The Problem with At-Will Firing and Wearing the Color Orange

In the United States, employees without a written employment contract can be fired for good cause, bad cause, or no cause at all. Florida, like many other states, is an at-will state. This means the employer can terminate the relationship at any time, leaving the employee with very limited legal rights to fight against termination.

At-will firing took a whole different meaning when a group of employees were fired from a law firm in Deerfield Beach, Florida for wearing orange shirts to work. The 14 employees fired from the Elizabeth R. Wellborn Law Firm began wearing matching orange shirts on pay-days a few months ago so they would stand out as a group at happy hour after work.  This act of camaraderie was viewed as being part of a protest involving orange, and all those wearing the color were fired. One employee tried to explain the happy hour connection, but the employees were still let go, despite the explanation and the lack any office policy regarding color of clothing.

This is an example of at-will firing: employers firing employees for no reason at all. At-will firing does not extend to protected actions, such as wearing clothes that have religious meaning (also included is any form of race, gender, or disability discrimination). However, unless your employment contract indicates that the employer will only fire you for good cause, the law in most states presumes that you are employed at-will.

While at-will firing in the form of wearing the color orange will catch most employees by surprise, it is not illegal on its face. The problem arises when the employer grounds the employment termination in a workplace protest, which may be a protected concerted activity. Protected concerted activities, such as organizing or collective bargaining, are activities that employees can engage in without fear of retaliation from their employers. This most frequently arises when one or a small group of employees is outspoken about workplace injustice or a group of employees meet to discuss the possibility of unionizing. Regardless of the form the concerted activity takes, the employer would be in violation of § 7 of the National Labor Relations Act for firing employees in reaction to their protest or organization. Elizabeth R. Wellborn Firm, in an attempt to give cause for the firing of the 14 employees, may have given the employees the evidence they need to make a case in court.

8 of the 14 employees fired for wearing orange have hired an attorney to represent them in pursuing a case with the National Labor Relations Board (NLRB). The law firm has recently released statements in response to the complaint, claiming that the firing was related to bullying incidents, not because of protesting activities. Whichever argument the Firm decides to use when defending the complaint, this incident raises attention to at-will firing and how that can lead to losing your job over the color orange.

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