Can I 86 an employee who acts like a number 7?

Q.     I am a general contractor, and I just finished a building project for a local non-profit veterans group that is going to provide treatment for those who served overseas and are suffering from PTSD. My workers and I have been invited to attend the grand opening and ribbon cutting ceremony.  Because I am proud of the building, the veterans and my employees, I am requiring that my employees attend the grand opening (and of course, paying them to do so).   I am concerned that one or two of my employees will seize on the recent controversy surrounding San Francisco 49ers backup quarterback, Collin Kapernick, and embraced by other professional athletes, and refuse to stand for the national anthem.  In my opinion, this would be insulting to the veterans that the building was built to support and alienate potential developers from using my company in the future.  Can I require my employees to stand for the national anthem?  Can I terminate an employee for not standing up?

A.     I think at some point in the near future, the United States Supreme Court will answer this query for us.  But, in the meantime, an employer must tread carefully.  If an employee is terminated for refusing to observe the national anthem, he might be able to argue that the termination was unlawful.  However, it is unclear how those arguments would be received by U.S. courts at this time.

The most obvious argument would be driven by Labor Code Sections 1101 and 1102.  Labor Code section 1101 states:

“No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employee.”

Labor Code section 1102 states:

“No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”

Another employee argument may be made under the National Labor Relations Act (“NLRA”).  The NLRA gives employees the right to act together to try to improve their pay and working conditions, with or without a union.  If standing for the national anthem is determined to be a “working condition,” then employees could argue that refusing to stand is a protected “concerted activity.”

The interesting component of Labor Code Sections 1101 and 1102 is that both hinge on the term “political,” while the NLRA hinges on the term “working condition.”  Both terms are difficult to define.   Extreme positions like advocating to over-throw the government have been specifically interpreted not to be “political.”  Such an interpretation may protect an employer that terminates employees that, for example, support jihadist ideologies. But, what about an extreme domestic movement that advocates ignoring all law enforcement directions and refusing to acknowledge their authority?

Another issue to consider is whether an employee can limit the time and place of expression without infringing on an employee’s rights.  What if, instead of kneeling down during the national anthem, an employee wears a t-shirt stating “Make America Great Again” or “I’m with Her”?  Or, instead of  quietly kneeling, the employee was actually disruptive?

Employees do not have a Constitutional right to free speech or freedom of expression at work. The Constitution’s right to free speech only applies when the government is trying to restrict it. Even then, it’s not absolute. So employers are generally free to restrict employee speech, at least while they are at work.  However, an employees’ protected speech under the NLRA is an exception to an employer’s broad rights to restrict both speech and expression at work. Section 7 of the NLRA gives employees the right to discuss wages hours and working conditions and organizing a union.

Furthermore, a private employer should consider the implication of anti-discrimination laws. An employer should ask himself: Is this employee’s speech being restricted or punished because the employee is expressing religious or other beliefs that are different from the employer’s or from co-workers? Are employees of some religions or national origins allowed to express themselves regarding religion or national origin, but not others?

These are all delicate issues in a confusing time, which can make a simple grand opening and ribbon cutting ceremony a powder keg for an employer.

Can employees like the Uber-attacking doctor be fired?

Q:     Recently, a Florida doctor made headlines when a video went viral of her boozy tantrum attacking her Uber driver on a night out.[1]  The doctor has profusely apologized for her conduct and blames a broken heart for the incident.  Unfortunately, her medical training provided no cure for this type of cardiac injury – other than apparently a self prescription for ample amounts of vodka.  Should her career still be on life support even though her conduct occurred outside of the workplace?

A:     Probably, yes.  Simply because an employee’s conduct is off-duty does not mean that it is protected.  Formerly, there was an argument that Labor Code sections 96(k) and 98.6 created a statutory authority for an employee to file a claim if they were terminated for lawful off-duty conduct.  However, the case of Grinzi v. San Diego Hospice Corp (2004) 120 Cal.App.4th 72 held that the Labor Code does not establish a public policy against terminations not otherwise protected by the Labor Code.

That being said, there are still concerns.  Primarily, an employer must make assurances that it treat all employees the same.  If the employer treats one group (e.g. woman, heterosexuals, etc.) different there could be a violation of Title VII or the FEHA.  An employer also cannot terminate an employee based on conduct that is otherwise protected by the Labor Code such as political speech or expressions of sexual orientation.  Here, it would seem a stretch to suggest that her actions were in anyway protected.  Currently, a broken heart is still not recognized as an ADA disability.


Should I conduct employee terminations like Richard Nixon and record everything? What are best practices for conducting employment termination meetings?

Q.     I am going to terminate an employee today, and let me tell you, it is about time!  I know “Horrible Bosses” was a popular, funny movie, but the reason they don’t make a movie called “Horrible Employees” is because they are NOT funny.  I have been paying my soon-to-be ex-employee for the last two years to do essentially nothing productive.  I have been reluctant to terminate her because I am afraid she is going to sue me.  To make matters worse, in public, this employee is as sweet-as-pie and would do great in front of a jury.  She is also very popular in the community where I do business.  But, in private, she is simply nasty.  I want to make sure I get her attitude documented! I am going to activate my smart phone’s recording feature so that I can video the termination meeting.  I don’t want tell my employee that I am recording the termination meeting, because I want to capture her true self. Even if she doesn’t sue, it would be great to put all her nastiness on You-Tube.  After the video goes viral, I will not look like a Horrible Boss, but she will definitely look like a Mean Girl.

A.     Slow down, Milhous…….recording is not the answer.  In California, all people have the right to privacy.  Indeed, it is enumerated in Article I, section 1 of California’s Constitution.  This right to privacy is broad enough to encompass the actions of private employers.  Surreptitiously recording another person may be considered a violation of that person’s constitutional rights.

Moreover, and perhaps more importantly, in California you can be criminally liable if you record another individual without their consent.  See California Penal Code section 632.  Not only does the Penal Code provide for possible jail time and fines, it also permits a victim to sue for civil damages.

And, because the evidence would have been illegally obtained, you likely wouldn’t be able to use it at trial, even in the event that the employee actually sued.

If you are still dead set on recording the termination meeting, you can do so only if the employee consents to the recording.  It is recommended that the consent be in writing.

Notwithstanding the above, there are some things you can do to make sure your termination meeting goes as smoothly as possible:

  • Arrange a confidential meeting place.
  • At least two representatives should attend. Designate one as the primary communicator and the other as the witness.  Have the witness document what was said in the meeting.  When selecting a witness, remember that you want to make sure he or she is not only a good witness for the purpose of the meeting, but would also be able to perform well in a deposition and/or in front of a jury in case of a lawsuit.  If you cannot have a second representative present, immediately after the termination meeting, be sure to document what was said in the meeting.
  • Stick to the content of the termination notice.  Briefly state the termination decision and basis.
  • Be matter of fact.  Meetings should not become argumentative.  Recognize at this juncture that the decision has been made based on the best available information.
  • Be as brief as appropriate – usually, about 10 minutes.
  • Discuss the return of your property, and if possible, retrieve all company property in the employee’s possession at the time of the meeting.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.