Should an employer fire a worker that engages in extreme off-duty activity or speech?

By Michael Burns, courtesy of SBAM Approved Partner ASE

With the racist rallies in Charlottesville resulting in a death and a multitude of injuries, the nation is taking a hard look at hate speech and those that express extreme or controversial views on issues of politics, race, gender, ethnicity, religion or any social or belief issues that polarize. This introspection is entering the workplace as employers ask whether they have to tolerate or even employ someone that holds and expresses extreme views – even if not communicated in the workplace. As the media reported last week one person that was identified as a participant in the Charlottesville rallies was fired from his job when he returned to work.

For the sake of argument, extremist activity or speech, though open to subjective interpretation, is defined as a supporter or advocate of extreme doctrines or practices. One dictionary defines an extremist as one who “favors or resorts to immoderate, uncompromising, or fanatical methods or behavior, especially in being politically radical.” Also, for the sake of argument and this article, the speech does not rise to the level of a crime per se. If it does rise to the level of a crime or causes one, this would allow an employer to act on the person’s employment.

Practicing a policy whereby an employee’s off duty behavior that is not illegal is none of the employer’s business is no longer prudent. Whether an employee is posting extremist views on social media or attending radical political or social events, employers may have to take action against employees that engage in these activities, especially if it is causing issues in the workplace.

So what are the legal issues for an employer and what rights does the employer have to address these situations? 

Employers in in the private sector have a greater latitude to act against an employee engaging in the above activity. Public sector employers have to watch what they do in response to employee social or political activism. Constitutional protections may come in to play when federal, state or municipal employees engage in freedom of speech and association. At last week’s ASE Employment Law Workshop, attorneys were asked whether a private employer could just fire someone absent a direct workplace behavior, and the consensus of the employment and labor attorneys was one of definite caution. Despite having an At-Will policy, the attorneys cautioned that though an employer had the right to take adverse employment action against an employee, a terminated employee could use a protected class discrimination argument to take the employer to task.

Also, employers need to be aware of certain state laws in some jurisdictions. New York protects employees from adverse employment actions if the off-duty speech is “lawful.” California and Colorado as well as some other states have various statutes protecting employees from adverse employment action based upon participating in “radical” politics or activism. 

And what if the speech or actions of a worker have anything to do with the workplace? The National Labor Relations Act (NLRA) may apply then. The NLRA’s reach was extended quite a bit under the Obama Administration. One recent decision by the National Labor Relations Board extended employment protection to a picketing worker that had made racist comments toward African-American replacement workers. And what about a worker that makes a “complaint about a black worker being given more opportunities that white workers in the name of diversity.” Jonathan Segal with Duane Morris LLP states employers have to “look at the words, not necessarily the motivation.” The words, he advises “might be protected concerted activity under the National Labor Relations Act.” (Law 360 8/15/2017).

Defamation is another area that bears concern when acting against an employee that allegedly participates in a demonstration. It is recommended a reasonable investigation be conducted when an allegation of racism, or any allegedly slanderous or libelous category, is made. If the allegation proves unfounded, but the statement was acted on to the detriment of the employee, the parties could face defamation and other ancillary tort liability.

Employers will have a hard time controlling employee thoughts and outside behavior. But if a person’s extreme or radical beliefs and ideas find their way from the outside world into the workplace, employers will have to engage with employees on this issue and take possible action. Further, properly stated policies prohibiting discrimination and bullying may help when engaging with employee’s whose extreme or radical beliefs and/or activities have a negative impact on the organization.