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Fired for Wearing the Wrong Color Shirt: The Scary Truth About Our Lack of Workplace Protections

Most American workers labor under the auspices of employment-at-will, which allows employers to hire, fire and promote for good reasons, bad reasons, or no reason at all.
 
 
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On March 16, at least 14 employees of the Elizabeth R. Wellborn law firm, located in Deerfield Beach, Florida, wore orange shirts to work. For this style choice, they were marched into a conference room and summarily fired. Wellborn’s husband declared that the shirts were a protest against working conditions at the 275-worker law firm, and that management would not stand for such behavior. (Early  reporting claimed the workers’ dress merely signified a way to easily organize a happy hour outing, although it later  came out that while that was true for some, others were dressed in the color of prison uniforms to protest draconian new work rules.)

Aren’t such tyrannical, arbitrary and callous acts illegal? Can management just throw you out on your ear, upending your life and endangering your ability to support yourself, for wearing the wrong shirt? Freedom of speech, freedom of expression, right?

Wrong.

The First Amendment and many of the Constitution’s other protections only extend to the government, not to private employers. Freedom of speech and expression are not protected in the private-sector, nonunion workplace. You could be fired for, say, wearing a pin advocating a particular political party. You could also be fired for sporting a smiley face pin.

“People assume they have a lot more protection at work than they actually do,” says Judith M. Conti, federal advocacy coordinator for the National Employment Law Center (NELP). “People also assume they have some right to be treated decently, and fairly, and respectfully at the workplace. They have the right to freedom from discrimination based on certain immutable characteristics like sex, race and age, but as long as treatment at work isn’t related to one of those characteristics you can be treated badly with no legal recourse. It’s kind of a free-for-all.”

According to Donna Ballman, the labor lawyer six of the Wellborn employees have retained, the workers had no idea their jobs could be imperiled by their choice of clothing color. “Who would?” Ballman responded in an email message. “Most Americans think your employer must have a good reason to fire you.”

But for the most part, American workers labor under the auspices of employment-at-will, a doctrine that allows employers near total control to hire, fire and promote, for good reasons, bad reasons or no reason at all. Employment-at-will is a principle that dates back to British common law, which early settlers brought with them from the Old World during the Colonial era. It is a relic of that time and has long since been overturned in Britain, along with the rest of the world’s wealthy nations.

In America well over three-quarters of workers are covered by employment-at-will, with Montana (with a population of less than one million) being the only state with a law requiring employers to have “reasonable grounds” for laying people off. Outside of Montana, a union is the surest protection against employment-at-will’s regimen of near total employer power. (Only a tiny sliver of American workers belong to a union: at last count 7.2 million in the private sector, or 6.9 percent of the workforce.)

Any union contract worth its salt includes a “just cause” firing clause. This generally means that employers are free to fire or lay off workers for any number of reasons, including misconduct, poor job performance, job obsolescence, or lack of revenue. But they cannot arbitrarily punish workers because the manager is having a bad day, or because they don’t like your smile (or lack thereof), as employment-at-will allows. (As the employees of the Elizabeth R. Wellborn law firm learned, this manifestly unjust state of affairs is just as applicable to white-collar jobs as it is to the low-wage service sector workforce.)

 
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