Question:
We were shocked to learn that two of our employees had travelled to Washington, D.C. to take part in the January 6th Capitol building riots. Both had filled out leave slips mentioning travel, and one had left two days before the other. When we asked each, “Where to?”, both had said, “Washington.” We thought that meant Washington state and reminded both to bring back negative COVID tests.
We learned the truth in a Zoom call last week when other employees voiced their disgust at the riots. First one and then the other of these two employees defended the rioters, saying, “it wasn’t like that.” Since many of us had seen the footage of what took place, none of us bought their arguments that the media had distorted things. The discussion grew heated and we had to end our Zoom meeting.
The riots sickened us, and we want these two employees out of our workplace. We have a business to run, and their presence on our team will lead to continued disruption. How do we proceed? What do we have to watch out for?
Answer:
You can fire them; cool down first
To cool things down at your workplace, place your two employees on administrative leave. Firing is a major decision; you want to make sure you act fairly and have the facts needed to defend your decision, should you need to.
Private sector employers can legally fire employees who participated in the illegal Capitol invasion; many have already done so. The rioters trespassed. Many looted and acted violently.
Investigate
Investigate what each employee did in Washington, D.C. You can do this by interviewing the employees, by viewing the video records available through news outlets and social media platforms, and through your record of what was said in the Zoom meeting. Their “it wasn’t like that” statements appear to signal some level of first-hand knowledge.
What happened in the Zoom call also comes into play. During the call, did either employee make racist, discriminatory, or hateful comments concerning others’ race, sex, or sexual orientation?
Additional evidence
Do you have evidence from what you’ve learned through social media that either employee violated your employment policies against harassment or discrimination? Some rioters wore t-shirts with slogans like “Camp Auschwitz”; others brandished nooses and weapons. If either employee engaged in these actions, it could signal discriminatory bias, make other employees uncomfortable, or potentially harm your company’s reputation, giving you a legitimate reason to terminate.
Employer right to fire
If yours is an employment at-will state, you have the right to fire an employee for any or no reason, as long as you don’t discriminate, retaliate or otherwise violate public policy.While you can’t fire an employee for discriminatory or retaliatory reasons, if either or both employees broke the law, violated workplace policies, engaged in violent speech or conduct that signals a propensity for violence that threatens other employees or disrupts your workplace, you can terminate them.
What about free speech & peaceful protests?
The situation isn’t as clear-cut if your employees lawfully exercised free speech by taking part in a peaceful political rally or protest or were innocent bystanders pushed forward by the mob, making it appear as if they supported the chaos. In that case, you need to tread carefully and may want to consult with an attorney.
Employee protections
Public policy might come in to play if either termination counters your employee’s statutory or contractual protections. If your employees are union members, they may have protection through clauses in their collective bargaining agreements that require “just cause.” Their union may argue that the employee’s actions had nothing to do with the workplace. Does either employee have an employment agreement that offers certain protections or procedures you need to follow?
Do any state laws apply?
Laws in California, Colorado, Louisiana, New York, and North Dakota prohibit employers from firing or retaliating against employees for off-duty lawful activity.
Employees who participate in peaceful political protests are protected by law in California; Colorado; Guam; Louisiana; Minnesota; Missouri; Nebraska; Nevada; South Carolina; Utah; West Virginia; Seattle, Washington; and Madison, Wisconsin.
Laws in the District of Columbia, Illinois, Iowa, Louisiana, New York, and Utah; Puerto Rico; the U.S. Virgin Islands; Broward County, Florida, and Urbana, Illinois, prohibit employers from discriminating against employees based on their political activities.
Finally, you appear to be a private sector company; public sector employees have constitutional First Amendment rights, and Connecticut extends these protections to private sector employees.
So, investigate, gather the facts, and make a final decision.
© 2020, Lynne Curry
Lynne Curry, Ph.D., SPHR, is the author of “Beating the Workplace Bully” (AMACOM, 2016, https://amzn.to/30V5JO6) and “Solutions”, https://amzn.to/2GYlnAN (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at https://workplacecoachblog.com/ask-a-coach/ or follow her on twitter @lynnecurry10. www.workplacecoachblog.com.
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This is a touchy situation, isn’t it! If it’s a private employer and it is an at-will employment state they can fire only as long as it isn’t discriminatory or in retaliation is the first big one. The caution to cool down first and that it may be more complicated than it seems at first–they may have participated lawfully, protesting, but not committing violence or vandalism, not engaging in hate speech, for example–is also key. Having spent most of my life around people whose points of view were more conservative and perhaps more hateful than mine, I’ve learned the value of cooling down, not immediately springing to being judgmental and self-righteous–though I’m plenty capable of both, after some consideration.
Almost all of us were shocked and sickened by how a protest turned into a violent mob that resulted in looting and deaths. We’ve all had too much of that. And Sue, you’re so right, we don’t want to go down the path of self-righteous judgmentalness. We need to fix this.
I think the most crucial aspect is, as you said, did the employees participate in the protest (which is protected speech) or in the riot (which is not)? I see a LOT of people not making a distinction between the two. I knew someone personally who, after the riot, stated on social media “Can we all just agree now that Trump supporters are terrorists?” This person made no distinction between rioters and protesters, or even between those who were in DC and those who were not. Whether one agrees or disagrees with what was being protested, it’s a Constitutionally protected activity. If this same employer had employees that attended a different type of protest, and saw no issues with that (perhaps leading one to believe the employer themselves has a certain political bias) then if they choose to fire these employees as a result of attending a protest I think they would be setting themselves up for a lawsuit they might not win.
Dee, all great points, and I’ve had many calls this morning comparing these protests with other recent protests; I think the area to focus on is what did the employee person actually do and was there violence?