The Jan. 6 protest in Washington, D.C., of the results of 2020 presidential election turned into a violent insurrection unprecedented in our nation’s history. Many protesters became rioters and descended upon the Capitol building, engaging in unlawful entry, vandalism, desecration, and worse. Two people were killed and three more died following the incident.
Joe Biden will be sworn in as the 46th president on Jan. 20. There are FBI warnings of possible further attacks in Washington, D.C., as well as possible attacks in all 50 of our state capitals.
Employers may wish to consider now how they will respond if one or more of their employees participates in what may occur on Inauguration Day. There is no one-size-fits-all answer. Instead, I will divide potential conduct into three categories. But, first, some legal background.
A surprise to some business leaders, employees have no constitutional rights relative to actions taken by their employer, unless their employer is, in fact, the federal government. Therefore, private sector employers generally do not have any constitutional concerns and this article will proceed without a discussion of the constitutional issues relative to federal employees.
Protections for At-Will Employees
If an employee is at-will, the employer can terminate the employee for any reason, no reason, a good reason, or a bad reason, just not an illegal reason. The question becomes whether terminating an employee for his or her conduct would be an illegal reason.
If the employee’s conduct is unlawful, the analysis generally is easy, as discussed below. But let’s assume, for a moment, the employee’s conduct is not unlawful.
An employer needs to consider whether there are any state or local laws that provide protection for lawful off-duty conduct in general and/or political speech. California and New York provide both general and specific protections. Other states, such as Colorado, Louisiana, and North Dakota, provide some protections, too.
Employees Who Are Not At-Will
Not all employees are at-will. If an employee can be discharged only for “just cause” or the equivalent, then the employer ordinarily will need to establish some nexus to the workplace before discharging an employee. Among other factors that may help establish the nexus are the nature of the employee’s conduct, the employee’s position and the employer’s policies.
Employees with “just cause” rights include: employees covered by a collective bargaining agreement and who have completed their probationary period; employees who work in Montana or fast-food workers in New York City; and employees with employment agreements that may limit the reasons for discharge (or at least require severance in the absence of such a reason).
Let’s apply the above factors, plus employee relations and business reputation, to the three categories of employee conduct below. I will paint with a broad brush, knowing that the factors identified above will require a more nuanced analysis in individual cases.
Category 1. Employees who are captured on video or otherwise breaking the law by trespassing, vandalizing property or worse.
An employer’s rights here are very strong. We are not dealing with lawful off-duty conduct or what should be considered protected political speech.
While there may be some risk as to employees with “just cause” rights, that risk must be balanced against the risk of ignoring the conduct and the message that sends to the workplace and others with whom you do business.
A cautionary note—focus on the conduct and not any arrest that may result from it. Acting based on the arrest may give the marauder a viable claim.
Category 2. Employees who do not engage in criminal conduct but who wear or display hate symbols, such as wearing a Camp Auschwitz sweatshirt, or carrying a noose.
There may be some risk under laws that protect lawful off-duty conduct and/or political speech. “Just cause” may be an issue, too.
As with hateful social media, employers can mitigate any legal risk of taking adverse action by focusing on the employee’s publicly expressed hate—not political view—and the employer’s policies and values.
A reminder: There is risk in not taking legal risk. Can any employee feel comfortable working with (or worse yet, reporting to) someone who is a proud and public purveyor of hate?
Category 3. Employees who neither engage in criminal conduct nor display hate symbols but are solely participants in the protest.
For legal and employee relations reasons, an employer should take a second pause before discharging an employee who falls into this category. However, this category may be easier to articulate than to apply.
Does an employee truly fall into Category 3 if he or she applauds on video the destruction of property or marches next to someone carrying a noose? My view is “no,” but judges, arbitrators, or others may disagree.
Is an employee truly in Category 3 if he or she “only” marches but he or she knew, or reasonably should have known, the purpose of the protest was insurrection? My view is “no,” but judges, arbitrators, or others may disagree.
Oh, to avoid doubt, you don’t need a “thou shall not participate in an insurrection” work rule to take action if someone knowingly participated in one. But how do you know?
Questions like the preceding two will be among the most difficult for employers. In answering them, every employer will need to look at all the specific facts and circumstances of each case, including potentially speaking with the employee.
In these cases, it will be about risk selection and not risk avoidance. Knowing there is no risk-free path makes embracing a risk a little easier.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jonathan A. Segal is a partner with Duane Morris LLP. A former litigator, his practice focuses on maximizing legal compliance and minimizing legal risk with an eye on culture. Areas of concentration include managing in the new normal; diversity and inclusion; harassment and civility; wage and hour compliance; workplace investigations; pay equity; and employment, severance, and business protection agreements.