Can Employers Terminate for Off-Duty Conduct (Say, Like Storming the Capitol)?

By Fiona W. Ong - Shawe Rosenthal LLP

January 15, 2021

Following the shocking events of January 6, 2020, there have been many reports of individuals who have been terminated, suspended or resigned from employment as a consequence due to their involvement in the deadly storming of the Capitol building or their active support of President Trump’s “stolen election” narrative. But what exactly are the parameters of when an employer can take action against an employee for engaging in off-duty activities that an employer may find repugnant? We first blogged about this issue back in 2017, in light of the deadly white nationalist/supremacist rally in Charlottesville. But a refresher seems timely.

Every state, with the exception of Montana, recognizes the concept of employment at-will, meaning that an employee or the employer may terminate the employment relationship at any time, with or without cause or notice. (Montana has passed a law that essentially requires good cause for terminations). But this doesn’t automatically mean that you can terminate an employee for their participation in the Capitol insurrection or their support of attempts to overturn election results.

For the most part, employees engaged in these activities while off-duty. At least four states – California, Colorado, New York and North Dakota – prohibit employers from firing employees for engaging in lawful off-duty activities. So, verbal support of litigation challenging the election or peaceful participation in the rally preceding the insurrection could not be a reason to terminate the employee in such states. But if the employee engaged in any violent conduct or broke other laws – such as storming the Capitol building or possibly even inciting or threatening violence on social media – that could cross the line into unlawful activity for which they could be fired.

With regard to speech and activity that does not actually break the law, many employees may assume that the First Amendment’s right to free speech and assembly kicks in. But, the First Amendment applies to the government, not private employers. But at least two states – South Carolina and Connecticut – have enacted general free speech protections for individuals that would extend to the workplace- although such speech cannot be disruptive. To the extent that the speech takes place outside the workplace, however, it may be difficult for the employer to demonstrate that it is disruptive in the workplace.

Some states (including California, Louisiana and the District of Columbia) have passed laws that prohibit employment discrimination on the basis of political affiliation. Thus, to the extent that the employee’s support of President Trump’s attempts to overturn the election results is based on their involvement with a particular political cause or group, the employer in such states would not be able to take adverse employment action against the employee – as long as the conduct is not unlawful.

Another potential concern arises from the National Labor Relations Act. The Act, which applies to both unionized and non-unionized workplaces, protects employees’ rights to engage in discussions about the terms and conditions of employment. Unlike the “Fight for Fifteen” rallies that seek to increase the minimum wage, the purpose underlying the post-election activities at issue does not have any apparent overlap with protesting working conditions, which may have been protected by the Act. But if the employee were involved in protesting better work opportunities for Black or Jewish employees, there would be the potential (albeit perhaps a little strained) for the Act to apply. While the National Labor Relations Board under the Trump administration has shown a more employer-friendly approach to determining whether activity is protected, we anticipate a return to a more activist approach to finding protected activity under extreme conditions under a Biden administration. Thus, employers would be wise to consider whether there is any work-related aspect of an employee’s off-duty activities before taking some adverse employment action based on those activities.

Also, employers need to keep in mind that employees who are wrongly accused of being involved in illegal activity could potentially assert defamation claims. It is important for the employer to conduct a thorough and complete investigation before taking action, including getting the employee’s side of the story. (In a growing number of states, the investigation should not include asking co-workers to provide social media information about the employee, as such states have passed laws that restrict employer’s access to employees’ personal social media accounts). And if the employer decides to take some sort of adverse action, as with all personnel decisions, it should be treated confidentially and shared with only those management officials with a need to know – and certainly not with co-workers or potential future employers (a neutral reference policy is always safest).

It is also important for an employer to ensure that they are being consistent in addressing similar types of off-duty conduct. For example, an employer who terminates a white employee for participating in a white supremacist group but who doesn’t terminate a black employee for participating in a black supremacist group may open itself up to a discrimination claim by the white employee.

In summary – employers must be thoughtful (as always) before terminating an employee – particularly based on off-duty conduct.