A few months ago I wrote about the case of Juli Briskman, who was fired by her employer over a photo of her raising a middle finger to Donald Trump’s motorcade. Even though I thought Briskman was rather juvenile, and also rather dim for making the photo her profile picture on social media, I believed it was nothing to do with her employer and she’d been dismissed unfairly. Most of my commenters disagreed, either on the grounds that employers have, or should have, the right to fire anyone for any reason (or none), or that the photo could have cost the company future business.
I saw in the news last week that Briskman intends to sue her employer for wrongful dismissal:
A US cyclist who was sacked over a viral photo of her making an obscene gesture to President Donald Trump’s motorcade is suing her former employer.
Juli Briskman was fired by government contractor Akima LLC in November 2017 after a press photographer travelling with the president captured the image.
“Americans should not be forced to choose between their principles and their paychecks,” her lawsuit states.
Her lawyers argue her right to free speech was violated by the firing.
I think she should and I hope she wins. I understand people will disagree with me, but I don’t believe companies have a right to dictate your behaviour outside of working hours, with obvious exceptions for criminal behaviour. That the work contract is drawn up between two free and consenting parties doesn’t change that, unless specific behaviours which could lead to dismissal are identified. Most employers use the vague catch-all of “bringing the company into disrepute”, but I believe the onus should be on employers to demonstrate disrepute has been brought and damage has been done.
Now I understand the principle that any employee is free to refuse a contract which allows for their dismissal should their political opinions fall foul of the HR department, just the same as I understood The Atlantic had every right to fire Kevin Williamson. The problem I have is only one section of society is expected to abide by these principles while the other has none whatsoever. Many government workers – teachers, police, doctors, nurses, council members, BBC employees – frequently engage in politics, often of the extremist variety, at events and rallies which are fully endorsed by their management. I have seen videos from NUT conferences, and reports from the junior doctors’ revolt. I have seen profiles of the sort of people who turn up to anti-government protests, Antifa and BLM rallies, anti-Israel marches, and other events organised by the professionally aggrieved; a lot of them draw their salary from the taxpayer, and feel no reason to refrain from expressing their political views, with many even doing so in their professional capacity. Academia is another area chock-full of people who routinely express extremist political views safe in the knowledge they won’t even raise an eyebrow with their employers, let get alone hauled in front of management and fired.
So we have a situation where hardcore rabble-rousers on the left are free to spout their opinions and attack their political opponents from a safe position of lifelong job security, while everyone else should keep their mouths shut or risk being fired. Because principles. And the right wonders why it’s been utterly defeated in the culture wars.
Unless there is some serious pushback, and companies are required to demonstrate actual disrepute and damages (or at least a credible mechanism for the same, not hypotheticals along the lines of “if a defence worker had seen it, it could have cost us a contract”), political tests in the private, commercial sector will become the norm for all employees. They already exist in academia: ask Streetwise Professor how many Republicans can be found working in American universities. It will also become extremely risky to engage in any sort of political activity that doesn’t align with that of the HR department. I’d not be surprised in the next few years to hear of an employee being fired for admitting he voted for Brexit (or similar), along with a bland statement from the company spokesperson about how his behaviour “didn’t reflect the values of the company”.
It’s becoming increasingly obvious that being an employee is no longer about fulfilling what’s in your job description, but adhering to a vague set of moral values which are policed inconsistently by the sort of people who’d dob you in to the council for putting out the wrong bin. So-called conservatives seem to have nothing to say about this, other than to speak of lofty principles which bear little relation to reality. “HSBC closed your account? Barclays too? Well, that’s their right, you can always go and open your own bank.” Now principles are good; I generally don’t think we should kick in the doors of our enemies’ houses and slit their throats, for example. But if the other side has been slitting throats for some time and they’ve reached the next street, principles of non-violence aren’t going to help very much.
I have no time for companies that think they have a right to police employee’s behaviours and opinions outside of work, nor HR departments who scour social media looking for examples of wrongthink they can use to threaten underlings. People join companies to be compensated for the work they perform and the time they put in, not to have their political opinions suppressed and wholly unrelated aspects of their lives regulated. If this isn’t nipped in the bud now, it will get much worse. So far, it is mainly politics, but how long before being a Christian, or a smoker, or enjoying a drink, or mocking polyamory is enough to get you fired? And let’s be quite clear, these things are applied retroactively, as we saw with Toby Young.
Juli Briskman excepted, the political left will be only too happy with this state of affairs, meaning it falls to the right to put a stop to it. This doesn’t necessarily mean government intervention, just a more sensible interpretation of contract law. If I hire a builder for a house extension, and he turns up with the expectation of 3 months work, and a month in I fire him because I find out he supports the wrong football team, I believe he has grounds to be compensated for the entire job. He has been put to huge inconvenience and lost out on work of equivalent value he could have taken instead, because he didn’t meet criteria he was unaware of when he entered the contract.
Similarly, if an employee is fired for something wholly unrelated to their work (and the onus should be on the employer to prove any connection), they should sue for compensation on the grounds they were unaware of this specific criteria, they could not have reasonably foreseen it, and they could have taken a job they were more suited to had the employer not kept this criteria secret. The way I see it is this: if an employer hires somebody who’s personal behaviour and political opinions don’t match those of the company management, it is their mistake, not the employee’s.
Leaving aside the suggestion that Briskman’s photo might have cost her employer work, if “not disrespecting Trump’s motorcade” was a requirement of her employment they should have made this clear during the hiring process. If they didn’t, she has the right to engage in any legal activity outside her working hours that she pleases, including flipping off Trump’s limo and posting the photo on social media. I’m glad she’s suing, and I hope she wins.