While most employees were settling into the first full workweek in the New Year, some employees traveled to Washington D.C. on Wednesday, January 6 to attend the “Save America Rally.”
Videos have been posted of people from all over the country who stormed the Capitol to protest the election results. As usual, social media was buzzing with attempts to identify the demonstrators, and with astonishing speed several people who breached the Capitol have been identified by name, hometown, and in some cases, their place of employment (including a former employee who was wearing his employee name tag). A number of these protesters have been publicly fired by their employers. A Chicago news station reported that a Chicago real estate company fired a realtor following her social media post which said she participated in “storming the Capitol.” An insurance company similarly parted ways with an in-house attorney who livestreamed his activities outside the Capitol.
Hey, what about Free Speech?
As more of the rally rioters are “outted” (or “doxed”), we likely will see more efforts to urge and/or publicly shame their employers to fire them. Would such terminations be legal? We think that terminating employees who participated in the Capitol violence is permitted under the law.
The starting point in such matters is the First Amendment of the Constitution, and this argument can be dispensed with rather quickly. While participating in the Save America Rally is likely political speech, most employees (more about that below) in the private sector do not have a constitutionally protected right of free speech with respect to their employment because the First Amendment only protects against the government’s enactment of laws abridging free speech. For public employers, the result could be different (absent any violence) since they are in fact impacted by constitutional restrictions.
Who and what could be protected?
Many states have laws which protects employees from discrimination and retaliation for voting, serving in public office, or attempting to influence an employee’s right to vote. In addition, many states protect employees for off-duty conduct. Similarly, some states treat an employee’s political beliefs like other protected classes. For example, in Washington DC, political belief is a protected class. In New York, employers may not discriminate against employees based on their support for any political party or for off-duty conduct including political activities. Could these state statutes protect employees who participated in the Save America Rally?
These state statutes would likely protect employees who peacefully participated in the rally, but what is not protected under the First Amendment or state statutes is any criminal activity which occurs as a result of a political belief. The employees who have been doxed on social media and publicly terminated were terminated for the violence associated with storming the Capitol, not for the employee’s political belief.
Private employers are not prohibited from basing termination decisions or other adverse employment actions on an employee’s expression of political beliefs if the political belief resulted in criminal activity like storming the Capitol.
What about Social Media Posts?
What can an employer do (or not do as the case may be) if you have an employee who publicly supports the rioters? Or what about the employee whose social media posts contains hate speech, profanity, or are supportive of the Proud Boys or a similar group?
We know that if you are a private employer the First Amendment does not apply to an employee’s political speech. But this begs the question, can a private employer terminate an employee for engaging in this behavior? The answer is yes, with some caveats.
First, if you are outside Minnesota, make sure that your state statute does not protect employees who engage in lawful off-duty political conduct. If you live in a state that does protect off-duty political conduct (California, Colorado, Louisiana, New York, and North Dakota), be careful in your decision. For example, it is likely that you could not terminate an employee who simply “liked” the post of an attendee at the Save America Rally, but there could be a different result for an employee who “liked” the post and encouraged continuing efforts to destroy federal property.
If you do not live in a state that protects off-duty political conduct you could terminate your employees for public support of the rioters or hate-speech. Our advice, however, is to be careful and judicious in your decision-making. First, make sure that you have an updated and thorough social media policy. Second, make sure that you have fully considered all the facts surrounding the employee’s post – What did the employee say? Did the employee encourage violence or other unlawful action? Who is the audience and what was its reach? Does the post implicate other protected classes such as race, religion, or gender? Does the post support political-related violence? Does it endorse a perspective that encourages discrimination based on race, color, or creed? Finally, and most importantly, make sure you have your facts straight (as you should in all terminations).
For all of the reports which identify employees who stormed the Capitol, there have also been reports of participants having been wrongfully identified. Terminating an employee for the mistaken belief that the individual participated in storming the Capitol or who made a white nationalist post could result in a defamation or other wrongful discharge claim.
In the absence of a state statute which protects an employee’s political beliefs, private employers are not prohibited from basing termination decisions or other adverse employment actions on an employee’s expression of political beliefs if the political belief resulted in criminal activity like storming the Capitol. However, as with any employment decisions, make sure you have all of the facts (and not “alternative facts”).