Freedom of Speech, or Not?
Your employee doesn’t share your political views and makes it known to everyone. Can you terminate that employee? Or, in the reverse, you believe that you were terminated for your political opinions. Is that lawful? The question depends on the context including whether the employer is in the private sector or a government employer as well as other factors regarding the type of political opinions expressed.
Generally, there is no right to free speech in private workplace as the First Amendment does not apply to employees of private businesses. But, state laws can protect that speech (as South Carolina has). There’s also the case of unionized employers under the National Labor Relations Act (NLRA) that have some restrictions (this discussion is outside the scope of this article).
And then, of course, government employees do have a different set of rules because of the First Amendment which applies to the government. Our framers brilliantly designed constitution that guarantees certain freedoms. Among these Constitutional freedoms is, of course, the freedom of speech. The First Amendment to the United States Constitution states, “Congress shall make no law… abridging freedom of speech.” But that liberty is not limitless.
It’s no secret that United States politics have become increasingly divisive. Not only are the politics divisive but they are also just about equally split in viewpoints with most recent presential elections coming down to single digit percentage points with the last double digit win dating back to Reagan in 1984. Meaning, no matter what side you are on, there are many many others on your side as well as on the other side.
South Carolina At Will
In SC, an employer or employee can terminate the employment relationship at any time for any reason as long as such termination does not violate any state or federal law, because South Carolina is an “employment at-will” state. CITE. Private employers have certain degrees control over their business and with it the speech and conduct of their employees. The last time you received chick fil a, for example, you likely heard “my pleasure” as a required speech from the employee. Likewise, employers can prohibit employees from discussing confidential information or harassing other employees. In other words, there’s some latitude in the private context.
But, in South Carolina there is also a statute that protects political speech and opinions (in addition to the US Constitution). It is one of a few states that have a statute that make it a criminal offense for an employer to terminate the employment relationship for expressing a political opinion. This applies to both public and private employers. South Carolina Code of Laws § 16-17-560 states that:
It is unlawful for a person to assault or intimidate a citizen, discharge a citizen from employment or occupation, or eject a citizen from a rented house, land, or other property because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State. S.C. Code of Laws § 16-17-560.
A South Carolina employer who violates this statute could be found guilty of a misdemeanor, fined $1,000, and face up to two years in prison. An employer can also be found to have violated public policy for wrongful termination in a civil suit for violating the statute.
Notably, the terms “political opinions” or the “exercise of political rights and privileges” is not defined in the legislation but nonetheless the protections are there. We have limited case law on this matter except to conclude that the display of the confederate flag sticker on an employee’s vehicle was in a 2003 case was determined not to be a political opinion or exercise of a political right in the context of the statute above.
It is important to take into consideration that the First Amendment restricts the Government’s ability to make rules that restrict speech. A private employer still has the ability to set policies that restrict non-protected speech.
There are several areas that the First Amendment protects and some categories that are not protected. Some of the categories that are not protected include:
- using words that incite others to fight;
- making libelous or slanderous statements;
- true threats;
- child pornography;
- and obscenity. CITE.
How to Know Whether Political Speech is Protected
Employers (and courts) will continue to take this on a case-by-case basis. As tempers continue to rise in the political arena, we expect the cases implicated Section 560 to also increase.
Before an employer makes the decision to terminate an employee for making a political statement, it is important that an employer understands the statute and attempts to implement policies that prevent wrongful termination where they could be help criminally or civilly liable.
About the Author
Wesley Henderson is an employment attorney with Henderson & Henderson law firm in Charleston SC. He focuses on helping businesses navigate their legal environment, including new owners opening any type of new business. If you are an employer or employee facing concerns about political opinions in the workplace, Wesley can be reached by email or by phone at (843) 212-3188.