If one of my employees is a communist, can I fire him without getting sued?

I don’t like his stupid comments about our rich customers.

Asked on September 7, 2011 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Assuming you are not writing from some government agency--or possibly some instition or entity which is heavily government funded (like many universities, for example)--you should be able to fire this person so long as he does not have an employment contract. (If he does have a contract, you may only fire him in accordance with its terms.)

That's because:

1) While many things are protected by anti-discrimination law, such as race, religion, age over 40, national origin, sex, disability, genetic characteristics, etc., political opinions are not one of them.

2) If you are private sector, the First Amendment does not apply to you.

3) If the person has no contract, he's an employee at will and may be fired for any reason which is not illegal discrimination (see 1, above) or retaliation for filing a protected claim (e.g. FMLA, worker's compensation).

 


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