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:
- You do not have free speech when it involves your job.
- Your job gets involved when you are
speakingin representation of your employer, or when what you’re doing is during your working hours.
- 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).
- 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.
immature are good words to describe that sort of activity. I’d add
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.