Alt-right protests: Protected off-duty activity or cause for termination?

It’s an employer’s nightmare. An employee shows up in a video making the rounds on social media taking part in a protest that includes violent clashes and racist insults. The employer wants no association with such actions and decides to cut ties. Will there be legal trouble if the employee is fired? Possibly, according to attorneys focusing on employment matters, but a dismissal can be safe depending on the circumstances. 

The “Unite the Right” rally that took place August 12 in Charlottesville, Virginia, sparked outrage as neo-Nazi protesters clashed with counterprotesters in violence that left one dead when a man drove a car into a crowd. Two police officers also died when their helicopter crashed after being deployed to respond to the violence.

Not so long ago, an employee’s participation in such an event may have flown under the radar, but not so today. The Charlottesville protest prompted efforts on Twitter and other social media channels to identify participants and urge their employers to fire them.

State law concerns
Sometimes state laws protect employees’ off-duty conduct and can limit an employer’s response to actions by an employee that go against the employer’s culture. In California, for example, state Labor Code 96(k) protects employees engaging in lawful conduct outside of work hours and 1102 protects employees’ political beliefs.

So an employer in California is prohibited from taking action against an employee for “carrying a ‘white power’ sign” at a lawful rally, but an employer can legally terminate someone for “busting heads,” according to Mark I. Schickman, an attorney with Freeland Cooper & Foreman LLP in San Francisco. An employer that sees a video of an employee punching someone at a rally or otherwise acting unlawfully has more latitude and can lawfully terminate.

Social media campaigns such as the Twitter feed using the name @YesYoureRacist gained attention by attempting to identify participants in the Charlottesville rally and urging their employers to fire them. An employee of hotdog restaurant Top Dog in Berkeley, California, was one of the protesters identified, and he is no longer employed at the restaurant.

News outlet Berkeleyside quotes a statement from the company saying the protester, Cole White, resigned after a conversation with the employer. The statement goes on to say, “We pride ourselves on embracing and respecting all our differences and every individual’s choice to do as that person wishes within the boundaries of the law. We do not endorse hatred or any illegal conduct. It simply is not part of our culture.”

The statement also says, “We do respect our employees’ right to their opinions. They are free to make their own choices but must accept the responsibilities of those choices.”

California’s laws protecting employees’ off-duty conduct and political beliefs have their roots in protecting participants in gay pride parades and other pro-diversity efforts, Schickman said, but “the rules work both ways.”

Although California law protects employees even if their political beliefs are seen as by employers as abhorrent, he tells employers that “keeping politics out of the workplace itself is the wise route if you can do it.”

Another of the rally participants getting attention on social media is Peter Cvjetanovic, a student at the University of Nevada, who also holds a campus job. A petition drive called for him to be expelled from the university. The university president issued a statement saying the school “rejects the positions and ideology” voiced during the rally, but the university had no constitutional or legal reason to expel him or terminate him from his employment.

Deanna L. Forbush, an attorney with Clark Hill PLLC in Las Vegas, Nevada, said that because of legal restrictions on an employer’s ability to terminate, “most employers take the conservative approach, and do not terminate employment unless they have a legitimate, legal, and nondiscriminatory business reason for doing so.”

“Many employers have policies governing an employee’s off-duty conduct and require that an employee not engage in off-duty conduct that brings disrepute on, or that embarrasses the employer,” Forbush said. “However, even under such a policy, an employee’s simple participation in a public political demonstration would not ordinarily present ‘cause’ for termination unless perhaps the demonstration was abhorrent to the employer’s cause and/or mission.”

But videos showing employees engaging in violence shows evidence of a propensity for violence and could raise safety and/or negligent retention, training, or supervision, “making it impossible for the employer to continue the employee’s employment,” Forbush said.

Employer options
Many states don’t have laws protecting off-duty conduct, but employers still can face dilemmas. Larry Rector, an attorney at Steptoe & Johnson PLLC in Bridgeport, West Virginia, was involved in a case several years ago in which a West Virginia ski resort hired a woman for a high-level position and then decided to fire her because of her off-duty conduct.

The woman was married to a leader of a white supremacist group that had a compound in the state. She started making posts on the internet about her employer being a white-friendly resort, not an image the employer wanted to present. Also, the employer learned that she had a website selling white supremacist lingerie.

After learning of the woman’s background, the company wanted to fire her but worried she could sue. If she wasn’t fired, however, the employer worried about liability from having someone with her white supremacist views possibly supervising minority employees and presenting the wrong image to the public.

Rector said he told the employer it would need “to decide which lawsuit you want to defend” and the company decided it would be glad to defend the firing.

Michael Maslanka, an attorney with FisherBroyles, LLP in Dallas, Texas, said the firing of an employee for participating in a violent rally is likely legal in most states. “The question really becomes, if you’re a member of the Nazi party can you be fired? The answer is, yes” at least in most circumstances, he said.

In addition to possible problems presented by state off-duty conduct laws, religious beliefs can come into play, Maslanka said, citing a Wisconsin case from 2002 in which a supervisor was demoted after his employer learned that he was a follower of a church that degraded people of color and claimed the Holocaust never occurred. The employer said employees couldn’t be confident that he could objectively supervise minority employees because of his beliefs. A court, however, said his beliefs constituted a religion.