Can companies fire pro-Trump rioters? It’s complicated

January 9, 2021, 5:00 PM UTC

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After hundreds of Trump supporters rioted this week inside the Capitol, employers have started to fire some of those who took part.

On Friday an Illinois-based real estate brokerage said it had terminated one agent who participated, adding that the firm “does not condone violence, destruction or illegal activities.” Another company in the marketing space, Cogensia, fired its chief executive and said in a statement that the executive’s actions were inconsistent with its “core values.”

But just because a worker rioted, or attended the protest preceding the riot, doesn’t necessarily mean that an employer can fire them. As Eve Klein, the head of the employment law group at law firm Duane Morris, explained, companies must navigate a web of federal, state, and local laws before they can simply tell a worker, “You’re fired,” as President Donald Trump would say.

Here are some considerations companies must take into account. A key takeaway is that the legal considerations can be complicated.

Did the employee break the law?

For companies that operate in states like New York, California, and Colorado, management can’t fire workers who engage in lawful, political-related “off-duty activity” such as a protest. The key word is “lawful,” because in the case of the recent Capitol riots, dozens of people have been arrested for assaulting officers, stealing property, and unlawfully entry.

A company could argue that an employee who unlawfully entered the Capitol could be “unhinged” and is therefore a potential safety risk to co-workers and should be terminated, Klein explained.

Meanwhile, protestors who did nothing illegal could avoid punishment if they live and work in cities or states where laws protect workers from being disciplined for extracurricular political activity.  If the workers don’t live in a protected state, they are out of luck.

And if they haven’t been convicted of the crime, employers can still fire them, said Brian Kaplan, the head of the employment practice for law firm DLA Piper.

“If you are in a horrifying drunk driving accident, the employer doesn’t have to wait to see how that trial ends up two years from now,” Kaplan said.

What about workers who embarrass an employer?

That depends on the employment contract, Klein said. Some companies have employees agree to bring no “reputational harm” to their business, she said, likening the circumstance to how some companies cut their sponsorship deals with Tiger Woods during the golfing star’s public scandals.   

In the case of the rioters, “Some were wearing badges of their employers,” Klein said. “They were bringing their employers to it.”

Companies cannot fire workers for merely being pro-Trump, said Kaplan. Additionally, if a company’s employee happened to be at the riots, management needs to consider the circumstances; the worker could have been an innocent bystander who was unfortunately captured on camera, making it appear as if he or she supported the chaos.

Ultimately, workers should realize that in many cases, they are at-will employees, and if they choose to attend a rally and hurl racist or sexist comments, for instance, they do so at their own peril. On the flip side, if they work at a company that tolerates that kind of behavior, they could be in luck.

“If you work for a hedge fund manager who is pro-Trump, you might get a raise if you go to the rally,” Kaplan said in jest.

What if the rioter is a union member?

Union members may be protected from retribution at work by their collective bargaining agreements, because there must be specific examples of “just cause,” Klein said. Although the worker may have assaulted someone during the riot, the employee’s union could argue that they only “hurt someone in connection with the rally,” she said.

“The union can say that had nothing to do with the workplace,” Klein said. 

What about recruits who attended the riot?

For cities and states with so-called ban-the-box laws, companies can’t decline to hire someone because of their criminal history. Employers must make a job offer before asking about their criminal backgrounds. Companies can then analyze whether a past crime makes a recruit a risk. Job candidates can review that analysis.

Therefore, rioters in the middle of a hiring process have some protections, as long as it’s a state with a ban-the-box law. Management would still have to go through the required legal analysis before taking action. While this may seem like simply delaying the inevitable, it blocks companies from instantly removing such a candidate from recruitment.

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