As last month’s events in Charlottesville, Virginia showed, political extremism in the US is on the rise. After white supremacists descended upon Charlottesville, some marchers were identified on social media and lost their jobs as a result.
This was far from the only instance of hate groups in the news, but certainly was the most visible.
So, the $64,000 question is what does it all mean for employers? How far can an employer truly go when it comes to firing or disciplining someone for expressing their political beliefs outside of the workplace?
My recent XpertHR podcast explores those tough questions with North Carolina management-side attorney Robin Shea, who authors the Employment & Labor Insider blog and practices with Constangy, Brooks, Smith & Prophete.
A Twitter account with the handle @YesYoureRacist actively sought the identities of Charlottesville rally attendees, and the strategy worked in getting a Berkeley, California restaurant worker fired after people started contacting his employer to urge his dismissal.
Private employers generally can fire at-will employees based on their political beliefs. After all, the First Amendment does not apply to them. And as Shea notes, there are very good reasons to terminate a neo-Nazi employee whose affiliation could spill over into the workplace, lead to harassment and create anxiety among other employees.
However, not all situations are quite so clear-cut. “I would not recommend terminating an employee for political affiliations unless it was a very extreme situation,” says Shea, who adds that employers need to be careful how they define hate groups.
“I’m not talking about Evangelical Christians or people with traditional beliefs. I’m taking about members of really bad groups,” she adds. “Employers will be sorry in the long run if they try to shut down everybody who has a dissenting view. We don’t want employers to be thought police.”
For the group to qualify as a hate or extremist group, questions to ask include:
- Does the group advocate violence?
- Does it advocate violent overthrow of the US government?
- Does it preach the biological inferiority of certain races?
But some states, including California and New York, limit employers from taking action based on an employee’s political affiliations. Meanwhile, Connecticut extends free speech protections to the employees of private employers.
Additionally, several other states ban employers from adopting any policy or rule that prevents an employee from running for political office or from taking action against them.
So if your mid-level manager decides to run for County Dog Catcher on the Neo-Fascism Ticket, these laws merit consideration. Shea notes, though, that members of management are legally “the company,” so there may well be risks if the employer fails to act as well, whether it be loss of business, damaged employee morale or otherwise.
In all, roughly 30 states generally protect employees who engage in lawful off-duty behavior, including for their political activity. However, some of these laws do have exceptions, so they should be reviewed.
Another key factor to consider is whether the employer is subject to a collective bargaining agreement that protects employees’ political affiliations or requires that any terminations be for “just cause.” Shea advises employers always to consult the CBA before taking action and to get the union’s buy-in whenever possible.
For more insights on employee political extremism and other off-duty conduct, tune into our latest XpertHR podcast.