The swift workplace termination of Central Park dog-walker Amy Cooper is illustrative of what some might consider to be an unsettling legal reality: you can be fired for just about anything you do outside of work. And, because of that, it’s likely Cooper has little to no chance of successfully suing her employer for firing her when video of her in an altercation went viral.
Cooper, who is white, was recorded calling the police on Christian Cooper, 57, a science editor who is black and who was fatefully nearby watching birds. Mr. Cooper asked Ms. Cooper to put her dog on a leash pursuant to park rules. Ms. Cooper’s side of the story was disseminated by press release; Mr. Cooper’s side has been widely publicized by and through the video he recorded of what happened after an initial conversation. The specifics have been widely argued elsewhere.
Cooper’s employer, Franklin Templeton Investments, saw fit to tweet out that (1) it was investigating her viral outside-the-workplace conduct as of a 10:43 p.m. tweet on Monday, and (2) that she had been fired after a review as of a 2:24 p.m. tweet on Tuesday.
In response to an incident involving an employee on May 25th, Franklin Templeton issued the following statement. pic.twitter.com/8f2lMwK0r5
— Franklin Templeton (@FTI_US) May 26, 2020
Following our internal review of the incident in Central Park yesterday, we have made the decision to terminate the employee involved, effective immediately. We do not tolerate racism of any kind at Franklin Templeton.
— Franklin Templeton (@FTI_US) May 26, 2020
“Private employers have pretty broad latitude to terminate you for out-of-work conduct — it’s usually perfectly legal,” said Virginia attorney Tom Spiggle. Spiggle appears from time to time as a guest to discuss employment law matters on the Law&Crime Network.
“These issues, understandably, are confusing to people,” Spiggle said, given that most people would likely assume conduct which happens outside of work would not result in their termination. However, for at-will employees, it can, and rather easily. Spiggle added that viral cases which showcase employee conduct such as that portrayed in the Cooper video present a “tough spot” for employers; “most don’t want to be caught up in” or suffer any residual ill will which may come from the employee’s continued presence.
The analysis changes slightly when employees work for the government. There, generally, employees can be fired for out-of-work conduct, Spiggle said. However, public employers must abide by the First Amendment and the Due Process Clause. Government employees “can’t say whatever they want, but there are some protections,” he explained, noting possible — but certainly neither simple nor easy — First Amendment and § 1983 claims for alleged depravations of civil rights.
An employee who is is covered by an employment contract may enjoy greater protection based on the language of his or her individual contract. Many contracts, Spiggle warns, simply allow termination “for cause,” and the courts of some states, such as Virginia, interpret that language very broadly in favor of the employer. “It’s [oftentimes] whatever the employer says it is,” Spiggle explained, as to what “for cause” termination could entail. Yet other contracts are more precise.
Spiggle hypothesized that lawyers who draft employment contracts would be wise to clarify what types of viral conduct might result in termination. “If I’m a high-level executive, and I’m negotiating a contract, and if I’m an employer, too, I want language in there” to make clear what might result in a termination and what would not, he said.
Employment law changes from state to state and sometimes from county to county or city to city, so a winning case in one area may be a losing case in another.
Attorney William H. Healey, who is admitted to practice in New York, New Jersey, and Pennsylvania, identified for Law&Crime a New York law which provides some additional protections for employee conduct outside working hours.
“New York has a statute that, subject to several exceptions, prohibits employers from firing or refusing to hire someone because of his/her lawful, off-duty, political or recreational activities,” Healey said. “So, if Ms. Cooper can somehow demonstrate that her actions as to bird-watching Mr. Cooper constituted lawful, off-the-job political or recreational activities, she may have a claim against her employer for damages and equitable relief.”
“However, her employer will punch back, arguing that her actions are not protected by the statute because they created a material conflict of interest related to, and adversely affecting, the employer’s proprietary or business interests,” Healey added. Plus, some have argued that Ms. Cooper’s phone call did not accurately portray what happened and therefore may open her up to prosecution; the protection in the labor statute applies to “lawful” activities.
Cooper has not been charged with a crime.
“It’s easy for someone’s private activities to become public, which then negatively impacts that person’s employment,” Healey cautioned. “The answer in most states is easy. As long as the employment relationship is at will, an employee who says or does something out of work that is stupid, unethical, controversial, etc., can be fired immediately.”
One other example of a viral moment which resulted in job repercussions was that of Juli Briskman, the woman photographed giving the finger to President Donald Trump‘s motorcade while she was bicycling. Briskman filed a lawsuit; she won a severance pay claim but lost a broader equal protection claim. The equal protection claim was based on Briskman’s argument that a male employee was not fired for making political comments but that she was. (Briskman was later elected to county office.)
Another example was the termination of a restaurant employee who attended the Unite the Right rally Charlottesville, Va. His views reportedly caused friction at work.
[Image via screen capture from Facebook Video/Christian Cooper]
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