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Workplace Consequences for “Occupy Wall Street” Protesters

Can Engaging in Political Activities Outside the Workplace Get You in Trouble?

With the growing popularity of “Occupy Wall Street” protests the issue must be raised whether employees who participate are at risk of losing their jobs. Just talk to NPR radio host Lisa Simeone and you know the answer is “yes”. On October 20, 2011, Simeone told the Baltimore Sun that she had been fired by the public radio series "Soundprint" because series executives decided that her work as a spokeswoman for one of the groups involved in the Occupy DC movement was a violation of the series’ producer’s ethical code.

National Public Radio (NPR) announced on October 21 that it will no longer distribute the member station-produced program "World of Opera" to about 60 stations across the country because the show is hosted by Simeone. NPR spokeswoman Dana Davis Rehm told the Associated Press, “Our view is it's a potential conflict of interest for any journalist or any individual who plays a public role on behalf of NPR to take an active part in a political movement or advocacy campaign. Doing so has the potential to compromise our reputation as an organization that strives to be impartial and unbiased." NPR's ethics code states that "NPR journalists may not participate in marches and rallies" involving issues NPR covers. Given its diverse programming, that would seem to cover everything and, it seems to me, is a violation of free speech rights.

Simeone said “I find it puzzling that NPR objects to my exercising my rights as an American citizen -- the right to free speech, the right to peaceable assembly -- on my own time in my own life. I'm not an NPR employee. I'm a freelancer. NPR doesn't pay me. I'm also not a news reporter. I don't cover politics. I've never brought a whiff of my political activities into the work I've done for NPR World of Opera. What is NPR afraid I'll do -- insert a seditious comment into a synopsis of Madame Butterfly?”

Joanne Deschenaux, the senior legal editor for The Society for Human Resource Management (SHRM), reports on SHRM Online that some states such as California, Colorado, New York and North Dakota protect employees from being fired for lawful, off-duty activity, but most don’t. Peter Gillespie, an attorney with the Chicago office of Fisher & Phillips, points out that if an employer is doing business in a state without such a law and feels that an employee’s conduct outside of the workplace conflicts with the company’s culture and values, the employer is within its legal rights to fire them.

Daniel Prywes, an attorney with Bryan Cave in Washington, D.C., noted that “First you need to distinguish between political activity in the workplace and political activity outside of the workplace.” For activities outside of the workplace, other than union activity, federal law does not prohibit employers from disciplining or terminating employees because of their political views. “Therefore, one needs to look to state law,” he emphasized, echoing Gillespie’s statements.  

Employers have more latitude for conduct occurring in the workplace, Gillespie said, because “within the workplace, an employer has a legitimate interest in insuring productivity and minimizing disruptions.” As an employer, “you don’t want to discourage normal conversations, but if someone isn’t doing the job because of a focus on political issues, then the employer has the right to enforce workplace discipline rules.”

Prywes recommended that, as a good management practice, employers should “let employees know what types of political activity are permitted and not permitted in the workplace by publishing a policy or ‘code of conduct.’ ” The policy should address issues such as use of company facilities, including e-mail and public areas, for political activities; anti-solicitation rules in the workplace; and rules regarding distribution of political materials on company premises. The guidelines should also address off-the-job political activity, Prywes noted, “especially if it is of a nature that may undermine the employer’s business interests.” 

I wouldn’t be so concerned about the Simeone firing except that it happened again last week. Caitlin Curran, the producer of a radio show on WNYC-AM/FM “The Takeaway”, who is also a freelance employee, was fired after photos surfaced on the net of her holding a sign above her head during an Occupy Wall Street rally in New York. Curran was holding the sign which said, "It's wrong to create a mortgage-backed security filled with loans you know are going to fail so that you can sell it to a client who isn't aware that you sabotaged it by intentionally picking the misleadingly rated loans most likely to be defaulted upon." This is exactly what happened during the financial meltdown that started in 2008 when banks and financial institutions were absolving themselves of making risky home mortgage loans by selling them off to unsuspecting investors.

The next day, The Takeaway's general manager fired Curran over the phone. According to Curran, “he was inconsolably angry, and said that I had violated every ethic of journalism, and that this should be a ‘teaching moment’ for me in my career as a journalist. This may be true and, as a college professor, I look for teachable moments. But my view is this is an example of political correctness run amok. Those who believe in political correctness tend to believe others should avoid forms of expression or action that are perceived to exclude, marginalize, or insult certain groups of people. I get that, but what I don’t get is stifling free speech in the name of political correctness which, ironically, is just what happened last year when NPR fired the radio network’s former political correspondent Juan Williams for confessing on Fox News's "O'Reilly Factor" that he felt apprehensive when he would see Islamic passengers in airports. Williams' ouster eventually led to the resignation of NPR chief Vivian Schiller's, and a black eye for its image.

News outlets such as NPR must realize that the “Occupy” movement will not go away. I believe the message of those well-meaning protesters resonates with the public: “Our free market capitalistic system is failing us and must be reformed before it is too late.”

Blog posted by Steven Mintz, aka Ethics sage, on November 4, 2011