workplace rights you think you have … but don’t

Go read Donna Ballman’s article, “10 workplace rights you think you have … but don’t” right now. It’s excellent, and might be eye-opening.

{ 85 comments… read them below }

  1. bob*

    Ok then I have a question that fortunately doesn’t apply to me but it just popped into my head after reading that article. If you get actually fired is a noncompete agreement still enforceable?

    1. Ask a Manager* Post author

      Not unless that specific agreement has language to that effect. That said, a lot of non-competes have fallen apart when the employee has gone to court over them, especially if they have restrictions that a judge decides aren’t reasonable in time and geographic scope.

  2. Kelly O*

    I wish I could print this and post it anonymously in our break room, along with something explaining that smoke breaks are not a God-given right and yes the company can tell you where and when to smoke.

    We have a few smokers here. Recently they began a policy that requires them to clock out if they leave the building for a smoke break (which they have to do as our building is non-smoking.) Up went the roar of “they can’t tell me what to do, they can’t tell me I can’t smoke, I have a right to smoke if I want to and I get a break and if I want to go outside and smoke that’s my business.”

    I’ve heard all of the above. Explaining doesn’t do a lot of good. (The concept of an at-will state seems pretty clear, and I don’t understand why it’s so foreign to so many. Or why those who need to be moved along to the next thing are allowed to stay because someone has to look for a reason to fire them.)

    1. Mike C.*

      This is a management issue. Plenty of companies out there understand how to deal with folks who smoke, and if they don’t there was a rather lively discussion about it on this blog a while back.

  3. Esra*

    American employees don’t seem to have many rights at all. Some items on that list are unsettling.

    1. Slaten*

      Be careful about what you believe is posted on the internet. There are many ways to get around the unfriendly “workers non-rights” that this person listed in their article.

      1. Esra*

        Like Anonymous, I’m also curious.

        Even if you can get around the items listed, it remains unsettling that so many states would not have lawful protections in place.

    2. Anonymous*

      I agree…this makes me happy to be an employee in Canada. No requirement to give you a break? No requirement to give you time off? Frightening.

  4. Mike C.*

    I have to agree with the author’s conclusion – many if not all of those examples are things that employees should be protected from.

    That folks can be fired for their outside of work political activity is particularly disgusting. It’s one thing for an employer to not want folks to wear t-shirts endorsing candidates, but it’s quite another to be fired for having the wrong bumper sticker, donating to the wrong party or signing the wrong initiative petition.

    How are employees supposed to actively participate in their own democracy when they could lose their livelihood over it?

    Shameful, simply shameful.

    1. Shawn*

      To be fair, that doesn’t commonly happen in the real world. I haven’t personally experienced any employer going all “at-will” on someone when firing them. It has only been for performance/true fit issues. Is your proclaimed political affiliation a protected class? No. Are you likely to be fired over your political activity (assuming we are talking about relatively normal activities here)? No.

      1. Mike C.*

        That’s not fair at all, it’s simply a terrible response. It doesn’t matter that it doesn’t happen often enough for you to notice. It’s an unreasonable power that employers have over their own employees and the fact you don’t care is rather disturbing.

        Are you trying to argue that since it only happens infrequently that those who are subject to such unreasonable terms don’t suffer in any way?

      2. Anonymous*

        With an at-will state, can they fire you for any reason without notice? In my province (and I believe most provinces), you can be fired for basically any reason (except protected classes similar to in the US) as long as the employer gives you appropriate notice or pay in lieu of notice.

        Is this the case in the US or are you just SOL if you are fired in an “at-will” situation?

        1. Mike C.*

          No, it’s no the case at all in the United States. They can and will fire you with no notice what so ever. See, while businesses elsewhere have to plan things in advance to allow employees a chance to find work, here business owners are apparently so inept they need every possible edge to remain competitive.

          1. Anonymous*

            Interesting….that definitely makes a difference in my mind. I still think that as an independent employer, you should be allowed to hire and fire anyone you please…so long as you’re not discriminating against someone for those reasons outlined in legislation….however there needs to be a way to level the playing field between employers and employees, which is what our Provincial Employment Standards regulations try to do by requiring pay in lieu of notice.

        2. Natalie*

          I believe you can typically collect unemployment provided you weren’t fired for a serious issue (stealing, assaulting a coworker, etc). But no, there is no required notice period.

          1. Mike C.*

            You still have to fight for that unemployment however, it’s not automatic and many employers (like mine) fight it for frivolous reasons to save money.

    2. Charles*

      So, you think employees should be able to express ANY political viewpoint, even if outside the workplace, and NOT be fired for it?

      Sounds like we need law to “fix” that problem; but wait until the neo-nazi gets a job at the local Dairy Queen and cannot be fired because of “protect political activity.”

      Keep in mind that any company that fires someone who supports a mainstream politician will more likely than not face a less-than-friendly public.

      1. Mike C.*

        I’m only talking about activities outside the workplace. Your job isn’t the place for political advocacy outside of a few obvious and specific situations. The examples I listed were all involving activities occurring during non-work time or at non-work places, so as long as your skinhead buddy doesn’t bring his skinhead beliefs into the workplace, I don’t see why he should otherwise have to forgo the ability to feed and clothe himself in exchange for an honest day’s work.

        The problem is that employers have undue influence over activities that would otherwise be your own damn business. Remember the blacklists of “suspected communists” and how anyone on the list was unable to find work because of suspected political beliefs? Should employees be forced to change or limit what they do in their private time simply because the boss doesn’t agree with their politics, are you really ok with that?

        It wasn’t right then and it’s not right now.

      2. Jamie*

        Your example of a neo-nazi illustrates why there are some instances an employer may need to fire someone to protect their own interests.

        If I owned a company (I don’t) and I found out one of my employees was a neo-nazi, or a member of any group espousing racial hatred I owe it to my other employees to fire him/her.

        What if they’re a supervisor? I don’t for one second believe that anyone who belongs to a hate group would drop their beliefs at the door when they come to work. You can’t participate in a Nazi march on Sunday and then on Monday morning provide fair and unbiased management to your reports regardless of ethnicity.

        However – those people are way on the far side of the crazy spectrum. But it illustrates how protecting all political speech would tie and employers hands.

        But I don’t really don’t think there is a danger of people losing their jobs because they Tivo Sean Hannity and not Keith Olbermann…or vis versa.

        1. Mike C.*

          No, it doesn’t illustrate it at all.

          In the straw man example of the big scary skinhead, you fire the guy the instant he crosses a well known and defined line. The instant they treat someone differently for their protected class, you fire them. Easy as pie, and you save yourself the time spying on them during the weekend. It’s a stupid example that ignores all sorts of nuance and tricky situations that actually happen in real life. If nothing else but for the simple fact that you would have been the person who hired the scary looking guy with crazy tattoos in the first place. Drop, those guys were already defunded by the SPLC anyway.

          Can we talk about real examples now? Lets say I support the ACLU, who defends unpopular groups, like skinheads. Is that extreme enough to get me fired? What if I’m an active member of the local communist party, are you going to fire me then? What if I’m at a protest on my own time supporting unions, what then? Plenty of people are fired for supporting unions after all, it certainly happened where I work.

          What if I signed an initiative petition supporting the legalization of pot, or higher taxes for businesses, or I protested against healthcare reform? Maybe I’m pro-choice and I escort women to clinics. Or maybe I’m pro-life and I’m in front of the clinic holding a provocative sign. Maybe I simply participated in the wrong caucus during the primaries. These aren’t “crazy” beliefs, they’re fairly mainstream. None of these beliefs or activities has anything to do with you the employer or your hypothetical business, not in the slightest.

          Yes, maybe someone like you happens to be perfectly rational and can mentally separate a private opinion from performance at work. Grats, I’d love to work for you. But as an employee, how in the hell am I supposed to know that? I have weigh my right as a citizen to be politically active against the small chance that I will lose my ability to buy food and shelter, or provide healthcare for my family. See, it doesn’t matter that the chance is small because the penalty is so high!

          Why should I even have to consider this? Why can’t I simply be able to participate in my democracy without having to worry about retaliation at work if the boss finds out?

          1. Jamie*

            I do understand your point about the danger of irrational employers using political activism of any sort as a reason to terminate. And I agree that for all but the most extreme viewpoints that it would be unfair.

            But the Nazi example did illustrate how in protecting someone from getting fired because they worked for a mainstream political campaign it also protects the fringe whackjobs…and that can damage a business and the other employees. That’s why legislation is such a slippery slope – in trying to legislate good and moral behavior it can also tie and employers hands in letting the government decide who they can and can’t hire/fire.

            In college I held an executive board position at my school for College Republicans. Back in the day it was on my resume because I had no work experience and needed something. I’m sure there were interviews I didn’t get because of that, but I don’t think the answer would have been to force someone to hire me anyway.

            But that shows how legislating this wouldn’t work anyway – no company would ever say that was why they didn’t interview. I have an ethnic last name – perhaps I didn’t get interviews because of that at some point, or because I’m a woman…but the point is no one would ever come out and say that.

            It sucks and it’s not right – some employers make lousy decisions based on irrelevant factors. But they will do that anyway, law or no law.

      3. Mike*

        The defense industry is heavily Republican and people who lean left need to keep quiet or else they will find themselves on the street.

        I, unfortunately, did not know this at my last job and was ousted without cause. The issue was as much that the customer judged political affiliation as my employer so I really don’t know that I have any recourse.

        It went as far as the customer representative asking political affiliation in a project meeting.

  5. Jamie*

    One thing to keep in mind is that even though most of us (in the US) are employed at will – employers are not in the habit of firing people for the color of their shoes or the bumper stickers on their cars.

    It isn’t cost effective to fire people on a whim – businesses want to minimize turnover. The paperwork is a pain, so is the hiring process…and in some states like mine unemployment is always granted unless one is fired for gross misconduct. So if you’re fired for the wrong kind of shoes, or even being a massively incompetent, you’re getting approved for UI which means the employer’s rates go up.

    There are some shabby employers out there, and there are people who have been unfairly terminated (something can be unfair and morally objectionable without being illegal.) And that’s a shame – but to put legal protections against the few crappy companies out there would tie the hands of the majority of decent business owners; not to mention the power this would give those employees who feel entitled.

    I look at at-will employment as a cut sport. Once you’re hired you need to work to keep your place on the team or you can be replaced. My boss has a right to fire me if he feels like it – I can quit at any time for the same reason. But he doesn’t and I don’t because the relationship is mutually beneficial – should that change and one of us were no longer holding up our end of the deal then that will change.

    1. Kelly*

      As someone who was unfairly terminated, I would support some form of protection for employees. It would protect them from managers who have taken a personal dislike to them that is completely unrelated to their work performance.

      In the US, some groups have more protection than others. I’ve found in my experience that employers are more likely to keep an older worker than a younger worker because the older worker could sue for age discrimination. In two workplaces, several older workers should have been let go. One had two with terrible customer service skills but were lifers. At my last job, the person never should have been hired for the job. Her computer skills were not up to par for the job and her social skills didn’t make up for that.

  6. Kelly O*

    Okay Mike, I’ll bite.

    Let’s continue with the neo-nazi example – say your fine, upstanding employee who just happens to be a neo-nazi is part of an event outside office hours where he acts as spokesperson for this particular group.

    And then let’s say the local news station comes by to cover it, which is a reasonable thing for them to do. Your employee, in his capacity as spokesperson for this group, is on camera talking about something as innocuous as inviting people down for the barbecue to learn more about becoming a neo-nazi.

    Then, let’s say one of your top clients is at home, watching the news, and sees fine upstanding employee on the news. Even though that employee is on his own time, the client now sees that someone affiliated with a company with whom he spends a tremendous amount of money is associated with a group like that. At that point, the client has a choice – does it matter to him, and if it does matter, what does he do? Yes, there are some people who will say “business is separate, this is his private life, live and let live” and move on without a second thought.

    But there are a lot of people, whether they immediately think “oh my god what sort of people are programming my software/hiring my temps/auditing my books/whatever” or even if it plants a tiny seed of hesitation in their brains, who will take what happens with your employee in their private life and make a decision about your company.

    Take away the television thing. Say your neo-nazi employee (and I truly hate this example, but it’s what has been discussed) is at the grocery store. And normally his tattoos are covered by the standard-issue office blue button-down shirt and khakis. But you see this guy in a t-shirt and shorts at the grocery store and notice swastikas (or whatever) all over his arms and legs. Or your client does. Or a potential client does. And that person comes in your office on Monday to talk about a project, sees the person from the grocery store, and starts to wonder.

    Believe me, I have a few personal beliefs that would probably rock my current employer’s world. But, I’m not out broadcasting them. I’m not actively advocating for some things I have a different personal belief about, or wearing a t-shirt promoting it, or whatever. Not because I don’t feel free to do it, but because I recognize that not everyone feels that way, so I limit my advocacy to things that don’t pin a label on me that could hamper my career.

    It’s a choice we all have to make, and be willing to deal with the consequences of that choice.

    1. Mike C.*

      No, let’s not continue with the neo-nazi example because I’ve said over and over again that’s it’s an incredibly stupid example that doesn’t match any situation that any of us will reasonably encounter in real life. If you hate it so much, discuss one of the many others I mentioned. Replace nazi was communist or socialist or tea party activist or civil rights proponent or pot smoker. Or a union supporter, there’s the elephant in the room right there. But no, you folks won’t bother this because it’s easy to argue against a big scary guy with terrible beliefs.

      How many times do I have to say this? Why in the hell won’t you or anyone else discuss the issue in terms that we might actually deal with in real life? Am I the only person who doesn’t work with a bunch of skinheads?

      And please quit being so coy. The reason you aren’t advocating for your beliefs is because you’re afraid that the miniscule impact it may have on the appearance of profit to your boss will reflect negatively on your job. You say so yourself with your fear of a label.

      Don’t give me this “we all need to be willing to deal with the consequences of our actions”. It’s pure bullshit. Simply because an artificial consequence may follow an action does not mean that the consequence is just nor necessary.

      1. Joe*

        Mike,

        I think that you’re right to say that the neo-Nazi situation isn’t one that’s ever going to come up, but I still think it’s a good example to discuss, precisely because it is so extreme. So if we can defend the neo-Nazi situation, then the tea partier, the communist, the union support, and all the rest obviously follow.

        And I think we can defend the neo-Nazi situation, and fairly easily. The key point here is that you should not be allowed to fire someone for political activity which is completely outside the realm of their work. For someone who interfaces with clients, part of their job responsibility could be to maintain an acceptable public persona, precisely because of the example that Kelly O raises: a client will not want to work with someone whom they know to have abhorrent beliefs. So in that case, marching at a neo-Nazi rally would be directly in conflict with their job duties. (And so would supposed lesser offenses, like going to a tea party rally or a communist meeting or a union rally.) If the job requirements explicitly state that you need to avoid controversial public activity, then those activities are a violation. On the other hand, if you sit in an office in the back and don’t meet external clients, and if you get your work done and work well with your coworkers, and fulfill all of the responsibilities of your job, then the fact that you go to a neo-Nazi rally (or a tea party rally or a union rally) on the weekend should not be a factor in my deciding to keep you on staff. It does not impact your work performance, it shouldn’t be any of my business.

  7. Anonymous*

    One question about the whole ‘at-will’ employment thing: given how important that section of an employment agreement is to an employer, why do they get so upset when an employee choses to exercise it?

    1. Ask a Manager* Post author

      That’s the great mystery. Employers are comfortable firing without notice but angry when employees quit without notice. I think it comes down to convention, honestly, and “how it’s always been done.”

      (That said, I think this is a legit viewpoint when the employer is providing the fired employee with severance pay, which cancels out the financial impact of the lack of notice. It’s when there’s no severance that it becomes a double standard.)

      1. Anonymous*

        That said, I think this is a legit viewpoint when the employer is providing the fired employee with severance pay, which cancels out the financial impact of the lack of notice
        If the employer is going to do that, why not put it in the agreement (with some ‘for cause’ exclusion)? After all, those same agreements invariably have something along the lines of ‘no other agreement, implicit or explicit, verbal, written or etched in stone can pre-empt this, except for a contract written in the blood of a C-level executive.’ Makes it plain that anything in the employee handbook about severance and notice counts for nothing.

  8. Charles*

    Sorry for bringing up the neo-nazi “straw-man.” I chose that because I thought it was an example that everyone (or at least everyone who is reasonable) would see it as an example of a belief that all would disagree with and understand the problem a company would have in employing that person with such hateful beliefs – even if they do not express such beliefs or act upon them in the work setting. (I really didn’t think that it was such a difficult concept, really I didn’t)

    Calling it a strawman doesn’t change the fact that there are times when an employer would like to not hire someone for something that they disagree with. Passing a law which forces the employer to hire someone against their will is not good; and it is simply over-reaching government.

    Yes, there are times when employers act unfairly against employees; just as there are times when employes don’t act right either. And while it is more often than not the employer who has more power, passing a law to change that doesn’t always work.

    Laws have consequences, often those consequences are unintended. There are many reports floating around the web which show that the ADA (Americans with disabilities Act) is actually making it harder for those with disabilities to get work. The reason for this is that employers realize that if they do hire someone with a disability who doesn’t work out the firing of that employee could become a legal issue more than if they hire and fire someone without that legal protection.

    As a hiring manager, if I have 2 candidates who are alike is every other way and both are very good candidates, should I risk hiring the one who will be a bigger problem to fire is she doesn’t work out? or should I hire the one who will be easier to fire if she doesn’t work out?

    1. Ask a Manager* Post author

      I agree with a lot of what Charles says here. Let’s say I google a candidate and discover that he maintains a blog where he rants about the president in a vaguely racially-tinged way. Or rants about various conspiracy theories, alleging, for instance, that the government knew about 9/11 ahead of time. Or makes comments about the war in Afghanistan that cross over into outright expressions of hostility against the people of that country. (These are all real examples I’ve seen, by the way.) Those are all going to make me concerned about the candidate’s judgement, level-headedness, and intelligence, as well as whether he’ll be a de-stabilizing/unpleasant force in the office, and I would not hire the person.

      Employers should be allowed to make those calls. However, that does means that the door is left open for employers to fire people for much more moderate politics too, if they want to, although it’s pretty rare for that to happen (although it does indeed happen).

      I’ll also note that I’m personally someone who has worked in political advocacy my whole career, and I’m quite sure that there are employers who would choose not to interview or hire me because they didn’t like some of the organizations I have on my resume (a marijuana policy reform group, as one example), and that’s their prerogative.

      1. Mike C.*

        The thing is, it makes perfect sense to discriminate against personal politics when the issue being discriminated against directly affects the job. This is a well established standard in laws affecting equal opportunity hiring and disability after all.

        But when people start talking about how they have to keep their moderate opinions to themselves for fear of a label, that goes way too far.

        So long as the political belief has no effect on the job, it shouldn’t matter for the job. That’s why I’m so baffled about this nazi example because I have a difficult time understanding how such an individual would be able to keep it out of the workplace to begin with. Many here seem to think I’m advocating something I’m clearly not.

        1. Ask a Manager* Post author

          What do you think about the examples I gave above? Those issues arguably would have no effect on the job, but I still wouldn’t want to hire them.

          1. Jamie*

            I would argue that the issues you brought up would have an impact on most jobs and that not hiring them is protecting the business. Because all but the most mechanized jobs require sound judgment and level-headedness.

            Anyone publicly espousing points of view which are hateful or biased against groups of people can create a liability for the company that could have very real consequences.

            For all the talk about rights we don’t have, there was also mention of the legal protections we do have – which is not to face workplace discrimination based on our race, gender, religion, etc.

            So if you hire someone who blog about how women shouldn’t be in the workforce and is the public face of chauvinism for some group and I have a problem with him at work. Even if my problem with him is that I’m incompetent and horrible at my job, you gave me a much stronger case to win a discrimination lawsuit, even if it never took place. The perception taints the facts in this case.

            A manager has the responsibility to minimize corporate liability – to do otherwise can have serious financial repercussions.

          2. KellyK*

            I think the issues you mentioned do have an effect on the job. If someone holds a racist viewpoint, you can’t trust them not to discriminate, and since employers are prohibited from discriminating against protected classes, it represents a real risk. I also think that most of the blogging that would give cause for concern goes beyond the politics. If the person is ranting incoherently or obnoxiously, for example, or picking fights on other people’s blogs, that would be a problem in the workplace even if you agreed with their ideology.

            I think that for freedom of speech to be meaningful, there should be some protections against getting fired for your political affiliation. How those would work or where that line would be drawn, I don’t know. Perhaps it could be less a matter of “You’re not allowed to fire someone for their political beliefs” and more a matter of “Political beliefs aren’t cause, and anyone let go for them is eligible for unemployment.”

          3. Mike C.*

            Ok, I’m beginning to better understand this viewpoint, where you are being proactive and I’m being reactive. Perhaps then there should be a different approach, perhaps explicitly protecting employees while performing specific activities such as donating to registered political and advocacy groups, participating in political caucuses or publicly endorsing registered or likely candidates on your own time/property/etc.

            An exemption should be granted for positions where these would actually interfere with the job at hand, like the positions you’ve held in the past. I think this draws a clean line between wanting to participate in politics and not wanting to hire a risky individual.

            Here’s the thing that is bothering me about the discussion though. I understand the responsibility for management to take care of liabilities, and it’s easy to see our skinhead friend is a clear risk for moral and economic reasons. What about other things that may hamper the economic health of the company I work for? Say I want to advocated for stricter safety regulations or I feel certain tax loopholes should be closed. Sure a business has the responsibility to protect themselves from the cost of a harassment lawsuit, but should they have the ability to protect themselves from the cost of other things by punitively firing those who advocate for a particular political policy?

            For Jamie:

            Please understand that I love those rights we have, and I wish they were expanded. I wish we had clear laws that protected employees from having to work in a hostile environment – I don’t think people should have to choose between their dignity and a paycheck.

          4. Joe*

            AAM, I think that your examples miss the point. They are all examples of someone behaving in an unprofessional manner, and serve as evidence that someone would be unstable/difficult in the office. But I feel that the question here should be about _beliefs_, rather than the method of expressing those beliefs. If you post on your blog, “I think that whites are superior to blacks”, that’s very different than posting, “Whites are superior to blacks, and we need to round up all them ni***rs, rape the women, and shoot the men!” The former is an example of an unpopular political belief, the latter is an example of a violent person prone to irrational outbursts. I believe that the former should be protected from discrimination, while the latter should not.

          5. Ask a Manager* Post author

            Really? I wouldn’t hire someone who argued that one race was superior to another, and I wouldn’t ask my other staff work with them. I think it’s reasonable for employers to make judgments that someone is (a) dumb and (b) a jerk based on espousing those views, and thus not hire them.

          6. Joe*

            Someone who said that in an interview, I wouldn’t hire. Someone who said that in the office, I would fire. But someone who says that on their own time, in a context completely divorced from their work (and see my earlier comment about some jobs involving maintaining an acceptable public profile), I don’t think it’s my business. I don’t have a moral right or obligation to police the personal beliefs of my employees, as long as those beliefs do not impact their work (including relationships with coworkers, work environment, etc.).

            (O.T. How come I can’t reply to your latest comment, AAM? Is there a limit to how deep you can nest replies? I had to reply to the previous comment again instead.)

          7. Joe*

            (And now I’m wishing there were an edit command, because I’m having to reply again instead of tacking this additional thought on to my previous comment.)

            Consider this case: Suppose you hire someone, they work for you for a couple of years, and you’re happy with their work. They get along acceptably with their coworkers, they get their job done, you have no reason to be dissatisfied with their performance in the office. Then you find out one day that this person is a white supremacist, and has made posts to web sites indicating that they believe whites to be the superior race. Would you feel then that you needed to fire this person? They are obviously able to keep this belief separated from their professional environment. They have not had any problems with coworkers because of it. They keep their beliefs to themselves at work, to avoid controversy. Why would you want to fire someone who has been a model employee?

            And now, if you think that in this case, you might not want to fire them, then is it possible that even if you knew ahead of time, you might still have wanted to hire them?

          8. Ask a Manager* Post author

            You’re right that it gets murkier after they’ve already been hired. I guess I look at it like this: I’m Jewish and I would be really uncomfortable working with someone who kept a blog attacking Jews, no matter how professional they were at work. So I wouldn’t want to ask my black/Latino/muslim/whatever employees to work with someone who vocalized hateful views toward them outside of work.

            I realize that this is a slippery slope, because you can’t allow employers to fire based on political view A but not on political view B — it’s all or nothing. Which means if we let me fire someone for speech I find really offensive, we also need to let employers fire someone for, say, advocating gay marriage or abortion rights. That’s the nature of government regulations — they can’t favor certain types of speech over others. You either allow all of it or none. So therefore I come down on the side of deferring to private employers to make their own business decisions without the government dictating to them … realizing that there will be occasional outcomes that I don’t like.

            (It’s also worth noting though that it’s very rare for an employer to fire someone for their political views. Not non-existent, but rare.)

            (And last, Joe, yes, it’ll only let you nest comments a certain number of levels deep.)

          9. Natalie*

            For what it’s worth, your non-racist white employees don’t want to work with a racist white employee either!

  9. Shawn*

    the fact is you could take out political views and substitute the color of your shirt, the brand of shoes you wear, your hobbies, or you being the worst player on the company softball team. you could, theoretically, be fired for these reasons under the premise of at-will. oh the horror! these sorts of things rarely happen, but you can always find examples of employers behaving badly. yes, these things can affect people.

    however, you can’t legislate away stupidity. it’s generally stupid, for a variety of reasons, to terminate someone without a legitimate business reason. can you do it? yes. should you do it? no. does it happen? extremely rarely. this isn’t an argument even worth having. this is not a prevalent problem.

    also, let’s not confuse common etiquette with “the law.” regulations define things that are illegal to do (firing someone for being black). that doesn’t mean everything else is a good idea (firing someone for liking green shirts, employees giving no notice, employers terminating resigning employees on the spot with no pay). just because it’s legal doesn’t mean there aren’t repercussions (there usually are).

    1. Mike C.*

      “you could, theoretically, be fired for these reasons under the premise of at-will”

      And he finds the real issue – the nature of at will employment in the United States. Other first world nations take one of two approaches – either require some combinations of a performance improvement plan/a notice period before termination/severance for immediate termination without cause or they have a large, generous social safety net which includes healthcare. We don’t do that here, and you need to understand this to understand the reality of the threat of being fired for “no reason” despite being a productive and profitable employee.

      Finally, you can legislate away stupidity, especially when it causes undue harm for others. It’s stupid to dispose of toxic chemicals into the ditch outside and it’s against the law. It’s stupid to force employees to work without proper protection, and it’s against the law. See? Tomorrow we could say that firing someone for contributing to a political party is illegal as well. It’s really not that hard.

      1. Shawn*

        you missed my points.

        first, you seem to be all up in arms over the entire idea of at-will employment. there really isn’t any reason to be. the percentage of terminations for non-work related reasons (at least outwardly) are extremely low. this almost never happens. really.

        secondly, you really can’t completely legislate stupidity away. the company in that article you posted is obviously stupid. make it illegal to fire an employee due to their political affiliation. do you think the outcome would have changed? i doubt it. they would just find some other reason.

        you act like the sky is falling when it isn’t.

        1. Ask a Manager* Post author

          You know, if an employer wants to find a way to fire someone, they can find it. If you’re motivated to, you can come up with a (legal) reason to fire pretty much anyone you want, even if they’re a star performer. So coming up with new regulations wouldn’t have a huge impact on employers who want to fire for non-business reasons, but it would have an impact on “good” employers who fire for business reasons, by creating even more legal landmines.

          1. Natalie*

            I’m not sure where I fall on Mike’s positions, but I don’t think your argument really holds water. One could say the exact same thing about the Civil Rights Act – and in fact, I’ve heard people say the exact same thing about the Civil Rights Act.

  10. Joe*

    As a corollary to the discussion about Nazis, unstable people, etc., a question occurs to me: If someone is protected from being fired for XYZ reason, is that person also necessarily protected from not being hired for that reason? Should they be? Thinking about AAM’s response about Googling potential employees made me wonder about this, along with Charles’s comments about unexpected consequences of ADA. I don’t know what the answer to either question is. IANAL, so I don’t know if legal protections are the same in both cases. And while I feel that morally, we should protect those same classes in both situations, there is an extent to which hiring someone should engender a certain amount of responsibility, so maybe it should be harder to fire someone than to not hire them in the first place.

    1. Ask a Manager* Post author

      Yes, the protections are the same in both cases. You can’t make an employment decision about someone (whether it’s to hire or not, or to fire or not) that is based on their membership in a protected class.

  11. michelle*

    This article seemed to apply just to private companies. What about those of us who work in the public sector?

    1. Ask a Manager* Post author

      Government employees are subject to the same *laws*, but the government has its own set of *policies* for managing employees that’s way, way more onerous. Which is why it often takes literally a year or more to fire someone in the government.

  12. Ask a Manager* Post author

    One last thing to point out is that “freedom of speech” refers to the government not being able to restrict your speech, not to private employers or other private entities. It protects you from government censorship.

    1. KellyK*

      Absolutely, and I should’ve been more clear in my “for freedom of speech to be meaningful” comment. I realize that freedom of speech as defined by the constitution is limited only to the government. My point was that a freedom you can’t use if you want to continue buying food and paying your mortgage isn’t worth a lot in practical terms. (Fortunately, most companies aren’t firing people willy-nilly for political viewpoints, but I still find the fact that they can troubling.)

  13. Charles*

    very interesting discussion all, to which I’ll add this:

    One woman’s moderate is another woman’s extreme;
    One woman’s reasonableness is another woman’s unreasonableness.

    So, whoever writes the laws will believe that she is being reasonable; she who disagrees with that law will see it as unreasonable.

    A law protecting her job, despite her viewpoint, is moderate; a law that destroys her “freedom of association” is extreme.

    Are we all clear now?

  14. Kelly O*

    The whole discussion has been rather interesting, to say the very least.

    I guess I’ve never really given at-will employment that much of a thought, since it’s reasonably clear going in what you’re getting into. Or perhaps I’ve been fortunate to work for companies that did not gloss over that, or just cynical and not expecting a guarantee.

    I will say this in response to something that was said earlier. My decisions to remain discrete about the political groups to which I contribute is a personal one, and I know that not everyone feels that way about causes that are near and dear to them. While I may keep a couple of things rather close to my chest, I feel okay in letting people know I support the American Cancer Society and the Juvenile Diabetes Association. Most employers wouldn’t have an issue with my support of those causes, and if they do and it affects their hiring decision, I feel like they’ve done me a favor by helping me eliminate a workplace I probably wouldn’t be comfortable in anyway.

    I think that’s the thing that is not really computing for me. Why on earth would you want to work for a company whose culture is such that your involvement in whatever would prevent them from hiring you, especially when it’s something very near and dear to you, or something about which you feel passionately? If you’re a staunch conservative, and advocate against abortion, would you want to work for a company that donates to Planned Parenthood? Or vice-versa. If you’re a very liberal person and think that gay marriage is a no-brainer, would you want to work for someone who supports anti-gay individuals or groups?

    I am a square peg in the round hold world of my office. When we moved to our tiny town, I wasn’t surprised to figure that out. Now that we’re in a larger city, I’m working to find a place to work that not only pays better and provides better benefits, but also one that is more welcoming to a square peg. I’m not even looking for a square hole, just an understanding of different pegs, without someone trying to sand down my edges (for lack of a better analogy.)

    And I know, this won’t really matter to the people who can’t seem to see past their own viewpoint, or who are convinced they’re right and everyone else is wrong.

    1. Charles*

      Square pegs, round holes, and, especially “sanding down the edges” – I love that analogy!

      P.S. – I remember a few decades ago I interviewed with Planned Parenthood – and, yes, they actually did ask me about my viewpoints on abortion. While I think that they could have phrased the question better (such as “would you fully support all of our organization’s mission; including legalized abortion?” instead of “do you believe in abortion?”) I completely understood why they were asking. No organization should want (or be forced) to hire someone who did NOT support their mission.

    2. Joe*

      Kelly,

      You ask a good question: why would you want to work for a company that might fire you for political beliefs you hold dear? I can think of a lot of reasons. I work in non-profit, for a cause I believe in. I think that the organization I work for is one of the best and most effective in this field, and that I would not be able to have as big and as positive an impact if I worked elsewhere. But just because we agree about the importance of Topic X doesn’t mean we’ll agree on all topics. The org I belong to has a strong policy against taking positions on other issues precisely for this reason, but if they didn’t have that policy, I can easily see how we might differ on certain other subjects. It would be hard to have to choose between this cause I believe in and other things I hold dear as well, if it came to that.

      And another example, dealing with companies I don’t work for, and have no direct connection to, but know about and follow the news about. There is a company, let’s call it Company X. They are a for-profit company, but their focus is in a particular domain which has strong ties to advocacy of a certain issue, let’s call it Issue K. People who work there are more likely to have a liberal bent in their politics, simply because their focus on Issue K is more attractive, in general, to liberals than conservatives. Now, Company X was recently acquired by Company Y, a well-known multinational corporation which has an unabashed conservative bent. Many of the companies controlled by Company Y are conservative advocates, and the company as a whole advances conservative policies. If you worked for Company X, and still believe in the work that Company X is doing, would you want to be at risk of being fired because some overlord in Company Y disagrees with some of your politics?

    3. Dean*

      Why would someone work at a job they ideologically oppose? There have been some good replies given, but they miss a real simple one.

      When you’ve been out of work for months because your last job required you to drive, did not pay enough to cover the car maintenance, and so your quitting made you ineligible for unemployment, your savings will run out and you’d take a part time job skinning baby seals to avoid getting kicked out on the street.

  15. Tami*

    True, in an at-will state, you can be fired for any reason or no reason. However, just because you can’t sue for wrongful termination, doesn’t mean that you have no rights. In almost every state I can think of, if the employer terminates your employment for anything other than documented good cause, you are still entitled to unemployment benefits. In most cases, if you collect benefits that means that the employer’s unemployment taxes also go up in direct correlation to that. So, most employers don’t just fire people willy-nilly even in an at-will state simply because it will cost them in one way or another…reputation, taxes, etc.

  16. Anonymous*

    My husbands manager is threatening to fire him bcuz he couldn’t come in at the last minute (as I was already at my job when they called to tell him that they just changed the schedule that very day and need him to come right then) is that legal? Cuz it sounds like a load of BS to me….

  17. Scott Enk*

    Dear Ms. Green, Kelly O, and All–

    Many Americans, especially in today’s deliberately job-scarce economy, are now hesitant to take part in *any* form of political or social activism–blogging, writing a letter to a newspaper, calling a radio talk show, posting on the Internet, taking part in a march or a rally–for fear that their employer might somehow frown on such actions.

    As National Workrights Institute (NWI) legal director Jeremy Gruber has noted, this fear and the actions of a small but powerfully fear-inspiring employers pose grave dangers for our society, our freedoms, and for each of us. As he put it, employers that delve into our lives outside of work “are making decisions based on information not submitted by the employee or references. It is wholly unrelated to the employment relationship.”

    What’s more, Gruber added, “The idea that when you hire someone, you should be able to look at every aspect of their personal life is completely at odds of how a democratic society should operate. It has huge consequences for freedom in this country, when people are afraid or are changing their behavior because of what a potential future employer might say or do.”

    Any society where this is so is not a truly free society.

    Even though actual instances of such discrimination are, fortunately, quite rare, the fact they they can and do happen serve as a major brake against free speech in modern America, including, most ironically, against working people advocating for the very reforms we need to end such abuse and other injustices against American workers and America’s middle class.

    This sleazy practice, too, while disturbing and reprehensible, is in many states, my own state of Wisconsin included, still apparently legal. This, too, must be stopped through legislation like California’s, which specifically forbids employers from dictating or attempting to dictate employees’ political activity.

    Better yet, every state and Congress should adopt legislation, as a few states (such as North Dakota) have, protecting the right of employees and job applicants to engage in any lawful off-hours, off-premises activities they choose.

    Generally, *such activities are none of an employer’s business unless they pose an actual and substantial conflict of interest or otherwise materially and substantially impair one’s ability to do one’s job*. Mere fear that they *might*, or mere dislike of or disagreement with an employee’s or job applicant’s activities or views isn’t enough. And employers must not be allowed to claim vague “business necessity” as justification for discrimination. Yes, as much as I abhor neo-Nazism, I would defend the right of an employee who expressed its views off the job to do so without fear of employment discrimination, as long as s/he did not bring them into the workplace or let them affect his/her *on-the-job* performance. Otherwise, employers, for example, could get away with firing or refusing to hire pro-racial equality people in a racist community, or people who spoke out for keeping church and state separate in a conservative religious community–a dangerous “slippery slope.” Freedom is indivisible, and it is meaningless unless it applies to us all.

    It is time we take back our lives outside of work–before we are all forced to live at the mercy of abusive employers in a nationwide, high-tech Pottersville, a modern version of the company town right out of George Orwell’s _1984_ or Ira Levin’s Stepford, one that controls not only our work but our other actions, our minds, and our souls “24/7.”

    It is not about the bottom line; it’s about power and control. Let’s reclaim our rights.

    So urge your state and federal lawmakers to support legislation protecting the rights of employees and job applicants to engage in lawful off-hours, off-employer-premises activities without fear of employment discrimination.

    We. both individually *and, importantly, in groups*, must also, by any and all lawful means available and necessary, publicly expose, confront, challenge, embarrass, pressure, and otherwise curb out-of-control employers that violate your and my most basic rights as workers and as human beings.

    Let’s say to employers: Our skills, attention, and loyalty are yours eight hours a day, 40 hours a week; the rest of our lives belong to us, and to us alone. For not only ourselves but our fellow citizens and future generations, we are taking back our lives, our privacy, and our rights.

    For your rights and mine,

    Scott Enk
    senk8105@sbcglobal.net

  18. Anonymous*

    During a recent company sponsored team dinner a senior manager went around the table and asked every employee to share their politcal offiliation i.e. democrat, republican, independent. Then the next day during team presentations this senior manager and her VP quipped about their ability to identify political party based upon presentation style. I always thought that was a human rights violation? Not so? We’re talking a Fortune 50 company here.

    1. Ask a Manager* Post author

      There’s only a small number of jurisdictions where discrimination based on political affiliation is illegal. (And this doesn’t even sound like discrimination, just a highly inappropriate and stupid invasion of privacy. I would have seriously considered refusing to play along.)

  19. Robert*

    New way to get rid of old folks.
    I worked for a hospital for 30+ years. I have never been a problem and consider myself an expert in my field. I know they want to get rid of us old farts but cant just fire us because of age. However they found a work around. We now must pass a fitness test. One of the requriements is to walk up 6 flights of stairs.
    Bingo. My knees will no longer let me do that. So….they win.

  20. Dylan*

    I work target overnights in New York and we get a 30 minute paid break and a 45 minute unpaid break for our 9 hour shift. We are not allowed to leave the building during those breaks. Do they have the legal right to do that? This is a concern for me because I am a smoker and its really frustrating!

    1. Ask a Manager* Post author

      They definitely can require you not to leave the premises during the paid break. For the unpaid break, I’m not sure; you’d need to consult NY law or a lawyer.

  21. Jaime*

    I live in Montana, worked at a State Agency Liquor Store, and had to resign because my employer CONSTANTLY smoked inside the building and in our shared, very small office.
    Unemployment Insurance is not being paid to me (not denied, just left in limbo for 10 weeks now). I feel like one State Agency is covering for the illegal actions of another.
    Is 13 months of being forced to breathe her smoke not a valid reason to resign?

    1. Anonymous*

      I work at a fridlys restaurant for 7 years. My general managers daughter was a manger and left a year ago to work elsewhere. She just asked for her job back but not as a manager but as a server. He not only hired her back i the slowest time of the year he took all of the other employees hours away from us and gave them to his daughter. Is this legal?

  22. Anonymous*

    If you have an employee who reads for weeks the post of if you dont work and keep busy hours will be cut and they come in couple weeks later and are down to two days of work and verbally insult (terrible launguage and name calling) the manager to other employees and the other employees sign a form stating that said employee did this and said employee is fired can the employee recieve unemployment in texas.

    1. Anonymous*

      No the employee based on the information was fired for relavent reason no I do not see them being approved for unemploment.

  23. Paul*

    This has happened to me on more than one occasion. I work at McDonald’s. Last night I clocked out at 1:19 am, my closing supervisor would not unlock the doors for me to leave until her closing duties were complete. I was not able to leave work until after 1:40 am. Should I be paid for having to wait for her?

  24. Mia*

    I work at a restaurant that is primarily outside dining/bar, which allows smoking. Employees are strictly prohibited from smoking any where on property in or out of uniform which Im ok with. Management has just told us that we are not allowed to smoke on property now EVEN when we are off the clock, or worse yet on our days off. We must now go down the block to smoke. Therefore when I go up there on my days off as a paying customer for few drinks Im not allowed to smoke, when every other paying customer can. Is this legal?

    1. Anonymous*

      Yes there has to be a alert meaning sign window cling something showing that there are cameras in use on premises

  25. Anita*

    I don’t want to work in the afternoon shift but my supervisor is threatening me to or else he’ll fire me can he actually really do that?

  26. Anonymous*

    my husband and I worked for a small shop , our boss didn’t like us and we knew it but I said to my husband its a shop dont let it bother you. but they tampered with my time card . and only got paid half of what we were suppose to get. we are beside ourselves.

  27. Anonymous*

    I don’t know what too do my manager keeps pin pointing me…. She rolls her eyes at me and tell me task to do (I don’t mind working I love working) but she has such an attitude with me! when I ask her Why does she have such an attitude with me she snaps at me and sends me home. Last night I was working and she called and was being rude with me and I didn’t answer her the way that she want me to she told me to clock out and go home.(She was talking about personal business while I was on the clock)… She will not give me the chain of command so i can talk to some one above her. She is the only one that I work with that has a problem with me!

  28. Ms lady*

    If a company fires a black man for a reason and let’s a white man keep his job for the same reason is the a discrimination termination and can u sue the company?

  29. concerned american*

    Our plant has been around for maybe 30 years, and this company ( cenveo) swoops in and buys us, then 8 months later decides to close the doors after , we signed a 3 year deal. Then on top of all that , they decide to cancel all vacations and tell employees they can`t have off till they close the doors, and they are not giving any kind of severance package or anything. I think this is cold and not human. some people have given 30 yrs of their lives just to be thrown under the bus by this heartless company. we were their biggest rival now they get to close us down. I don`t know how they can sleep at night after all this.

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