Ernest “Big Daddy” Bux’s daughter Kathy “Kitten” was working for Approval Literary Agency in Blessing, Texas – that is until last month. Kitten, an associate literary agent with Approval Literary was sacked after her boss learned that she owned accounts on the politically charged social media sites Lobby and Blabber. The agency’s owner I.B. Cheef publicly announced on Twitter that the firm had dropped Kitten after making the “distressing” discovery. Kitten tweeted that she was fired because of her political views. Does Kitten have a case for wrongful termination?
In, Texas? Probably Not. The basic rule in Texas is the “employment at will” doctrine. Absent an express agreement to the contrary, either party in an employment relationship may terminate or change the employment terms and conditions any time for any reason, or even for no particular reason at all, with or without notice. A private employer must also be mindful that the U.S. Equal Employment Opportunity Commission enforces laws that make it illegal to discriminate against someone because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. State employees in Texas have broader protections.
The First Amendment?
No. By its terms, it doesn’t apply to private employers, “Congress shall …,” which has been read as applying to the federal government generally, and the Fourteenth Amendment, which starts with “no state,” has applied this only to state and local governments. But, what about firing someone for what they say or what they do after hours, such as a state statute that bans firings based on certain kinds of speech or political activity? There are some.
New York bars employer retaliation for off-duty “recreational activities,” including, among other things, “reading and the viewing of television, movies, and similar material.” It also expressly protects a limited range of partisan political activities, such as running for public office, campaigning for a candidate for public office, or participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group. Yet, does the “recreational activities” provision protect political commentary on social media? That’s unsettled – especially in light of several New York State cases which appear to narrowly apply the statute.
Practice polite public discourse. And, it’s wise to know both the ins-and-outs of your job and its responsibilities, and your boss and his or her proclivities. Yes, generally speaking, in Texas you can be fired “for no particular reason at all.” For example, that includes being too short. A similar article Coming Up Short: Is it the Height of Prejudice Not to Hire Short People? appeared in this blog on September 26, 2012.
Tilting the Scales in Your Favor
As the saying goes, “you can sue someone for just about anything.” So, be judicious in your selection of employment and employers, and be thoughtful about your selection of social websites. If you have any doubts about the employment issues, I am sure that our Gray Reed employment experts Ruth Ann Daniels, Michael Kelsheimer, Marcus Fettinger and Jake Lewis will have sound advice. In the meantime, there does not have to be an explanation given to an employee whose services are no longer required. A simple, no thank you – without any further explanation for termination – will suffice.