Can they do that? Firing employees for off-duty conduct

by T. Harold Pinkley

Participating in last year’s Unite the Right rally in Charlottesville, Virginia—an event that involved several groups usually identified as the “alt-right,” along with groups protesting the marchers—has proven to have unforeseen and unintended consequences, including job loss, for some of the people involved. This article examines how you can or should respond when you learn your employees have been involved in controversial public conduct.  protest design - lots of furious people (demonstrations)

Employees feel the backlash

After the rally, social media users (#yesyoureracist) worked assiduously to identify right-wing marchers who participated in the Unite the Right rally in Charlottesville and pressure their employers to fire them. The effort was successful to some extent.

An employee of Top Dog, a restaurant in Berkeley, California, was outed on social media, and his employment has been terminated, although whether the termination was voluntary or involuntary is in some dispute (see “Charlottesville White Nationalist Demonstrator Loses Job at Libertarian Hot Dog Shop” in the August 14, 2017, issue of the Washington Post). An employee of Uno Pizzeria and Grill in South Burlington, Vermont, was also discharged because of his involvement in the rally, according to USA Today. The same fate befell a resident of Ridgeville, South Carolina, who had been employed as a welder and mechanic at Limestone & Sons, Inc., in Charleston and a resident of Rossville, Georgia, who worked at Mojo Burrito, a Mexican restaurant in the St. Elmo section of Chattanooga.

Finally, it has been reported by philly.com, the online presence of the Philadelphia Inquirer, that Verizon is investigating a man depicted in a photograph wearing what appears to be a Verizon uniform.

Can they do that?

Let’s frame the issue as precisely as we can. These people were fired (with perhaps one exception) for engaging in conduct that, while reprehensible to a very large majority of the population, was—for the most part—legal and, importantly, occurred while they weren’t on duty or on their employers’ premises. So can their employers fire them? The answer, with some rare exceptions (Aren’t there always exceptions?), is yes, they can. Let’s look at the arguments you might expect from the fired employees.

First Amendment rights. This one is easy: Because all the employers involved in the firings are private-sector employers, the First Amendment simply doesn’t apply. It’s a common misconception that the U.S. Constitution’s protection of free speech applies in all situations and to anyone who would in some way abridge the freedom of speech. It doesn’t. It applies only to state actors.

The “state” here refers not only to those acting on behalf of a state government but also to those acting on behalf of the federal government. If any of the affected employees had been working for either a state or a federal governmental entity, the First Amendment would clearly present an obstacle to firing them. But in a private-sector employment scenario, that isn’t the case.

Termination for cause. Another common misconception is that employers are permitted to fire employees only for “cause,” “good cause,” or “just cause.” Again, with some exceptions, that isn’t true. The rule in every state except Montana is that employment is “at will.” Under that rule, an employer or an employee may end the employment relationship “for good reason, for bad reason, or for no reason at all.” None of the fired employees hailed from Montana, so there was no need for the employers to have good cause to fire them. Nor, it appears, were any of them union members. Most collective bargaining agreements (CBAs) include a “just cause” or “good cause” requirement, meaning the firings probably wouldn’t pass muster under most CBAs.

A more promising argument might be a common law claim that the employees were wrongfully discharged in violation of a state’s public policy. Again, the issue will be state-specific. A public-policy-based claim stemming from such a termination would likely face an uphill battle in Tennessee. Other states, notably California—which has historically been more receptive than most states to claims of wrongful discharge in violation of public policy—might well accept the validity of such a claim, especially through the early stages of the lawsuit.

Whether a public policy wrongful discharge claim would be successful would likely hinge on whether the conduct in question was peaceful and legal. In the case of the Charlottesville rally, it would be very difficult to determine whether any of the individuals who lost their jobs were involved in nonpeaceful or illegal conduct. The questions of fact would be difficult to parse.

But even if the conduct was legal and peaceful, if it involved not just unpopular political opinions but openly racist or anti-Semitic views, would termination be proper? The question would shift a bit toward a consideration of the potential effect of the employee’s conduct on his employer’s business. If the employee was a high-ranking manager, the analysis would be quite different than if he was a line employee. After all, a manager is seen as a representative of the company; a line employee probably wouldn’t be. It would also be problematic to have an avowedly racist manager in a diverse workplace.

Federal labor and employment law protections. The National Labor Relations Act (NLRA) forbids an employer from taking action against an employee for engaging in “protected concerted activities.” In a recent case, Cooper Tire & Rubber Co. v. NLRB, the U.S. Court of Appeals for the 8th Circuit held that a striking employee couldn’t be disciplined for yelling racist terms at a bus full of replacement workers as they crossed the picket line. For a claim under the NLRA to be successful, however, the conduct at issue must be protected, concerted, and done by protected means.

The concerted prong is easy: The conduct must involve two or more employees. The protected prong can be a little more complicated: The conduct must be related to the mutual aid or protection of the terms or conditions of employment. “Done by protected means” indicates that the conduct in question wasn’t illegal or criminal. It’s fairly clear that the employees who marched in Charlottesville couldn’t satisfy any of those criteria. There’s no indication that two or more employees who worked for the same employer were involved, nor were any of them advocating or protesting anything remotely associated with the terms or conditions of their employment. And the means used by at least some of the marchers was probably illegal if not criminal.

Employers should also bear in mind the prohibition under Title VII of the Civil Rights Act of 1964 against employment discrimination based on religious beliefs. While the expression of religious beliefs didn’t appear to play a significant role in the conduct in Charlottesville, it’s easy to envision a scenario in which protests and counterprotests do involve religious expression (running the gamut from Christian fundamentalism to atheism, both equally protected under the law). So, for instance, if two employees engage in similar objectionable conduct at a march or protest but one espouses a particular set of religious beliefs as part of the conduct and the other espouses a different set of religious beliefs, terminating one, but not the other, could be deemed discriminatory.

State law protections. As we mentioned, some states do offer protection for various kinds of off-duty conduct. For instance:

  • Colorado and North Dakota have laws limiting an employer’s ability to restrict any lawful off-duty activity.
  • Montana’s statute, noted earlier, permits an employer to discharge an employee only for reasonable job-related grounds.
  • Connecticut’s statute has been found to extend First Amendment coverage to private-sector employers.
  • New York has a statute barring retaliation for off-duty recreational activities. It also applies to some partisan political activities.
  • Some states restrict employers from retaliating against employees for “political activities.” The scope of each state’s definition of “political activity” is different, however, so generalizing about what constitutes political activity is pretty much a vain task. States and U.S. territories with this kind of law include California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, and West Virginia. Some cities (Seattle, Washington, and Madison, Wisconsin, for example) have adopted similar local laws.
  • New Mexico’s law bars discrimination based on “political opinions,” although it’s not clear how broadly that term would be interpreted.
  • Several localities, including Iowa, Louisiana, Puerto Rico, the Virgin Islands, and Washington, D.C., have laws forbidding employers from discriminating against employees based on their political party membership.
  • In New York and Washington (and perhaps Illinois) employers aren’t permitted to discriminate against employees because of their election-related speech and political activities.
  • In several states, it’s illegal to discriminate against employees who make a contribution to a candidate for political office.
  • Hawaii, Idaho, Kentucky, Tennessee, West Virginia, Wyoming, and Guam forbid retaliation against someone for exercising his right to vote, which might include retaliation for signing petitions.

As you can see, most of the state statutes are fairly narrow and of limited application. So the Charlottesville marchers from California and South Carolina might have some recourse under their states’ laws. The two from Vermont and Georgia most likely don’t. In any state, however, it’s usually not a good idea to fire an employee for any kind of off-duty conduct, even if you find the conduct reprehensible, unless having the employee in your workplace would cause a significant business-related problem.

Bottom line

Image result for T. Harold PinkleyBecause it appears that demonstrations, protests, and counterprotests similar to the Charlottesville rally may occur with increasing frequency in the coming weeks and months, employers should keep a close eye on the situation and consider all the angles before taking adverse action against employees who attend such gatherings.

T. Harold Pinkley is a partner in Butler Snow’s labor and employment practice group in the Nashville, Tennessee office. He may be reached at harold.pinkley@butlersnow.com.

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