Can You Fire Someone for Attending a Rally of Racists?

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Jon Steingart

A campaign to publicly identify participants in white supremacist rallies has been met with calls for employers to fire the protesters.

That’s the dilemma Top Dogs in Berkeley, Calif., faced after Twitter user @YesYoureRacist shared a photo it said showed one of the hot dog restaurant’s employees at a demonstration in Charlottesville, Va., last weekend.

Participants carried torches and reportedly chanted “white lives matter” and “Jews will not replace us.” The next day, participants showed up carrying Nazi swastikas, Confederate battle flags, and insignia of white supremacist groups.

“On Saturday, August 12, it came to our attention that one of our employees was involved in the recent ‘alt-right’ rally in Charlottesville,” the hot dog restaurant said in a statement emailed to Bloomberg BNA Aug. 14. The employee “chose to voluntarily resign his employment with top dog and we accepted his resignation,” the statement said.

An employee’s off-duty conduct can force an employer into a public relations crisis, Samia Kirmani, a principal in Jackson Lewis P.C.'s Boston office and co-leader of its Workplace Training Practice Group, told Bloomberg BNA Aug. 14. How should it respond to a public outcry that it employs racists?

“Everyone’s off-duty conduct is more relevant,” Kirmani said. “It used to be that only famous people had to worry about what they did when they were off the clock, but now everybody does.” Kirmani spoke in general terms rather than specifically about anyone who may have been at the Charlottesville protests.

At-Will Makes It Easy to Fire

Employment is generally an at-will arrangement. That means it continues as long as the employer and employee want it to. On the other hand, either side can end the arrangement for any reason, except for a limited number of prohibited bases such as discrimination, free speech rights for public employees, and terms of a labor contract in a unionized workplace.

“In California there’s a law that protects employees against wrongful termination for political expression,” David Yamada, a workplace law professor at Suffolk Law School in Boston, told Bloomberg BNA Aug. 14.

“One of the questions about these laws that protect freedom of political expression is: When does that expression cross the line that an employer could terminate someone because his or her presence in the workplace becomes so distracting?” Yamada said. “I think those situations would work themselves out because under those laws a tangible negative effect on the business would allow those employers to terminate the individual.”

“On the other hand it gives employers leeway to terminate employees for actions not a lot of us would consider wrongful or objectionable,” Yamada said. “That’s one of the downsides of at-will employment from the standpoint of overall fairness.”

Tension Between State, Federal Law

Colorado’s law against firing someone who participates in a “lawful activity” outside of working hours ran into tension between state and federal law. The state’s Lawful Activities Statute doesn’t bar an employer from firing someone who uses marijuana to treat muscle spasms, the Colorado Supreme Court ruled. The user had complied with the state’s medical marijuana law, but his behavior still wasn’t lawful under federal law, the court said.

@YesYoureRacist’s posts also raise the issue of mistaken identity. The post identified a torch-carrying marcher as a professor at the University of Arkansas, leading to a Change.org petition calling for the professor’s termination. The university said it verified that the man pictured in an “Arkansas Engineering” shirt wasn’t the professor, and the petition was taken down.

It may cause public relations or workplace morale problems when an employer fires someone based on mistaken identity, but it isn’t illegal, Kirmani said. “If they were wrong in their belief, as long as they believed in good faith that that was their reason then I think that they’d be OK,” she said. The key for employers is to determine if their plan of action violates laws that address race, gender, or other protected statuses of workers, she said.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law