Can You Get Fired For Wearing An Orange Shirt To Work?

One of the most common questions I hear from my non-lawyer friends is something along the lines of: “I know that my employment at my company is at-will, but that doesn’t mean that my boss can just fire me for no good reason, right? Don’t I have to actually screw up pretty badly to get fired legally?”

Their eyes always widen a bit when I give them the somewhat-unsettling news that if they aren’t in a union or have an employment contract, they can be fired for just about any reason, or for no reason at all. To emphasize just how broad an employer’s power really is, I usually say something like, “In fact, your boss can show up and say that you’re fired because he doesn’t like the color of the shirt you’re wearing today.”

However, in all my years of practicing employment law, I had never actually heard of an employer doing something so trivial – until now.

A recent news story out of Florida (it’s always Florida, isn’t it?) caught the attention of employment lawyers and many others: Some employees last month announced that they had been fired from their jobs at a local law firm for wearing orange shirts on a Friday.

According to their story, the managers of Elizabeth A. Wellborn Law Firm, a Deerfield Beach firm that handles real estate law, called 14 employees into the conference room to ask why all of them were wearing orange shirts on the same day. They said that the managers asked them if this was some sort of protest. One worker spoke up and said that it was a bit of innocent fun – they were planning on hitting happy hour after work and wanted to all stick together and stand out in the crowd.

According to the employees, the managers left the room to discuss the situation and came back with the astonishing news: all 14 of them were fired immediately. There would be no two-week notice, no severance payments and certainly no farewell happy hour.

Later, during a media interview, one of the fired workers admitted that they had decided to choose orange as their matching color because they wanted to poke fun at one of the attorneys they worked for who had recently gotten a hideous new spray tan.

So, there are three possible reasons for termination. Were the workers fired for making fun of one of their bosses and his ridiculous spray tan? Were they fired because the bosses thought the workers were wearing orange as some sort of protest against the company? Or were they fired because the managers just decided they didn’t like the color orange (a thought that must rankle fans of Oregon State and Syracuse universities, and the Denver Broncos).

Assume the company believed that the workers were mocking one of the managers and his new shade of “tan.” Is this a permissible reason to terminate an employee? As long as the employees are at-will, then absolutely.

At-will employers can fire employees for any reason so long as it is not an illegal one (like race, gender or disability discrimination), or no reason at all. In at-will employment settings, every day is a brand new day and the employer can decide whether the employees will still be serving at their will that day.

Although a company’s employment policies may provide for progressive discipline – recommending a series of warnings for minor infractions that could eventually lead to termination – most such policies allow the company to skip the warning steps at their own discretion. Many employers choose to discipline or terminate employees for insubordination, for not being respectful in their dealings with management, or for arguing with the boss.

Although it might be harsh to fire a group of employees for making fun of a manager without prior warning – regardless whether the teasing was good-natured – it is perfectly legal to do so.

But assume the workers were fired for staging a workplace protest. Imagine that the workers were fed up with being worked too hard for too little pay and that the company was not communicating with them and that it was an awful place to work. As a sign of solidarity, they decided to all wear orange on a given day to signal their displeasure to management.

This type of protest could be considered “concerted activity,” when employees are united in pursuit of a common goal: doing something in the aim of mutual aid or protection, hoping to improve working conditions or terms of employment. Even if the employees aren’t unionized, and even if they are not trying to form a union, such concerted activity is protected by the National Labor Relations Act.

Typically, this situation arises when an employee is being outspoken on behalf of others protesting some workplace injustice, or a group of employees is holding meetings to discuss unionizing efforts, or some employees are drafting a complaint letter to management. No matter the form of concerted activity, it would be a violation of federal law for an employer to terminate an employee in reaction to their protest.

If it’s true that the employees were wearing orange shirts as a protest, the company here might have shot itself in the foot by saying it thought the group activity was a sign of dissent. It would have been better off simply firing the employees and telling them that they didn’t like the color of their shirts.