Capitol Riot Offers Reminder That Private Employers Can Broadly Regulate Certain Off-Duty Conduct
Author: David B. Weisenfeld, XpertHR Legal Editor
January 12, 2021
Many employers have condemned last week's armed riot at the US Capitol. Some have already fired employees who were shown participating, including one who was photographed wearing his company-issued ID card in the halls of Congress.
But how far can an employer go in regulating off-duty conduct and speech? While the First Amendment does not apply to private employers, about 29 states have laws protecting off-duty conduct. However, those protections are not unlimited.
"That protection is out of the picture for anyone who was inside the Capitol," Indianapolis employment attorney Susan Kline, a partner with Faegre Drinker, told XpertHR. "An employer needs to be prepared to say this isn't about your politics or social activism. You were engaging in [unlawful] conduct in violation of our policies."
Speaking to XpertHR about off-duty conduct generally, attorney and HR professional Kate Bischoff, who runs the Minneapolis-based tHRive Law and Consulting, said, "It's lawful for me to burn a cross in my front yard, but that will affect my ability to do my job. It's no longer just off-duty conduct because Black people will no longer want to work with me."
Some steps an employer should consider in taking action against an employee in the aftermath of the Capitol riot or for other off-duty conduct include:
- Capturing the evidence (Bischoff notes, for instance, that nearly every cell phone can show where someone has been at a given time);
- Establishing a good record as to why the company will take action; and
- Distinguishing the event at issue from other protests.
Kline said there might be "gray areas" for people in the crowd of onlookers who never approached the Capitol. "You don't want to fire them for being a Trump supporter," she said. "If the employee encouraged unlawful activity in any way, however, the employer can take action."
According to Bischoff, once an employee was at the Capitol they were there with a purpose, and there should be no question as to termination. "A large group of people hung a noose," she said. "The employer can't pretend nothing happened." She suggested that to do otherwise would condone a hostile work environment.
Both Kline and Bischoff agree employers have even more discretion to act when a supervisor is involved. For instance, a Chicago-area marketing firm fired its CEO after he entered the Capitol and refused orders by police officers to leave. "A supervisor represents the company 24-7," said Kline.
Employers should reaffirm their nondiscrimination, off-duty conduct and social media policies. Kline pointed out, for instance, that a social media message that involves hate speech or that encourages unlawful conduct (e.g. "Let's go burn that place down.") will never be protected activity whether or not someone actively participated in an activity.