'Can I Fire an Employee for Attending a Rally?'

off-duty-conductWhen photographs spread across social media of rallies organized by white supremacy groups this summer, employers questioned whether they could terminate employees who attended these rallies after hours. Below we address considerations for responding to off-duty conduct.

At-Will Employment:

In every state but Montana, absent a contract or agreement, employment is considered at-will, which generally means an employer may terminate an employee for any reason, as long as it is a lawful one. (In Montana, terminations must generally be for "good cause" beyond the first 90 days of employment.) Various federal, state, and local laws address what constitutes unlawful termination (see below). Employers should consider these factors when assessing how to address their employees' attendance at rallies.

Lawful Off-Duty Conduct:

Some states prohibit employers from taking adverse action against employees for engaging in lawful off-duty activities. These laws even protect employee conduct that employers may find objectionable. However, if the employee violates a law when engaging in off-duty conduct, such as by assaulting a protester at a rally, the unlawful conduct generally wouldn't be protected. Or, if an employer finds that the off-duty conduct contributes to a hostile work environment in violation of anti-harassment laws or workplace policies, the employer may argue the conduct is not protected.

Arrests:

If one of your employees is arrested at a rally, remember that many states and local jurisdictions prohibit employers from taking adverse action against employees because of arrests or arrest records. In addition, the Equal Employment Opportunity Commission (EEOC) has stated that taking an adverse employment action against an employee solely because of an arrest record may result in a violation of nondiscrimination laws. An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest is job-related and justifies an adverse employment action, according to the EEOC.

Convictions:

Even if one of your employees is convicted of a crime that occurred at a rally, some states and local jurisdictions may protect the employee unless the conviction relates to the individual's job duties. To comply with federal law, the EEOC recommends that employers conduct an individualized assessment (an evaluation of the facts surrounding the offense, history of offenses, rehabilitation efforts, and other factors) before taking an adverse action against an employee on the basis of a criminal record.

Protected Concerted Activity:

Under the federal National Labor Relations Act, employees have the right to act together, with or without a union, to improve wages and working conditions, and to discuss wages, benefits, and other terms and conditions of employment. These rights are considered "protected concerted activity" and apply to unionized and non-unionized employees. Therefore, if an employee's participation in a rally is considered "protected concerted activity," the employer would be prohibited from taking adverse action against that individual for engaging in such activity.

Political Activities:

Some jurisdictions (including California, Louisiana and Colorado), prohibit employers from retaliating against employees on the basis of their political beliefs and activities. Employers subject to these laws need to assess whether their employee's participation at a rally is a form of political activity.

Other Considerations:

Some employers may be concerned that an employee's known participation in a hate group rally may tarnish the reputation of the company, particularly if the employee holds a prominent position in the company or serves as a company representative. Employers may also be concerned that the conduct will contribute to a hostile work environment if images are circulated on social media for co-workers to view. Employers should balance these concerns with how an adverse employment action would be perceived by employees and make sure that employees don't feel that you've chilled their rights to engage in lawful off-duty conduct. In addition, be consistent when addressing this type of off-duty conduct, and consult with legal counsel to make sure you are complying with all applicable laws before taking an adverse employment action.

Best Practices:

Before deciding whether to take corrective action for off-duty conduct, understand the protections that apply to your employees and conduct a prompt, fair, and impartial investigation to determine:

  • What, if any, role the employee had in the rally;
  • Whether the conduct is job-related (i.e. the conduct affects the workplace or the worker's ability to do their job);
  • Whether a workplace policy has been violated;
  • Whether the conduct is protected by federal, state, or local law;
  • Whether that employee has engaged in similar activity in the workplace; and
  • The potential risks should you decide to continue to employ individuals who in engage in such conduct (such as tarnished reputation, lower employee morale, or potential discrimination claims if the conduct extends to the workplace).

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