We have an interesting item from the National Labor Relations Board this week addressing a point of workplace culture that I suspect has grown quite sore for many businesses in 2020. How much discretion do you have to fire employees for their political views?
The NLRB published an advice memo on Monday about a union in Maryland that represents, among others, government employees in Montgomery County. The union had fired a worker who was also a state representative, and who had testified in favor of police reform legislation there. Since the union represents police officers, one of its own testifying in favor of more accountability for police misconduct was not a good look. Out he went.
The NLRB memo doesn’t identify the employee, but the allegations bear a striking resemblance to the case of Maryland state Rep. Gabriel Acevero. He claims his legislative work on police accountability reform got him fired from United Food & Commercial Workers 1994, the union that represents Montgomery County law enforcement; and he filed the complaint to the NLRB.
Moreover, UFCW 1994 confirms that yes, it fired Acevero earlier this year. In a New York Times article, the union president said the firing was more about Acevero’s contentious attitude during a meeting to discuss the situation, but added that Acevero’s legislative work complicated “our obligation to represent our members.”
Fights like this intrigue me because we live in such a highly divisive political climate right now. In particular, extreme supporters of President Trump flirt with violent imagery and outright violent acts. Let’s remember the likes of Caesar Sayoc, a Trump supporter who pleaded guilty to sending pipe bombs to the media; or Christopher Hasson, a Coast Guard officer, white supremacist, and avid Trump supporter who pleaded guilty earlier this year to plotting terror attacks against Democratic political figures.
I was always intrigued by Sayoc’s van, plastered with extremist Trump political propaganda. If an employee pulled into your office parking lot with a van like that, could you fire him (and it’s always a him) on those grounds alone? What if employees said they feared for their safety working next to someone endorsing such views? What if black and brown employees, a protected class, raised that complaint?
So any time a regulator talks about a worker’s political leanings and employment protections or the lack thereof, I take notice.
Acevero Out of Luck
Alas for Acevero, the NLRB memo was not on his side. Because his work as a state rep and his testimony for police reform had no connection to any employment-related matters at the union, Acevero couldn’t claim protections under the National Labor Relations Act. As the NLRB memo said, “The test for protection, at bottom, requires the presence of a nexus between what is being advocated and employee terms and conditions of employment.”
Then came a longer analysis of how Acevero’s legislative work didn’t meet that test:
The evidence establishes that [Acevero’s] advocacy for police reform — in capacity as a Maryland state delegate testifying before a local county council and otherwise — had nothing to do with employment with the employer, as a union representative working for a labor organization representing, among others, uniformed police officers. Nor has [Acevero] identified its connection to any employment concern of any employee. Instead, the evidence shows that [Acevero] acted in the interest of the community at large and in furtherance of his own political agenda when advocating for reforms that might bring about greater transparency and accountability in law enforcement.
In theory Acevero could have pressed his complaint further, but after that memo he withdrew his complaint.
I do see how Acevero’s support for police reform could conflict with his duties at a union representing police officers. Still, those political views had nothing to do with his specific workplace: nothing to do with wages, hours worked, or other conditions of employment that are protected under the National Labor Relations Act. So his political views brought him no protection from getting fired.
Other Issues for Political Views
Acevero’s predicament isn’t quite like the scenario I outlined above with Sayoc and his Trump-mobile van; or employees spouting extremist views (of any political stripe) on social media. That is, friction over a political issue like police accountability could arise at any time. The 2020 elections, in contrast, are agitating more people to proclaim more extreme views, more loudly. So how should companies handle that?
The good news is that federal law is generally on companies’ side. Political views are not a protected class, so yes — you can fire (or decline to hire) someone simply because you don’t like their political views.
Employers can also ban political discussions at work, or displays of political materials at the workplace. So you could tell an employee driving a van with Joe Biden in gunsight crosshairs on the side, or Trump under an “Impeach Now!” banner, not to park it in the company lot.
The challenge will be to understand when a discussion about politics also touches on workplace issues such as wages or health and safety conditions, which are protected under the NLRA. An employee with a t-shirt that has a QAnon logo on the front? You could tell him to remove it. Another with Bernie Sanders and “Fight for $15!” on the front while management is negotiating with workers over pay raises? More problematic.
I’m also intrigued by state laws that often do protect employees based upon political views. (I found one website that offers a nifty state-by-state summary if you’re looking to review your policies on workplace political statements.) For example, in New Mexico an employer cannot fire or threaten an employee because of that person’s political views.
So let’s say you’re a business in Albuquerque, with your very own Caesar Sayoc-wannabe employee. He parks his van on the company lot, covered in posters of Biden in crosshairs, undocumented immigrants facing armed militias at the border, Trump walking on water — you know, like a visual depiction of a Fox News show. Then your black and Latino employees complain that they feel unsafe working next to this person.
Under New Mexico state law, you can’t fire that employee. Under federal labor law, you have a protected class demanding a safe work environment as promised under the National Labor Relations Act. What do you do?
If anyone has a good answer, drop me a line at [email protected].
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