Tuesday, September 21, 2010


Free speech and firing

Derek Fenton was, until recently, an employee of New Jersey Transit, responsible for some back-office stuff that kept the trains running smoothly. Until recently, because he was sacked last week. No, the trains were still running smoothly, and his sacking had nothing to do with how he did his job. He was fired for having participated, on his own time and with nothing tying him to his employer, in the burning of a Koran in lower Manhattan in protest of the planned Islamic Center there.

You all know, of course, that I think he’s a bozo for that. That said, though, does he deserve to be an unemployed bozo?

The New York Times got some folks to debate the First Amendment issue that this raises:

New Jersey Transit fired an employee last week for burning a Koran in Lower Manhattan on Sept. 11 in his off-duty hours. Whether public agencies can control or punish their employees for speech they engage in when they are not on the job has been a matter of dispute. [...] New Jersey Transit said the employee, Derek Fenton, had violated its code of ethics. Assuming he wasn’t dismissed for other reasons, should he have been fired for his action?

All but one of the contributors to the debate are legal experts, and they answer the question from a legal perspective. I, on the other hand, am looking at it from my own moral perspective, instead. As it turns out, this largely agrees with the legal one, but I can be less circumspect, and I need not seek precedent to support my views.

And my views are these:

  1. You do not have free speech when it involves your job.
  2. Your job gets involved when you are speaking in representation of your employer, or when what you’re doing is during your working hours.
  3. You may be representing your employer by being in uniform, by identifying yourself as an employee in some other way (saying so, wearing a name badge, that sort of thing), or by being so well known that we just have to accept that you’re always representing them (Mayor Bloomberg, for example, is always representing New York City).
  4. Any employer has every right to sack you if you do or say something that adversely affects your job or your ability to do it, or reflects negatively on your employer.

There seems to be a thread throughout the discussion that makes a point of New Jersey Transit’s being a government agency; I don’t see that this matters. They’re an employer, and what I said above should (remember, this isn’t a legal opinion, but a moral one) apply to any employer, equally, whether public or private.

And, so, here’s the nut of it: Mr Fenton was not on duty, was not doing this at a time when he should have been on duty, was not wearing a uniform, was not presenting himself as a New Jersey Transit worker, and was in no way or sense representing New Jersey Transit. What he did had nothing to do with his job and had no effect on his continued ability to do his job. Mr Fenton’s actions reflected badly only on Mr Fenton, and not — until the firing — on New Jersey Transit.

New Jersey Transit was absolutely wrong in sacking him. They don’t have to like his political views, but, well, I’ve worked with many people over the years with whom I disagreed politically. It’s part of being out in public, instead of holing up in a cabin in Montana. They should give him an apology, and his job back.

The only Times contributor who disagrees with that is also the only one who is not a legal expert, and who is a Muslim representative. Salam Al-Marayati, executive director of the Muslim Public Affairs Council, likens burning a Koran to burning an American flag:

Burning the American flag is also protected by the First Amendment. But I certainly would fire any of my employees who would consider flag-burning as an act of defiance. It’s not. It’s childish and immature behavior, and those who would do such a thing would be unworthy of public employment.

Childish and immature are good words to describe that sort of activity. I’d add boneheaded, moronic, and a lot of others. But grounds for termination is not one of them, and Mr Al-Marayati is just wrong. Going to sci-fi conventions dressed as a Wookie is also childish and immature behaviour, but you’d better not dismiss your employees for doing it. I would hope that if he fired his employees so frivolously, he would be in for the same difficulties that New Jersey Transit should be getting into for this one.


Call me Paul said...

Unfortunately, the citizens of New Jersey will be paying for the rather substantial legal settlement New Jersey Transit will be onliged to pay out to Mr. Fenton when he sues. This will never see the inside of a courtroom. NJ Transit's lawyers will slap them about the head and shoulders, and say, "what were you thinking!" And Mr. Fenton will be substantially richer for his former employer's stupidity.

Barry Leiba said...

Ah, yes, indeed: that is the difference between this and the case of a private company doing it. In this case, the taxpayers, rather than the stockholders will get screwed.

Dr. Momentum said...

Well put. I would actually give the individual even more freedom here, but I think the way the law looks at it is probably a decent compromise.

I look at it this way: your expression of speech should be as protected as your freedom to worship. What if the employer didn't like Christians? Could the employer fire the employee for going to church and engaging in group prayer? How about if he happened to stop by on his way home from work, still wearing his uniform? How about if he is seen praying on his break?

People hold freedom of worship in high regard (some people only when their own religion is on the line, but that's another issue) but I don't see why any belief or expression shouldn't be afforded the same protections. Not all belief systems are religions, and not all belief systems are as important to people as their religions, but the distinction should be left up to the individual to make the decision.

I would give the employer some recourse to balance it out, however, if they could show harm. I think they should have to meet that standard, and it would strengthen their case if they could prove they were done sufficient harm.

Would any harm be enough? This is where values are important. We must weigh the cost of protecting our freedom of expression, and decide how much harm we sometimes are willing to bear to preserve the right. It is a test of our values.


Barry Leiba said...

Hi, Dr M.
Well, your break is your break, and I think you need to be able to do as you like on your break. If that break is long enough to get a little shopping done, go to your HoW and pray, or burn a Koran, cross, or American flag, then go knock yourself out.

But I do think an employer can reasonably ask you not to do any of that in uniform. I imagine that the Christian bookstore might not want its employees going to shul with their "He Is Written" polo shirts on, Sears wouldn't want folks in Sears uniforms shopping at JC Penney, and most businesses would dislike being openly connected to socio-political activism without their explicit approval.

Now, whether they should fire someone for doing those things would depend upon the situation, and I agree with you that their justification is far stronger if they can show (or reasonably argue) damage. In that sense, someone shopping at JCP in a Sears uniform is arguably more damaging than the same guy holding a "Palin is a Putz" sign at a lunchtime rally.

It would be nice if we could just all understand that people's expressions are their own, not their employers'.

Dr. Momentum said...

It would be nice to live in a world where we first consider what is reasonable for other people to feel, think, and even request of us.

If everyone thought that way it might not solve all the world's problems, but we might find that negotiations would at least start off more smoothly! And perhaps they would more easily find their way to equitable compromises.

It is amazing what reason and discussion can sometimes accomplish. Even more amazing how infrequently these tools are exercised.