Tough talk is Tomi Lahren’s brand. But can the conservative TV star beat her boss in court?
Lahren is going after Glenn Beck’s network, accusing The Blaze of unjustly firing her after she trumpeted support for abortion rights. She also complained to a Dallas County court last week that The Blaze is blocking her from accessing her Facebook page.
“I will not lay down and play dead — ever,” Lahren said in an interview that aired Wednesday on ABC News’ Nightline.
Yet she signed a contract that could make it difficult for her to prevail in court, said two labor law experts who reviewed her employment agreement with The Blaze. Neither is involved in the case.
Lahren’s ugly breakup with The Blaze began after she appeared on the ABC talk show The View on March 17. The 24-year-old commentator who has called herself “too conservative”for Fox News surprised the hosts with her stance on abortion.
“I can’t sit here and be a hypocrite and say, ‘I’m for limited government, but I think the government should decide what women do with their bodies,’ ” she told the women of The View.
A few days later, The Blaze said it had stopped producing Lahren’s show. But, she says, the company also told her it would continue to pay her in a move she described as an attempt by The Blaze to “sanitize their unlawful conduct.”
Lahren’s contract with The Blaze expires in September, and The Blaze maintains that it has neither fired Lahren nor breached its contract with her.
A clause in the contract says The Blaze doesn’t have to broadcast Lahren’s shows and that it fulfills its obligations by paying her salary. That “pay or play” provision could shield The Blaze from Lahren’s complaint, said Michael McCabe, a Dallas attorney who leads employment litigation cases for the firm Munck Wilson Mandala.
“Pay or play” clauses are common in the entertainment industry and serve as a guarantee that an artist or personality will get paid even if the producer later decides that the personality’s services are no longer needed, McCabe said.
“If they have not in fact terminated her employment and they’re going to rely on the ‘pay or play’ provision in the contract, it’s certainly making her lawsuit more of an uphill battle,” McCabe said.
Andrew Turner, an employment law attorney in Dallas at the Ogletree Deakins firm, agreed that the “pay or play” clause in Lahren’s contract seems to allow for the situation she describes in her suit.
And when it comes to private employers, Texas law typically doesn’t protect employees’ political expressions, Turner said.
“She may have a tough go of it,” he said. “She probably would win in the court of public opinion, but in the cold, hard reality of Texas law as it governs workplaces, she probably does not have a very strong case on those points.”
Still, there is a disconnect in the contract language that could help Lahren, McCabe said. The contract says that The Blaze isn’t required to air her shows, but it also says that 230 one-hour programs “shall be created” each calendar year. Lahren claims the company has not met this number and thus alleges breach of contract.
One question raised by Lahren’s suit is whether The Blaze has the right to dismiss her based on her personal views on abortion.
Texas is an “at-will” state, meaning a company can fire an employee at any time and for any reason as long as it’s not an illegal one. But Lahren has more protections as a contract employee, Turner said.
Her agreement with The Blaze lays out the reasons for which it could suspend or fire her. Among them is “conduct or involvement in a situation that brings employee into public disrespect, offends the community or any group thereof, or embarrasses or reflects unfavorably on [The Blaze’s] reputation.”
That is a broad provision that could give The Blaze the leeway to argue that Lahren’s support of abortion rights hurt the company’s conservative brand, McCabe and Turner said.
Yet Lahren argues in her suit that she had expressed her “pro-choice” stance several times before her appearance on The View and that The Blaze never took an issue with it.
She wants a court to give her back her Facebook page, which she says The Blaze completely controls now. Lahren’s attorneys argue that her Facebook page, which has 4.2 million followers, is not the company’s intellectual property.
The contract is not clear about who owns Lahren’s social media, McCabe and Turner said. But there is a provision that specifies that all material created by Lahren for The Blaze during her employment there belongs to the company.
Lahren’s Facebook page was launched in October 2015, after she joined the network, and it features segments from her show and short video commentaries called “Final Thoughts” stamped with the logo of The Blaze.
Turner said that the fact that The Blaze has the password and controls the account is “a strong indication” that it owns the content.
Jasmine McNealy, a professor at the University of Florida who specializes in media law, said a court will have to look at whether Lahren’s Facebook page was part of her job or whether it’s a personal account where she shares content that includes her work.
“This area of law and property is very unsettled,” she said. “It’s very unsettled because you have different platforms, you have different policies within each platform and you have different employment contracts. It’s a very case-by-case kind of thing.”
During her emotional Nightline interview, Lahren asked Beck to “let me go.” She said her ability to work and communicate with her followers had been wrongfully taken from her.
“Sounds like you’ve shed a tear or two over this,”
said Nightline anchor Byron Pitts.
“Don’t tell anyone,” she said. “I’m supposed to be tough.”
Source: Dallas News