Cold Stone Creamery Controversy recently sparked in the Central Valley (and then the nation when the story went viral) in response to this Facebook post by Turlock resident Denise Helms following President Barak Obama’s re-election:

“And another 4 years of the n*****. Maybe he will get assassinated this term..!!”

The 22 year old Helms defended herself in another Facebook post:

“So apparently my post last night about Obama got onto Twitter and Fox 40 came and interviewed me cause apparently a lot of people in Sacramento think I’m crazy and racist. WOW is all I got to say!! I’m not racist and I’m not crazy. just simply stating my opinion.!!!”

She can also be heard during media interviews stating, for example:

“I didn’t think it would be that big of a deal… The assassination part is kind of harsh. I’m not saying I’d go do that or anything like that, by any means, but if it was to happen I don’t think I’d care one bit… It’s not something I would dwell on, no… It’s not something I would be upset about.”

Denise Helms was fired from her job at Cold Stone Creamery after the employer learned of the post and began receiving calls from outraged members of the community. On November 8, 2012, a Cold Stone twitter post confirmed Denise Helms had been terminated, stating: “This employee is no longer w/the company. Her comments are outrageous, completely unacceptable & in no way reflect our views.”

So how does this all fit into the employment law context? Was Cold Stone Creamery within its legal right to fire Denise Helms? From reading several local comment boards (see here, here, and here), it appears some people believe that Helms should not have been fired because her statements fall within our Constitutionally protected First Amendement freedom of speech rights.

Unfortunately for Helms, however, a person’s First Amendment free speech rights are separate and distinct from a person’s right to continued employment. You can say (almost) anything you want, but that doesn’t mean your employer cannot terminate you. It only means you won’t be taken to jail for it. I will note as has been reported, that Helms is being investigated by the Secret Service because of the assassination portion of her statement. I don’t expect the Secret Service will find that to be a credible threat, however, and it is likely nothing will come of the investigation.

In any event, employment that has no specific term in California is presumed to be “at-will,” meaning it can be terminated at the will of either the employee or employer on notice to the other party. Generally, an employee can be fired for any reason or no reason at all.

Of course, there are limitations. Employees cannot be fired because of their race sex, age, religion, disability, etc. The California Labor Code also prohibits employees from terminating or disciplining employees because of their political affiliation, for filing a complaint with the Labor Commissioner, filing a workers compensation claim, whistleblowing, refusing to do something that violates federal or state law, and a number of other situations that are too numerous to discuss here.

California law also protects lawful conduct during non-work hours that occurs away from the employer’s premises. This would seem to encompass Helms’ statement because they were apparently made in the privacy of her own home after work hours. However, the law limits this protection to conduct that is not in direct conflict with the employer’s essential enterprise-related interests that would actually constitute a material and substantial disruption of the employer’s operations. (See Labor Code Section 98.6(c)(2)(A)).

Given the controversy surrounding Denise Helms’ statements, the national attention, community complaints, NAACP involvement, the Secret Service investigation, and Helms’ unrepentant attitude, a good argument can be made that Helms’ statements directly conflict with Cold Stone Creamery’s essential interests and disrupt its operations. And it is safe to say Cold Stone is within its legal right to terminate her.

The ice cream image above is a trademark of Cold Stone Creamery.