Home Depot fires employee in a clear violation of the First Amendment

Recently, a Home Depot employee has been fired for wearing a button on his uniform. The button was not offensive in any way, but rather carried a “Under God” message in support of the US troops. Home Depot has said in statement that “The company’s dress code policy states that we do not allow non-company buttons, regardless of their message or content.” Many of us will rightfully see this as a violation of the first amendment – our right to free speech. But who is it that we are angry with?

Can your employer’s policies violate your freedom of speech? If you’ve answered ‘No’, think again! As a matter of fact, according to this publication issued by the US government (USCIS), there is little the Bill of Rights provides that would prevent employers from violating your constitutional freedoms with their policies.

The U.S. Constitution’s free speech protections apply only to action by the government.

According to the Lancaster Law Blog, two instances of case law (Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) and Wagner v. General Elec. Co., 760 F.Supp. 1146 (E.D. Pa. 1991)) exist where the courts rejected wrongful discharge claims based on the First Amendment protests asserted by employees who were fired for criticisms of their employer. In short, private sector employees do not have any constitutional free-speech rights in the workplace. However, there are some rare instances when an employer cannot terminate an employee for expressions of opinion, including union activity and anti-retaliation law. These cases, however, only cover about 8% of the US workforce.

Although there is no national law that protect an employee’s right to free speech in the workplace, there are currently 5 states -  New York, Colorado, North Dakota, Montana and California that provide some sort of First Amendment protection.

So think twice before freely expressing yourself at work. Your negative comments or attitude can easily lead to a firing and the employer is fully within their right to terminate you. Unless you’re trying to get fired, I would recommend keeping your attitude, conversation, or any other messages as friendly – and within company policy – as possible. A lot of us underestimate the effect of the content that we release into the public eye. Employees have been fired for blogging, twitting, and posting on Myspace and Facebook. Today, more and more companies are using the internet to look up their prospective employees – just like the employees look up the companies before the interview. The message that we sometimes mean to send out in private often times winds up in public. If not careful, these messages can cost you your job and your career.

Live carefully.