide a genetic sample but still want to join the wellness program, then your employer can boost your health insurance premiums by up to 30 percent.

The bill itself is alarming enough, but the door it opens is positively frightening. Even if it doesn’t become law, the fact that it has been quickly ushered through a House committee by a pure party line vote sends a disturbing signal about the kind of policy proposals that are holding sway in Washington D.C. today. These are not normal times, and we should all be paying close attention.

Working while distracted (and wired)

I was less distracted when this was my PC (image of Commodore 64 computer courtesy of Wikipedia)

I was less distracted when this was my PC (Commodore 64 computer, courtesy of Wikipedia)

Raise your hand if the daily torrent of news coming out of Washington D.C. continues to serve as an unwanted distraction, perhaps intrusion, at work.

If you follow the news at all and have access to the Internet or a news media source during work time, my guess is that you’re raising your hand with me. In fact, I cannot recall another sustained period of ongoing news developments that has so commanded our attention. Dramatic, sometimes disorienting developments seem to occur on a daily basis, and the practically instantaneous nature about the way news is reported in the digital era has created news cycles within news cycles.

To be sure, the political news developments today are attention-grabbing. But let’s not forget the role of technology in making them so of-the-moment. Imagine, for example, how completely distracting major events of the Second World War would’ve been had modern communications technologies been available to cover and report them. (Picture embedded reporters covering, say, carrier launches of aircraft during the Battle of Midway!)

Another more bottom-line impact is organizational productivity. How is this ongoing drama affecting the aggregate outputs of workplaces in both qualitative and quantitative terms? I strongly suspect the answer is not a positive one.

Author Jenna Blum: “I didn’t become a writer to not say what I believe in”

A great writer hamming it up for the camera

Hamming it up for the camera, or searching for an angle that clarifies today’s America?

How does a socially conscious novelist speak her truth in the Age of Trump?

For my long-time friend Jenna Blum, author of the New York Times bestselling novel Those Who Save Us and one of Oprah’s Top 30 women writers, it means weaving her values into her stories, sharing her views on social media, and engaging in political activism.

On Saturday, Jenna was the featured speaker for a program hosted by the Boston chapter of the Women’s National Book Association, speaking on the “crucial role of women’s literary voices in literature in the current political climate, and the fusing of art, writing, and activism.” She gave a wonderful talk, mixing personal stories, an understanding of history, and a sense of humor laced with vocabulary befitting a native of New Jersey.

Jenna’s own life story infuses her political outlook and her alarm over the election of Donald Trump. The daughter of a Jewish father and news writer and a mother of German heritage, she grew up in a household surrounded by books and an awareness of 20th century history. To write Those Who Save Us, a story set in World War II Germany, for over a decade she immersed herself in the Nazi era, reading deeply and serving as an interviewer of concentration camp survivors for Steven Spielberg’s Survivors of the Shoah Foundation.

This perspective fundamentally shapes her view of America’s current political situation. Referencing Stephen King’s debut novel Carrie, she said that Election Night 2016 was “like Carrie at the prom,” expecting “something awesome,” only to see it turn into a nightmare. Every morning, she wakes up knowing that “something bad has happened to my country.”

Her alarm over the Trump Administration has galvanized her into action, and she has now taken on the role of political activist. She also regularly uses her Facebook page to post action alerts and to share her views of the unfolding situation. (In the process, she sometimes fields criticisms from readers who are fans of her books — which I can attest she handles with both respect and honesty.)

Jenna’s success as a writer was not overnight. She turned Those Who Save Us into a bestseller through sweat equity, including exhaustive self-marketing, countless book club appearances, and talks across the country and internationally. It is to her credit that she is willing to risk some of that hard-earned privilege by urging us to resist what is going on in Washington D.C. today.

Such actions sometimes require facing fears personally. She talked about going to the January women’s march on Washington with names of lawyers written on her arm, in case she was detained and her cell phone was taken away. In fact, Jenna confessed that the Trump phenomenon has activated her “Anne Frank complex,” her label for “persistent fears that the Nazis are going to take me away.” Furthermore, she is aware that other authors are being counseled by publishers and friends to keep their political viewpoints to themselves, and she’s heard that advice as well.

But her remarks on Saturday made clear her belief that this is a time for people to step up and be counted. She is putting those beliefs into action. Besides, she said, “I didn’t become a writer to not say what I believe in.”

thosewhosaveus-cvr-thumb1

“The rules don’t apply to me”

Image courtesy of Clipart Kid

Image courtesy of Clipart Kid

How much misconduct, corruption, and abuse in our society can be attributed to powerful people who believe the rules that apply to everyone else don’t apply to them?

I find myself coming back to this question over and again whenever I learn about significant legal or ethical violations committed by those in positions of considerable power. I’m hardly alone in thinking this way. Google the phrase “does power corrupt” and you’ll get tons of hits to studies and commentaries that basically say, yes, it often does. For example, in a 2016 piece for PBS NewsHour, Dr. Dacher Keltner of the Greater Good Science Center at UC-Berkeley details results of lab experiments where subjects are assigned higher power status:

Just the random assignment of power, and all kinds of mischief ensues, and people will become impulsive. They eat more resources than is their fair share. They take more money. People become more unethical. They think unethical behavior is okay if they engage in it. People are more likely to stereotype. They’re more likely to stop attending to other people carefully. It’s just this paradoxical quality of power, which is the good in human nature gets us power, and then power leads to the bad in human nature.

The effect is a chemical one, as Dr. Keltner explains:

When we feel powerful, we have these surges of dopamine going through our brain. We feel like we could accomplish just about anything. That’s where the power paradox begins, which is that very sense of ourselves when feeling powerful leads to our demise, leads to the abuse of power.

Now, I am not a high-and-mighty moralist when it comes to following rules for their own sake. Yes, there are rules of law and of everyday behavior that we should do our best to follow. However, I believe that some rules are unjust and/or unwise, and that discretion, mercy, and understanding should enter the picture too. But I’m not talking about the gray areas here, rather, I’m referring to abuses of power by those who have a lot of it.

What are the solutions? Citing a growing body of research, Dr. Keltner suggests that accountability and genuine transparency are key among them:

This really interesting new literature shows that when I’m aware of what other people think of me, when I’m aware of my reputation, I cooperate more in economic gains. I am more likely to sign up for environmentally efficient services. I am more likely to pay taxes. Just this sense that my actions are being scrutinized and my reputation is at stake produces better behavior for the public good or the greater good.

In addition, I’ll weigh in wearing my legal and public policy hat: The vital concept of checks and balances on power fundamentally shapes the United States Constitution and roles of the executive, legislative, and judicial branches of government. I think it’s a good idea for us to implement or reinforce such mechanisms in our public, private, and non-profit institutions. Also, when one individual, cohort, or institution becomes too dominant, we need what economist and author John Kenneth Galbraith called “countervailing power” to challenge these exercises of control.

We live in an age where abuses of power are common. The fixes are fairly easy to identify but hard to implement. We’ve got a lot of work to do.

%d bloggers like this: