Q: We were shocked to learn that two of our employees had traveled to Washington, D.C., to take part in the Jan. 6 Capitol building riots. Both had filled out leave slips mentioning travel, and one had left two days before the other. When we asked each, “where to?”, both had said, “Washington.” We thought that meant Washington state, and reminded both to bring back negative COVID tests.
We learned the truth in a Zoom call last week when other employees voiced their disgust at the riots. First one and then the other of these two employees defended the rioters, saying, “it wasn’t like that.” Since many of us had seen the footage of what took place, none of us bought their arguments that the media had distorted things. The discussion grew heated and we had to end our Zoom meeting.
The riots sickened us, and we want these two employees out of our workplace. We have a business to run and their presence on our team will lead to continued disruption. How do we proceed? What do we have to watch out for?
To cool things down at your workplace, place your two employees on administrative leave. Firing is a major decision; you want to make sure you act fairly and have the facts needed to defend your decision, should you need to.
Private sector employers can legally fire employees who participated in the illegal Capitol invasion; many have already done so. The rioters trespassed. Many looted and acted violently.
Investigate what each employee did in Washington, D.C. You can do this by interviewing the employees, by viewing the video records available through news outlets and social media platforms, and through your record of what was said in the Zoom meeting. Their “it wasn’t like that” statements appear to signal some level of first-hand knowledge.
What happened in the Zoom call also comes into play. During the call, did either employee make racist, discriminatory, or hateful comments concerning others’ race sex, or sexual orientation?
Do you have evidence from what you’ve learned through social media that either employee violated your employment policies against harassment or discrimination? Some rioters wore T-shirts with slogans that included “Camp Auschwitz”; others brandished nooses and weapons. If either employee engaged in these actions, it could signal discriminatory bias, make other employees uncomfortable, or potentially harm your company’s reputation, giving you a legitimate reason to terminate.
Alaska is an employment at-will state, giving you the right to fire an employee for any or no reason, as long as you don’t discriminate, retaliate or otherwise violate public policy. While you can’t fire an employee for discriminatory or retaliatory reasons, if either or both of these employees broke the law, violated workplace policies, engaged in violent speech or conduct that signals a propensity for violence that threatens other employees or disrupts your workplace, you can terminate them.
The situation isn’t as clear-cut if your employees lawfully exercised free speech by taking part in a peaceful political rally or protest or were innocent bystanders pushed forward by the mob, making it appear as if they supported the chaos. In that case, you need to tread carefully and may want to consult with an attorney.
Public policy might come in to play if either termination counters your employee’s statutory or contractual protections. If your employees are union members, they may have protection through clauses in their collective bargaining agreements that require “just cause.” Their union may argue that the employee’s actions had nothing to do with the workplace.
If either employee has an employment agreement or your company’s corporate offices are in another state, check with your senior management or HR officer to learn if your actions might fall under their jurisdiction.
Laws in California, Colorado, Louisiana, New York, and North Dakota prohibit employers from firing or retaliating against employees for off-duty lawful activity.
Employees who participate in peaceful political protests are protected by law in California; Colorado; Guam; Louisiana; Minnesota; Missouri; Nebraska; Nevada; South Carolina; Utah; West Virginia; Seattle, Washington; and Madison, Wisconsin.
Laws in the District of Columbia, Illinois, Iowa, Louisiana, New York, and Utah; Puerto Rico; the U.S. Virgin Islands; Broward County, Florida, and Urbana, Illinois prohibit employers from discriminating against employees based on their political activities.
Finally, you appear to be a private sector company; public sector employees have constitutional First Amendment rights and Connecticut extends these protections to private sector employees.
So, investigate, gather the facts, and make a final decision.