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Employers within rights to fire Charlottesville marchers

Posted On: Aug. 22, 2017 6:00 AM CST

Private-sector employers are generally within their rights to fire or discipline employees for expressing views that could create a hostile work environment or damage the employer’s reputation even if the employees are exercising their First Amendment free speech rights on their own time, as thousands did in Charlottesville, Virginia, earlier this month.

While some states and municipalities may provide some protections to workers, at the federal level and in many other states employers can fire workers for activities that could harm the company, regardless of where the action takes place.

Violent protests erupted in Charlottesville on Aug. 11 and 12 after participants in the Unite the Right rally marched through the University of Virginia campus toward Emancipation Park to protest the removal of a Confederate statue. A Charlottesville resident, Heather Heyer, was killed on Aug. 12 when a vehicle drove into a group of counterprotesters and two Virginia State Police pilots died when their helicopter crashed as they attempted to help respond to the violence triggered by the white supremacists’ rally. 

Twitter account @YesYoureRacist has been devoted to publicizing the identities of participants in the Unite the Right Rally. One participant, Cole White, chose to voluntarily resign from his position at San Francisco Bay Area restaurant Top Dog, according to a statement from the restaurant, which also denied initial reports he was terminated. But as other rally participants have reportedly been fired from their jobs after being publicly identified, it has raised questions about employee and employer rights in these situations.

The consensus among legal experts is that employees have a First Amendment right to participate in lawful protests, even those that espouse ideas deemed hateful by many and slogans such as the anti-Semitic chants voiced in Charlottesville. But private employers generally have the right to take action against their employees, even if the activities leading up to discipline or termination happened off the clock.

“It certainly was not the first thing on my mind when I saw it, but after some reflection I did think ‘someone is going to get fired,’” said Eric B. Meyer, a partner in the labor and employment practice and co-chair of the social media practice group at Dilworth Paxson L.L.P. in Philadelphia. “There still is a pretty big misperception among employees that when you’re not working on the clock that what you do on your own time has no impact on your job. Taking it one step further: ‘I have free speech rights so I can say or do whatever I want on my own time and my job is safe’ and that’s just not true.”

The National Labor Relations Board protects the rights of employees to engage in “concerted activity” in relation to their terms and conditions of employment.

“But that would be a pretty big stretch,” said Cheryl Behymer, a partner in the Columbia, South Carolina, office of Fisher Phillips L.L.P. “I don’t know how you would possibly make that argument work in the context of the Charlottesville issue.”

Several states and local municipalities offer some protections to employees for engaging in lawful political activities and affiliations. For example, California’s labor code allows for administrative claims for “loss of wages as a result of demotion, suspension or discharge from employment for lawful conduct during nonworking hours away from the employer’s premises.”

“The jurisdictional question is the main question for employers in this particular situation because generally speaking in the United States when we’re talking about federal law that governs us all, while all individuals have First Amendment protections, the First Amendment does not protect employees from the employment consequences of exercising those rights,” said Demetri J. Economou, a Houston-based attorney with Kane Russell Coleman Logan P.C. “State and local law, however, may afford those protections.”

“In a state without a lawful activity statute and without a political anti-discrimination statute, employers have a lot of latitude to terminate for outside-of-work activities, including protests,” he added.

Private employers have the right to discipline or terminate employees in these situations because of the potential creation of a hostile work environment or the reputational damage that can occur when an employee engaging in hateful speech online or in public is connected to the employer — something that can happen very quickly in the age of social media, according to experts.

Employers should review their social media, employment or personnel policies and other relevant policies to articulate their expectations in these situations and possibly provide examples of behavior that may result in termination, experts said.

These steps are critical even in the workplace and apart from events such as Charlottesville because of changing attitudes and perceptions in the workplace since many employees “feel more emboldened about what they can say and do,” Mr. Meyer said.

“I’m not talking about just specifically engaging in discrimination, but a lot of people have this attitude that their coworkers should have a thicker skin and not be so sensitive and not so politically correct,” he said. “The way to fend off these problems is to talk to your employees, train them, retrain them about what you can do and what you can’t do in the workplace. An employer doesn’t have to fire someone because they marched in Charlottesville, but I would certainly counsel most employers to do that.”

Defense against lawsuits alleging wrongful termination may be covered by employment practices liability insurance, Mr. Economou said.

It is “crucially important” for employers to explain the context for any disciplinary action they take, which may involve discussing personnel matters more clearly than they are used to, said Nir Kossovsky, CEO of Pittsburgh-based Steel City Re, which offers insurance and risk management tools for reputational risk.

“They can’t simply go to that default ‘we don’t discuss personnel issues,’” he said. “Companies need to communicate with stakeholders about the values embedded in their corporate culture and set clear expectations of what is acceptable and what is not. In the current political climate, companies should have been considering this question all along, not just waiting for (Charlottesville) to stimulate that discussion. We’re in the era of weaponized social media.”