On May 17, 2010, MSN.com had a news article with the headline: “Waitress fired for gripe about tip on Facebook.” [http://www.msnbc.msn.com/id/37192342/from/ET?gt1=43001] As addressed in that article, a North Carolina waitress was fired by her pizza joint employer after she complained on her Facebook wall about customers that had left only a $5 tip, after she waited on them for nearly 3 hours.
This got me thinking about just what “rights” do employees have in the workplace, or from the other side of the coin, what rights do employers have on this issue? Coming as it does on the anniversary of Brown v. Board of Education, I start this post with a quote from the late U.S. Supreme Court Justice Thurgood Marshall re: the 1st Amendment and freedom of speech:
“Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.” (Emphasis added.)
Given these pronouncements (and many others like this passage), one would think that “free speech” rights of the 1st Amendment would have prohibited the employer from firing our under appreciated waitress from North Carolina. Certainly, such a result could not have occurred in California? Or, could it?
California Labor Code § 96(k) makes it unlawful for an employer to demote, suspend, or discharge an employee for lawful conduct occurring during nonworking hours away from the employer’s premises.
Further, Labor Code § 98.6 then expressly refers to Labor Code § 96(k) and provides that “[n]o person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96.” [Labor Code § 98.6(a)]
Further, Labor Code § 98.6 further provides that “any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of his or her employment because the employee engaged in any conduct delineated in this chapter, including the conduct described in Labor Code § 96(k) and/or Labor Code § 1101 shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer. [Labor Code § 98.6(b) (Emphasis added.)]
Using these provisions, one might assume that an employer would not be able to fire an employee based on the free exercise of his or her right to free speech. However, the case of Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 14 Cal.Rptr.3d 893 (“Grinzi”) provides otherwise.
In Grinzi, the Plaintiff used the 1st Amendment and these Labor Code provisions to assert that she was wrongfully terminated in violation of public policy. Yet, the Court in Grinzi held that the plaintiff's public policy claims based on the First Amendment of the United States Constitution failed.
Ms. Grinzi was fired because she was a member of an organization of which the employer disapproved. [Id . at 78.] The plaintiff asserted a wrongful termination claim based on the First Amendment. [Id.] The court rejected the claim, however, concluding that because the First Amendment, the constitutional provision on which the plaintiff relied, did not adequately delineate a public policy violation in this case since it protects only against government conduct and not that of private employers. [Id. at 80.] The court noted that a contrary result would be unreasonable because it would require employers “to realize they must comply with requirements from which they are exempt or suffer the possibility of tort liability.” [Id. at 81-82.] Simply put: the First Amendment protects freedom of speech against action taken by the government. It does not establish or support a public policy forbidding private employers from terminating employees for exercise of their First Amendment rights. [Grinzi, supra, 120 CA 4th 72, 84]
The Court in Grinzi also addressed Plaintiff's arguments based on Labor Code §§ 96 and 98.6. While Labor Code § 98.6 prohibits discharging or discriminating against an employee for “conduct described in Lab.C. § 96(k)” ... authorizing the Labor Commissioner to take assignment of wage claims “for loss of wages as the result of demotion, suspension or discharge for lawful conduct occurring during nonworking hours away from the employer's premises,” [Lab.C. § 96(k) (emphasis added); this statute does not provide employees with substantive rights. It is merely “a procedural mechanism that allows the Commissioner to assert, on behalf of employees, their independently recognized constitutional rights.” [Barbee v. Household Automotive Finance Corp. (2003) 113 CA 4th 525, 536]
Thus, under California law, it would appear that a private employer may be permitted to terminate an employee for exercising “free speech” rights.
On the other hand, First Amendment rights do appear to be protected in the employment arena, where the employee is employed by a governmental entity.
“A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. (Citation). On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public…. Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification ‘far stronger than mere speculation’ in regulating it.” [City of San Diego, Cal. v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 523 (2004)] (In the final analysis in that case, however, the Court found that the government employee was properly fired for his “speech” of offering pornographic images of himself on the internet.)
In the end, the “bottom line” analysis must focus again on the 1st Amendment itself, which provides that “Congress shall make no law… abridging the freedom of speech.” The Supreme Court has generally interpreted that to mean government action that limits free speech must be strictly scrutinized. When all of this filters down to the employee/employer relationship, since the government did not restrict the waitress’ speech regarding her miserly tip, at least in California one would expect the courts to uphold that termination.
The final word of warning: be careful what you post on your social media sites.
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