Tuesday, August 15, 2017

Can employers fire employees for attending Charlottesville protests?

I'm sure you've already heard about the violence in Charlottesville this past weekend, and you've probably heard about the efforts to get the white supremacist protesters fired. Is is legal for employers to fire employees for attending the protests?

Generally

Generally, yes. Private employers can generally fire employees for any reason or no reason at all unless it conflicts with some established law or public policy (we call this "at will" employment). By now, you probably already know the lawyerly caveat you're about to get here . . . but, it depends. In fact, this may be one of the most convoluted issues ever to grace this fine blog.

NLRA

Why isn't this like the Google memo guy (which I analyzed here). Google memo guy was working with his co-workers to address the terms and conditions of his employment with his employer ("protected concerted activity" under the NLRA). I have heard nothing to suggest that the Charlottesville protesters were engaged in this sort of protected activity. Also, as Jon Hyman notes, other exceptions may apply.

"Just Cause"

However, there are a few situations that strike me as a little dicier. For example, many employees have individual employment contracts or union collective bargaining agreements that require "just cause" for termination. The "just cause" determination is very case-specific and varies a little based on jurisdiction.

It's usually harder for the employer to establish just cause for a termination based on off-duty conduct. To give you a sense of what's required, Pennsylvania looks at these factors:
First, the nature of the job is an important consideration; an employee in a 'sensitive position' may be subject to dismissal if only to avoid the appearance of impropriety whereas an employee in a non-sensitive position may not . . . . A second relevant factor is whether the conduct in question demonstrates a lack of judgment that erodes confidence in an employee's character . . . . A third factor concerns safety. An employee whose job it is to protect the safety of others is expected to behave in a manner consistent with this goal even while off duty.
City of Phila. v. City of Phila. Civil Svc. Comm'n. Employers must also establish a "nexus" between the off-duty conduct and the employee's ability to perform the job. Established employee policies come into play too.

So, I really can't provide you with a blanket rule, because every situation is different. What job does the employee have? What was (s)he actually doing? Each situation requires individualized analysis, and we may see different results depending on whether the employee was a klansmen punching someone or just some gawker; a neo-nazi or some sort of free speech activist; or maybe just some poor parent who picked a *really* bad weekend to take their kid on a college visit to UVA. The facts matter. And, of course, don't get the wrong guy (example here).    

Free Speech

Private employees generally don't receive First Amendment protections in employment. However, public employees do. Broadly speaking, public employees have a right to speak on matters of public concern while acting as private citizens. Public employers are generally prohibited from retaliating against public employees for First Amendment protected speech. However, once again, this is a complex area of the law - I'm just throwing out some general considerations.

State Laws

As usual, I present this with the caveat that states have myriad laws that I'm simply unfamiliar with. For example, the D.C. Human Rights Act prohibits employment discrimination based on political affiliation; Colorado prohibits employment termination for lawful outside-of-work activities; and Connecticut applies something like First Amendment free speech protections even to private employees (ask Dan Schwartz - I don't know anything about it).

Conclusion

Somebody could write an entire book on all of the legal issues raised by firing employees who attended Charlottesville. Most of the time, employers can go ahead and pull the trigger; but, there are a ton of mines in that field.