Workplace Lessons From Charlottesville

By Fiona W. Ong - Shawe & Rosenthal LLP

August 17, 2017

So, following the violent events and controversy surrounding the white nationalist/supremacist rally in Charlottesville, it was reported by Berkeleyside that an employee was fired from his job because of his participation in the rally. (The story was subsequently updated to state that the employee voluntarily resigned during a conversation with his employer about his involvement at the rally). But the initial story raised questions about whether an employer can take action against an employee for engaging in off-duty activities that an employer may find repugnant – such as participating in a white supremacist rally.

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). So this means that you can terminate an employee for participating in the Charlottesville rally (or a similar one), right? Well, not so fast.

One issue that immediately pops to many people’s minds is the First Amendment right to free speech. But as we noted in our previous blog post, Political Discussions in the Workplace, 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 participation in the rally is due to his or her involvement with a particular political cause or group, the employer would not be able to take adverse employment action against the employee.

In addition, at least four states – California, Colorado, New York and North Dakota – prohibit employers from firing employees for engaging in lawful off-duty activities. So, peaceful participation in a white supremacist rally could not be a reason to terminate the employee. But if the employee engaged in any violent conduct or broke other laws, that would cross the line into unlawful activity for which he or she could be fired.

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 “Day Without Immigrants” and “Day Without Women” rallies that took place earlier this year, the purpose underlying the Charlottesville rally did 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. But given the recent activist nature of the National Labor Relations Board in finding protected activity under extreme conditions, and pending new guidance from the Board in transition under President Trump, 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 hate groups 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 this type of off-duty conduct. Although white supremacist groups have dominated the media, there are also others. For example, the Southern Poverty Law Center has identified 917 hate groups in the U.S. While most are white-based organizations, some black supremacist groups are also listed. 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.