Your Employees and Off-Duty Conduct
Picture this: you leave work on Friday and head out of town to attend a political rally. This rally is particularly polarizing, and you happen to hold the unpopular opinion. Attending press and counter protestors snap your picture and it goes viral on social media, outing you and your viewpoints. When you show up to work on Monday, you no longer have a job.
This is the scenario faced by Cole White, who worked at Top Dog, in Berkley, CA, after he was identified as a white nationalist at the recent rally in Charlottesville, VA. His face was splashed across social media platforms and his employer was inundated with demands for his termination. Initially, it was reported that White had been fired, though a statement later issued by Top Dog states he resigned voluntarily.
The situation brings up some big questions. Do employees risk termination when they express political beliefs, especially controversial ones? What rights does the employer have when faced with public outrage and, possibly, damage to their business? What is free speech and what constitutes discrimination against it?
State to State Variation
The answers are not simple, and vary from state to state. Arizona does not have a specific stance regarding this situation, therefore Arizona law will point to federal law and the 1st Amendment. In Colorado for example, political affiliation is not a protected class, the way age, race, color, religion, national origin, or disability are. Though there is a statute (CRS 8-2-108) that “… that provides that an employer cannot forbid an employee from participating in politics or from becoming a candidate, but it does not protect the individual beliefs or affiliation,” explains Dan Muffly, with Gast, Johnson and Muffly in Fort Collins.
Government employees whether local, state, or federal are more protected by the First Amendment (as long as their actions do not disrupt the workplace) than their privately employed counterparts. That being said, the Hatch Act limits certain political activity of government employees, such as wearing partisan political buttons or attire while on duty, or posting partisan comments to blogs or social media sites.
Tina Todd, PHR-CA, SHRM-CP, CHRS with SimplyHR in Fort Collins, cites C.R.S. 8-2-102, 8-2-108, which prohibits an employer from retaliating against an employee for off-duty conduct. “If the employee is at a political rally, not representing the business in any way and they are acting entirely separately from the business, especially in Colorado and other states that protect those off-duty conduct activities, it is much more likely that the employer won’t have any recourse against that action,” she says. States with legislation addressing political activities include California, Colorado, Illinois, Louisiana, Michigan, New York, South Carolina, and Utah.
National Labor Relations Act
Dan Muffly points to another law, the National Labor Relations Act (NLRA) which may be implicated in the workplace and to protect a worker discussing political beliefs. The NLRA protects “concerted activity” among co-workers, which activity affects the terms and conditions of their employment.
“So, for example, if a group of employees is discussing a candidate and how that candidate would impact the workplace, this political activity might be protected,” says Muffly. “These protections are narrow and, as you can see, would protect the employee only in very specific instances.”
Firing an employee for expressing their political beliefs is tricky and sticky. On one hand, the employees right to off-duty conduct may protect him or her from termination. On the other hand, what if their conduct damages the business they work for?
There is no easy answer.
Statutes vary from state to state, and federal legislation plays its role in how an employer can respond. In the end, it’s best to consult an employment attorney before making a decision that could change the course of your company. Please let Journey Employer Solutions know if you would like an introduction to a local attorney or HR professional for these tough termination questions.
Resources for this article are not limited, but include:
Dan Muffly, Gast, Johnson, & Muffly – http://gjmlawfirm.com
Tina Todd, SimplyHR – https://www.simplyhrpartners.com