The First Amendment protects freedom of expression from governmental interference. However, the Constitution does not protect individuals from retaliation from private individuals, including private employers. New Jersey workers need to look beyond the Constitution if they are fired for their political opinions.
In some states, such as California or New York, anti-discrimination law protects political opinion in the same way it prohibits sex or race discrimination. By contrast, New Jersey offers no protection for political opinion or viewpoints.. Still, employees might have protections in certain situations if they were fired for their political views.
If you are employed by the state or a municipality, then you have more free speech rights than those in private workplaces. This does not mean that public employees can say whatever they want and avoid discipline or termination.
Public employees are also protected only to the extent that their speech is a matter of public concern. Although political views might qualify, it is sometimes unclear. Also, an employee’s free speech rights might be outweighed by the employer’s interests in some situations, so a public worker is still vulnerable to termination.
Disparate Impact Law
In some situations, an employee might be protected by the Law Against Discrimination for certain political activities. For example, an employer might fire people who participated in a political rally. If this termination has a disparate impact on a group—such as women, African-Americans, Muslims, etc.—then the employee could challenge the termination.
Antidiscrimination law in New Jersey protects against negative employment actions motivated by bias. There is also a “disparate impact” claim that workers can bring. If a facially neutral policy has a disparate impact on one group, then it is illegal unless the employer can show its policy was job-related and motivated by business necessity.
Worker Freedom from Employer Intimidation Act
This is a little known law that was passed in 2006 in New Jersey. New Jersey Statute §34:19-10 prohibits employers from demanding that employees attend meetings where the employer communicates his or her opinion about political or religious matters. An employer also cannot require that employees communicate with the employer about political or religious issues. There are certain exceptions for religious or political organizations.
For example, an employer cannot mandate that employees attend a meeting where he tells them to vote for a political candidate or support a social organization. The employer also cannot solicit the worker’s views. The law reaches broadly to cover social, political, or community organizations and activities. Any employee who has been retaliated against for refusing to participate can bring a lawsuit and request reinstatement and damages under NJSA §34:19-13. However, the time limitation to bring such an action is very short.
The law, however, allows an employer to “invite” employees to attend if they so wish. The employer must clarify that employees will not be punished or penalized if they don’t attend.
In 1980, the Supreme Court of New Jersey held that “an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). What constitutes a “clear mandate of public policy” is very fact-intensive and requires a thorough analysis of the circumstances of your employment termination to determine whether or not you can pursue a so-called Pierce claim for engaging in political speech or political expression.
Can I Be Fired for Political Speech in the Workplace?
These are tense times politically, and one tweet or Facebook post could result in termination. To better understand your rights, contact Sattiraju & Tharney, LLP today.