Nowadays we are constantly bombarded with news of events that arouse our political views. Social media both perpetuates these events and provides a platform for virtually anyone to express their social and political views. Political views are often visible to coworkers, including management and supervisors who have the discretion to make termination decisions. What difference might this make for South Carolina employers?
South Carolina statute S.C. Code §16-17-560 makes it a crime to “discharge a citizen from employment or occupation . . . because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.” In certain circumstances, an employee may bring a lawsuit against their employer for wrongful termination when this section is violated.
The South Carolina Court of Appeals addressed a claim for wrongful termination based on section 16-17-560 in an opinion issued earlier this year, Owens v. Crabtree, et. al.. In that case, ADC Engineering terminated Owens, an employee who, along with many local residents, was actively opposing a project to construct a parking garage near Shem Creek. ADC was the structural engineer for the project. Initially, ADC did not terminate Owens despite a demand for such termination from the developer for the project. However, ADC terminated Owens after learning he had been taking steps to oppose the project during work hours and using his company computer and cell phone. Owens sued ADC for wrongful termination based on section 16-17-560.
The Court of Appeals acknowledged that section 16-17-560 can support a wrongful termination claim “under limited circumstances,” but found in favor of ADC on the basis that ADC’s termination was because of his use of company time and materials, not because of political opinions or expression. As the Court wrote, “ADC had no issue with Owens exercising his right to engage in speech opposing the Shem Creek project—or other projects that ADC was working on—as long as he did not do it during work hours or with work equipment.”
Perhaps most intriguing is what is not in the Court’s opinion. One of ADC’s primary arguments was that Owens’ opposition to the project was not protected political speech under section 16-17-560. ADC found support for this argument in a district court case, Vanderhoff v. John Deere Consumer Products, Inc., where an employee was terminated because he had a confederate flag on his truck. In rejecting the employee’s wrongful termination claim, the Court in Vanderhoof determined that “the political opinion and expression covered by section 16-17-560 extends only to matters directly related to the executive, legislative, and administrative branches of Government, such as political party affiliation, political campaign contributions, and the right to vote.” The Vanderhoof Court wisely pointed out that without this limitation, section 16–17–560 would extend “to an infinite number of social issues that fall within the ambit of public debate and, as a consequence, at times become issues in the political arena.”
However, the Vanderhoff Court’s interpretation of S.C. Code §16-17-560 is not binding and the South Carolina Court of Appeals did not take the opportunity to explicitly adopt a narrow interpretation of that section (although attorneys for employers are likely to latch on to the Court’s statement that a violation of section 16-17-560 supports a wrongful termination claim “under limited circumstances”). It should be noted that the Court of Appeals opinion in Owensis subject to being reheard or further appeal.
The opinion in Vanderhoff was issued over 15 years ago, before the founding of Facebook, Twitter and even Myspace. The concerns expressed in that opinion are even more prevalent now with the relentless march of news stories and social media posts that invoke political emotions and expose those emotions to coworkers and supervisors. What if an employee argues they were wrongfully terminated based on, for example, a manager’s disagreement with a Facebook post they made about the recent Lincoln Memorial incident? What if two employees can’t work together because of an argument they had on Facebook about a police shooting (and transfer is not an option)?
Employees still have lots of room to argue that various opinions and activity are protected under section 16-17-560. What is clear is that they still must show that the termination was because of the protected opinion or conduct. This highlights the need for proper documentation and practices by the employer. Employers are encouraged to seek counsel if they believe an employee may argue that their termination was the result of their views on social or political issues.