RPJ Partner Deena R. Merlen Interviewed by Forbes After Activist Employees Fired by Google File NLRA Complaint

RPJ Partner Deena R. Merlen was interviewed by Forbes for an article published recently, titled “All Hands Memo:  Why Activism At Work Could Get You Fired.” As noted in the article, “Forbes spoke with legal experts about the protections employees have – and don’t have – when it comes to speaking out at work.”

The Forbes reporters requested the interview with Ms. Merlen after reading an article by Ms. Merlen and RPJ Partner Jill Kahn Marshall that was published earlier this year in the New York Law Journal on employees getting fired over their social media postings and political discourse.

The Forbes article examines the rights of employers and employees in regard to workers’ protest activities and other activism at work.  It was published shortly after Google fired 50 employees for holding a sit-in protesting Google’s government contract with Israel. Those former employees have, in turn, filed a complaint against Google with the National Labor Relations Board, alleging that the termination violated their rights under the National Labor Relations Act. See here for more information.

As illustrated by such events, this is a fraught time for employers and employees alike. The Forbes article discusses what rights if any employees have to political speech or protest within a work context, and what rights employers have to terminate employees for their speech both within and outside of work settings.

According to the article, employees possess significantly fewer free speech rights than they tend to assume. Although many people have the misconception that the First Amendment of the US Constitution protects free speech in the workplace along with everywhere else, Ms. Merlen notes in the Forbes article that employees of private employers “don’t have any constitutionally protected rights under federal law to say what [they] want and not be fired for it.”

In this current environment, where the country is deeply divided on numerous issues and activism is surging, Merlen notes that “There are too many ways where employers and employees are going to fall into traps by either clamping down too hard, or risking their job by being too expressive. Everybody should be careful here.”

And it is not just one’s current employment that is at risk when individuals share their political views publicly. “For workers or students who choose to protest, there are risks for future employment, too. As it becomes easier to identify protest attendees by a mere picture–one reverse Google Image picture can turn up a person’s name—the law doesn’t offer much protection when it comes to future jobs, says Merlen, unless the employee can successfully argue they weren’t hired over a protected characteristic such as their religion.”

Despite the risk, activism is surging as individuals across the country give voice to their deeply held convictions – and in this election year, there is every indication that such protest activities will only increase.

For more information, read what Ms. Merlen has to say here: All Hands Memo: Why Activism At Work Could Get You Fired (forbes.com)