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Free speech in the workplace: Can private-sector employees be fired for political opinions?

An increasingly divisive political climate has put the exercise of constitutional freedoms in the spotlight. While the First Amendment states, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech,” the First Amendment’s restrictions do not apply to private-sector employers. In other words, an employee’s freedom of speech and expression can have limits and repercussions in the private-sector workplace.

The polarizing political discourse has been on display along NFL sidelines since former San Francisco 49ers quarterback Colin Kaepernick began kneeling during the national anthem in 2016. Hundreds of NFL players and other professional athletes have joined the protests, and others have followed in solidarity.

At the beginning of the NFL season, President Donald Trump urged league owners to fire players whom he said showed a “total disrespect for everything we stand for.” But is it legal for an employer to fire employees for expressing their political opinions?

South Carolina is an “employment at-will” state, which means that either an employer or an employee can terminate the employment relationship at any time, for any reason, if such termination is not in violation of state or federal law. Private sector employers always will have a certain degree of control over employees’ speech. For instance, it is appropriate for a company to prohibit employees from discussing trade secrets or revealing confidential information. Employers also can prohibit harassing speech or conduct in the workplace. 

In South Carolina, however, political opinions and speech may have special protection. South Carolina is one of a handful of states with a statute making it a criminal offense for an employer to terminate an employee for expressing a political opinion. Under S.C. Code 16-17-560,

"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."

Because Section 16-17-560 does not define “political opinions” or “the exercise of political rights and privileges,” South Carolina courts interpret these terms on a case by case basis.

For example, in 2003, in Vanderhoff v. John Deere Consumer Prod., Inc, the District Court for the District of South Carolina examined whether an employee’s claim that he was discharged for displaying a confederate flag decal on his toolbox at work constituted a political opinion or expression.

The court concluded that displaying a confederate flag decal on a toolbox is not a political opinion or the exercise of a political right or privilege within the meaning of the statute, and therefore was not protected conduct under the statute.

While the confederate flag display did not qualify as a political opinion or expression, courts will continue to interpret what is included as political opinion on a case-by-case basis. Meanwhile, employers should be especially cautious of regulating any expression or speech by employees that could be viewed as a political opinion or an exercise of political rights.

An employer who violates the South Carolina statute could be found guilty of a misdemeanor, fined $1,000 and face up to two years in prison. While a criminal charge is certainly a concern for any employer, a more likely scenario is civil liability, with the statutory violation serving as the basis for an employee’s claim for wrongful termination in violation of public policy.

Because of the potential criminal and civil liability, before a private employer terminates an employee for what could be perceived as a political statement, such as “taking a knee,” we recommend that employers become familiar with this statute and develop policies for termination that take the law into account. As always, seek legal counsel for guidance before taking action that could have costly consequences to your business.

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