Can the boss fire you for taking part in the Capitol Hill incident?

A prominent employment attorney discusses the limits of speech and expression in today’s heated, hyper-partisan environment.

 In the wake of the violence that engulfed the U.S. Capitol Building on Jan. 6, 2021, employers across the country have begun to re-examine the extent to which “off-duty” or “after-hours” behavior should play a role in the evaluation and discipline of employees.

For example, a prominent in-house attorney at a Texas insurance company was fired when his employer learned through social media that he had participated in the rioting in Washington, D.C. The situation received heightened media attention when it was discovered that the fired attorney had also been serving as the insurance company’s director of human resources—a role often considered to be the moral and ethical compass for personnel matters at most businesses.

But what impact should outside activities have on an individual’s ability to hold down a job? In particular, to what degree should employers use the threat of termination to limit or constrain conduct that could be argued to be an exercise of free speech or free expression? In light of reports that the FBI has now collected more than 17,000 tips regarding the identities of individuals who breached the U.S. Capitol Building on Jan. 6, these questions may quickly rise to the forefront for private employers in nearly every state.

And yet the law on this topic is far from uniform.  While certain states (such as California, Minnesota and Wisconsin) have laws prohibiting employers from retaliating against employees for engaging in “lawful political activities,” others (such as New York, Iowa and Washington, D.C.) adopt a more moderate approach, prohibiting discrimination in employment only on the basis of party membership or communication of election-related speech.

In a number of jurisdictions—such as Texas—there are almost no limits placed on the rights of companies to terminate employees for the activities in which they engage outside of work. With such a diverse array of laws in place, it may be difficult to foster reliable or consistent decision-making among employers, which is to say nothing of the differing regional ideologies that may influence the thinking of those with the power to terminate employees.

Indeed, while it may be acceptable (and even encouraged) to attend a controversial political rally in one area of the country, opinions may differ in other regions that do not share the same philosophical views. More provocative still is the question of what a business will do if it has offices in both locations.

But despite legal and regional variations, there is some common ground that may assist employers in addressing these issues. First, it is important to differentiate between “lawful political activities” and overtly illegal acts. In any sense of the term, storming the United States Capitol Building is not a “lawful political activity,” nor is destroying property or assaulting local law enforcement officials. In any of the foregoing scenarios, an employee’s conduct likely violates a company’s code of conduct such that termination is neither a surprise nor an unexpected consequence of the illicit act under consideration.

Similarly easy to punish is hate-speech and other forms of racist, sexist or offensive language that is either communicated in person or posted online. In almost every instance, companies operating in the United States have adopted anti-discrimination and anti-harassment policies that make such comments a de facto violation of protocol for which the only expected outcome is termination.  Although many employees who are terminated on this basis immediately invoke the guarantee of “Free Speech” under the First Amendment as their preferred defense, these individuals often fail to realize that they have no right to “Free Speech” in the private employment setting, as the First Amendment only provides protection against infringement by the government.

In other words, while no one in the United States will ever go to jail for uttering hate-speech, there is no corresponding protection for such words in the private employment setting, where employees should very much expect to lose their jobs if they have been found to have made such remarks.

The far more difficult question for employers in the immediate future will be what to do in situations where an employee participates in morally questionable political activity that fails to rise to the level of illegality. Consider if Donald Trump decides to hold a second political rally in which he once again espouses his theory that “widespread election fraud” altered the outcome of the 2020 presidential election.

Is an employee subject to termination merely for attending that rally? The answer is likely “no,” as it would be difficult for the employer to prove that attending the event was anything other than a legitimate form of lawful political expression on the part of the employee.

But what if the second rally also turns violent? Does the employer then have grounds to move against the employee in that context? Does the answer change if the employee claims that he or she did not participate in the violence or left the rally once the violence began?

These are the questions with which most employers will struggle as political affiliations across this country continue to polarize and entrench. Perhaps indicative of this forthcoming debate, one Chicago-based real estate firm has already terminated a broker for the mere act of attending the Trump rally in Washington, D.C. on Jan. 6.  Whether the now-fired real estate broker will assert a legal challenge in response to this action remains to be seen.

One related topic worth mentioning in connection with these issues is the subject of arrests. An increasing number of states (such as Illinois) have laws that prohibit employers from discriminating against employees on the basis of an arrest or an arrest record. Importantly, these laws do not prohibit employers from terminating employees for engaging in the criminal conduct that ultimately led to the arrest. For example, if four employees attend a rally that turns violent, the employer is within its rights to terminate all four employees for participating in the event. However, if one of the four employees is arrested at the rally, and if the employer fires only that employee (as opposed to the three others who were also in attendance), the employer could face a discrimination charge based on its use of the arrest as the presumptive ground for termination.

Suffice it to say, employers are going to have much to consider in 2021 if the perpetuation of politically-related violence and criminality are “only just beginning.”

Brian Weinthal is a partner at Burke, Warren, MacKay & Serritella focusing on employment-related lawsuits. He can be reached at BWeinthal@BurkeLaw.com.

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