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Employees Fired for Expressing their Views

By Jennifer Vorih, Esq., Ty Hyderally, Esq.

We are in a very unique time in our country’s history. Many protests are happening throughout New Jersey and the rest of the United States. People are protesting against racism, protesting against wearing masks, and protesting against those who are protesting against police brutality. In addition, many “Karens” are popping up around the country, including in Montclair. Some of those Karens – people who act entitled and, particularly, those who commit public acts of racism – have been fired for their actions. These include:

  • Amy Cooper, who called the police and falsely claimed that an African American man was threatening her and her dog when he simply asked her to leash her dog in an area of Central Park where dogs were required to be leashed. Ms. Cooper was fired from her job with Franklin Templeton.
  • A shopper at Costco in Fort Myers, Florida, who recently yelled and cursed at another shopper. The man was later terminated by his employer, Ted Todd Insurance.

Many employees in Montclair and the rest of New Jersey may wonder if they can be fired for speaking their minds outside of the workplace. Often, the answer is yes. Many people might find this puzzling, thinking that because they have a right to free speech, they cannot be fired for speaking their mind or expressing their feelings. But in most cases, private employers are not required to uphold their employees’ right to free speech. 

Generally, private employment in New Jersey is “at will,” meaning that individuals who work for private employers, work in a non-union setting, and do not have an employment contract, can be fired at any time, for any reason…as long as that reason is not illegal. So, an employer cannot fire (or refuse to hire) someone because of that individual’s race, gender, sexual orientation or identity, religion, or disability, among other factors. These are among several protected categories.

In addition to protected categories, there are activities which are protected, so that employers cannot fire, refuse to hire, or otherwise adversely affect the employment of someone due to certain actions. But yelling at people and threatening them are not protected activities. Going on a racist rant and throwing a tantrum about being required to wear a face mask are not protected activities. Because of this, private employers are free to decide whether such actions warrant termination or other adverse employment actions. Many employers at this moment are deciding that they do not want to be associated with individuals who do these things. Those employers may be deciding this based on their own moral compass, because they do not want the public to perceive that they agree with the actions of their tantrum-throwing (former) employee, or simply because they realize that at this moment in time, retaining such an employee will cost them money.

In addition to the protected categories listed above, it is illegal for New Jersey employees to fire (or take other adverse employment actions against) individuals who report, object to, or refuse to participate in activities of their employer or a related employer, which the individuals believe are illegal, fraudulent, or in violation of public policy. Thus, an employee who reasonably believes that her employer is violating a law or a clear mandate of public policy by refusing to allow its employees to wear face masks, cannot be lawfully fired for objecting to such actions, complaining about them, or refusing to participate in them. Likewise, if an employee who reasonably believes that her/his employer is discriminating against someone due to his/her race, gender, or other protected category, and that employee complains about it, the employer is again prohibited from taking an adverse employment action against that employee.

These are tumultuous times. Everywhere we look, it seems that tempers are flaring and nerves are frayed.  For the most part, New Jersey employers can terminate workers at will.  New Jersey workers would be well served to keep that in mind as they decide how to conduct themselves…both at work at outside of work.

This blog is for informational purposes only. It does not constitute legal advice, and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.

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