Can Employers Fire Employees for Off-Duty Activities?

Like many people around the world, I watched the events of January 6th unfold at the U.S. Capitol with a mix of shock and disgust. Never in my lifetime could I have imagined what I saw play out on television; mobs of people angry about the results of the recent election rampaging through the seat of our government smashing windows, kicking in doors, damaging furniture, terrorizing legislators, attacking members of the press, and assaulting police officers, two of whom lost their lives as a result, together with at least four protesters. While those participants dressed up in bizarre costumes, face paint and/or camouflage got much of the press coverage, they were accompanied by politicians, corporate CEOs, businesspeople, teachers, firefighters, and yes, even lawyers.

After proudly posing (without face masks) for photos, giving interviews, and posting their exploits to their social media pages, many of these people are now finding themselves in big trouble, and not just from the FBI and Capitol Police. Large numbers of these participants have been summarily fired from their jobs to boot. Among other widely-reported terminations, Cogensia, a data analytics and marketing firm, fired its CEO, Bradley Rukstales after learning he had participated in the riot. In a statement, the company explained that “This decision was made because Rukstales’ actions were inconsistent with the core values of Cogensia. Cogensia condemns what occurred at the U.S. Capitol on Wednesday, and we intend to continue to embrace the values of integrity, diversity and transparency in our business operations, and expect all employees to embrace those values as well.”

Former CEO Rukstales is far from the only person who drew his employer’s ire. Another marketing company, Navistar, terminated an unidentified employee after he was photographed at the riot wearing his company ID badge. A real estate brokerage firm in Chicago let go an agent after being inundated with negative social media concerning her online boasts about “storming the Capitol.” And lawyer Paul Davis was booted from his position as associate general counsel with a Texas insurance company, which indicated in a memo that it was “surprised and dismayed to learn that one of our employees, without our knowledge or support, participated in a violent demonstration at our nation’s capital yesterday.” The memo continued: “After investigating the situation, we decided to part ways with this individual. While we support our employees’ right to vote and express themselves politically, we do not condone violent or illegal acts. This one former employee’s actions are not reflective of our company culture or values, and we are disappointed with his behavior.”

The foregoing might have some wondering “are these terminations legal?” What about the First Amendment, and its guarantee of free speech and the right to assemble? Unfortunately for the rioters, the First Amendment only protects them against action taken by the government in response to their speech, not action by private employers. Note that there are various state and local laws that protect employees against adverse action by their employer taken in response to lawful off-the-clock activities. New York and California have such laws, as do New York City, San Francisco and other cities. As an example, New York’s Labor Law contains what is commonly referred to as the “Legal Activities Law.” This law prohibits discrimination against an employee based on their off-hours political activities, legal use of consumable products, legal recreational activities, or membership in a union. Thus, a New York employer cannot lawfully fire an employee simply because the employee attended a Trump rally on his own time and the employer disagrees with Trump. Nor may a New York employer fire an employee who smokes during her lunch break, drinks alcohol on the weekend, plays tennis or joins a union, since all constitute lawful activities. In contrast, what occurred at the Capitol in early January was for the most part not legal or lawful political activity, but rather an ugly and deadly riot. Under such circumstances, employers need not tolerate employees whose conduct does not comport with their standards and value, nor must they indulge having their names and reputations associated with an employee who engages in riotous and/or unlawful conduct.

What about those employees who were simply there, standing on the sidelines while events unfolded? Can they be fired even if they didn’t engage in criminal conduct? If their only crime was the misfortune of getting photographed while holding a “MAGA” sign? How about those employees who weren’t even at the Capitol, and merely posted approval of the incident to their personal social media page? As mentioned above, if the employer is located in a jurisdiction that has a law protecting lawful political speech or expression, action taken against an employee who engages in such conduct may well constitute a violation of the law. Again, the conduct must be lawful in order to be protected. As for those employees not protected by a state or local law protecting political activities, their employers are free to discharge them for any non-discriminatory reason, and in those jurisdictions that includes disagreement with the employee’s political views.

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Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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