So Sue Me, Jackass!

Attorney Feldman is a nationally syndicated legal correspondent and general counsel of the Judge Group, Inc. Epstein is a writer and professor of writing at NYU.

So what about the employee who wants free speech rights?

When my co-workers complained that I was hoarding office supplies I started calling them communists. My boss threatened to fire me if I kept it up. How is that not a violation of my right to free speech?
 
So Sue Me, Jackass says: You’re making the classic fourth-grade mistake—Yes, the First Amendment grants you the right to freedom of expression, but it only applies to the government, which must give you the right to free speech. The amendment doesn’t apply to private entitles, which are within their legal rights to prevent you from freely expressing yourself on their time.

When we start talking politics in the office, things get heated and angry. Can the company stop this talk?

So Sue Me Jackass says: Talking politics can be rough stuff. But companies can, in fact, prevent employees from engaging in political discussions. Again, because your “right” to free speech is only a right when dealing with the government, the Constitution does not protect people from what they can and can’t say to private entities like employers. Therefore, companies are well within their rights—and during a heated election may be advised—to create policies that require collegiality among co-workers.

Although many states restrict an employer’s right to terminate an employee for political associations outside the office, when an employee steps into the place of business, he may be required to act professionally and not verbally dress down a co-worker for a difference of political opinion—even if that co-worker really needs it.

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Another annoyed worker thinks it must be illegal to make someone work on a national holiday. Can you make people work on holidays?

So Sue Me Jackass says: Unfortunately for you, it’s not illegal for an employer to make an employee work on a national holiday. Mean, yes, illegal, no. And, under federal law, the employer is also not required to give employees extra holiday or premium pay, or double time or triple time for working on a holiday. (However, the employer will owe normal time-and-a-half overtime premium for hours worked over 40 during the week. Assuming the employee is nonexempt.)

If you want to have a workplace that’s “a little harass-y,” can’t you just make it a condition of employment that employees have to put up with that atmosphere?

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So Sue Me Jackass says: Dov Charney, CEO (and underwear designer) for American apparel, tried that approach. He warned all applicants in word and deed (he conducted interviews in his underwear) that the environment fostered by the company was one of sexual openness. If applicants didn’t like it, they shouldn’t take a job there. The argument didn’t work. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when it explicitly or implicitly affects a person’s employment or interferes with his or her work performance or creates an offensive environment.

Simply telling an employee up front that the workplace is a sexually hostile work environment doesn’t protect the company from a lawsuit.

In tomorrow’s Advisor, we’ll offer more Jackass tips on sexual harassment, and we’ll take a look at your best defense against lawsuits—the HR audit.

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