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Legal Jeopardy: Weighing the Risk of Terminating Employees for Actions Outside the Workplace

Many Americans watched in disbelief as chaos unfolded at the United States Capitol on Jan. 6 — an insurrection that resulted from a President Trump political rally held earlier that day.

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Many companies across the country were also quickly made aware their employees were visibly partaking in the violence. Some of these employers acted swiftly to publicly terminate employees who were involved. A marketing company in Maryland announced it had fired an employee who was shown inside the building wearing a company identification badge; the employer said it supports the exercise of free speech but could not tolerate “dangerous conduct that endangers the health and safety of others.” Additionally, a Texas-based insurance company announced on Twitter that it had fired an employee who was its associate general counsel and director of HR.

While these decisions are generally met with public praise, there are various legal considerations employers must consider when deciding for or against an adverse action against an employee. The first consideration, said Kwabena Appenteng, a workplace privacy attorney at Littler Mendelson P.C., is the state in which the employee is employed, as there are various forms of political activity protections in place across the country. California, for instance, has a broad political activity statute that it doesn’t just apply to political activity, but has been held to apply to advocacy of gay rights and advocacy for the disabled

The second consideration for employers, however, is the business aspect, Appenteng said. For example, in the case of an employee who was involved in the Capitol riot and was wearing his company ID badge in one of many pictures that went viral, the employer would have had a clear business reason to take action against the employee, based on his participation in a criminal act.

Other situations are not as black and white.

If an employer opts to terminate an employee who was at the Trump political rally — and demonstrated they were there on social media — but were not involved in any of the rioting later on, would they be within their rights to do so?

“It is a fact-specific inquiry,” Appenteng said. “The employer’s position is going to be that the person attended a rally where people engaged in violence and, as a result, the company terminated the person because they can’t be associated with a person who will participate in that kind of activity.”

In some states, such as Illinois where Appenteng is based, there isn’t political activity statute, but rather a provision of the state’s Personnel Record Review Act, which prohibits an employer from keeping a record of an employee’s political activities

Even in states that do have a political statute in place, the employer is likely at an advantage with any legal dispute that might come from a termination of this manner.

“The employee would still need to show that their employer was firing them because of their political activities, which is easier said than done. From a legal standpoint, the situation we just dealt with in the Capitol drew parallels to what we saw at the Unite the Right Rally in Virginia a few years ago,” Appenteng said. “There were a number of employers who decided they didn’t want to be involved with individuals who participated in what we saw transpire at that rally. The fact that both events began as a purported political event certainly caused employers to need to review their state’s political activity statute before taking action, but it did not entitle the employees who broke the law to any protection.”

Setting a Precedent

Some legal minds in the past week have argued that if employers take action against employees who were present at the Capitol riot, but did not take any action against an employee in their company who was involved in a social justice protest or Black Lives Matter protest, then they can be opening themselves up to a lawsuit.

Appenteng said he disagrees with the simplicity of that line of reasoning, but noted that it does highlight the difficulty employers face when deciding to act on an event that occurs outside the workplace.

“It comes down to what the person was actually doing. Somebody who was at the initial rally with Trump speaking and then went home differs from somebody who was actually within the Capitol halls,” Appenteng said. “Just like a person who may have attended one of the many peaceful Black Lives Matter marches last year, versus a person who was engaged in some of the violent actions we saw in Portland. I think there’s a difference there as well. I don’t think it’s a bad thing to set that precedent.”

Ultimately, it’s comes down to a matter of consistency when enforcing these employment decisions, said Deirdre Macbeth, content director, regulatory at WorldatWork.

“Employers need to be consistent with their policies and actions,” Macbeth said. “There is a natural risk for a discrimination claim if different actions are taken by an employer for similarly situated employees.”

Appenteng noted as well that many of these decisions are being driven by the C-Suite, even when the person in question is a low-level employee and the infraction is a social media post that contains offensive language.

“The marching orders for HR and legal in some of these situations has been ‘we need to need to set a precedent and let people know that this can’t be tolerated,’” Appenteng said.

Social Media Policy

While the rioting at the U.S. Capitol is what triggered termination decisions for employers across the country, Appenteng said the main source of these issues are brought on by social media posts. This is why, he said, it’s imperative that organizations — especially large ones — have a stringent social media policy in place given the current political climate.

“The political activity statutes permit companies to terminate employees for an apolitical reason,” Appenteng said. “An employer can look to that social media policy and say ‘it had nothing to do with the individual’s political beliefs, it had everything to do with this policy, which makes clear that you cannot post statements that are — for example — vulgar, or threatening, or intended to intimidate others, no matter what the underlying subject of discussion.’”

The other benefit of having this kind of policy in place is it can be circulated around to the workforce during particularly hostile times such as the Election, even in shortened form, to remind them of their obligations.

 “You’d be surprised how many employees pay attention when they receive those communications and suddenly think twice about the things they post,” Appenteng said. “Particularly when unemployment was as high as it was last summer.”

About the Author

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Brett Christie is the managing editor of Workspan Daily.            


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