The recent white nationalist rally that occurred on August 12th, in Charlottesville, Virginia caused a job termination for a rally participant, after pictures of him marching in the rally were posted on social media. Recent hate group activities have raised the question, “Should an employer terminate an employee who participates in such activities?”
Unfortunately, the answer to that question isn’t clear. Attorneys are recommending a case-by-case analysis. There are mitigating factors that determine how to proceed. For example, it depends in which state the worker is employed, what risk, if any, has this participation affected the company, and whether workplace policies have been violated.
The First Amendment’s protections of freedom of speech apply only to government, not to private employers. Private-sector employers do not have to allow employees to voice beliefs in which other workers may find offensive. However, employers must be certain that this is not in violation of the employee’s civil rights. Government employers, however, may not be able to fire employees who participate in protests. This can become extremely complicated as the individual state laws must also be considered. In some states, employers are prohibited from discriminating against employees for engaging in lawful conduct when they are off duty. Some employers will fire a worker anyway, even if it poses risks to do so, claiming that the employee’s off-duty activities breaches with the employer’s workplace policies. This can be further upsetting and disruptive to the workplace if pictures of an employee participating in such a rally begin to circulate around the office. Tensions and problems are certain to arise, as a result.
An employer has the right to expect its employees to contribute to an environment of mutual respect. By contrast, when dealing with an employee who has extreme political and radical views, that other employees and your customers oppose, it may be best to terminate the employee. As an employer, you must examine what are your risks of being sued for not firing this employee with the extremist views? And what impact will this situation have upon your business?
This is a tough call and each situation must be handled on a case-by-case basis. It is wise to seek the guidance of those who are well-versed in difficult workplace situations. It is also a good time to review your company policies in your handbook. Your Workplace Violence Policy must be specific regarding firearm possession on company premises, include information about bullying and have concrete employee safety guidelines. In addition, your Communications Policy must go beyond Internet and email monitoring and include all facets of social media (Facebook, Instagram, Twitter and blogging). A cell phone policy is also necessary. Employee safety policies must be reviewed and revised often, especially in our ever changing world. What safeguards do you have in place for your business?