You Can Take Action Against Employees For Their Political Activism

After white supremacists descended upon Charlottesville, Virginia, social media lit up in response. In the days that followed, several marchers were identified and lost their jobs in the process. As the events in Charlottesville showed, political extremism in the US is on the rise.

This was far from the only instance of hate groups in the news, but certainly was the most visible. So, the $64,000 question is what does it all mean for the workplace? How far can an employer truly go when it comes to firing or disciplining someone for expressing their political beliefs outside of the workplace?

The general rule is employers shouldn’t be taking action against employees for their political beliefs, but sometimes with very extreme affiliations such as neo-Nazi and KKK groups, there is the potential for extremism to spill over into the employment relationship and could result in job-related misconduct, such as harassment of employees who are in minority groups. Even the fact that employees know that this person is a member of that type of group may create a lot of anxiety and potentially start to tread into the area of a hostile work environment.

My recent XpertHR podcast explores those tough questions with North Carolina management-side attorney Robin Shea, who authors the Employment & Labor Insider blog and practices with Constangy, Brooks, Smith & Prophete.

A Twitter account with the handle @YesYoureRacist actively sought the identities of Charlottesville rally attendees, and the strategy worked in getting a Berkeley, California restaurant worker to resign after people started contacting his employer to urge his dismissal.

Private Employers Can Fire For Political Speech

Private employers generally can fire at-will employees based on their political beliefs. After all, the First Amendment does not apply to them. And as Shea notes, there are very good reasons to terminate a neo-Nazi employee whose affiliation could spill over into the workplace, lead to harassment and create anxiety among other employees.

However, not all situations are quite so clear-cut.

“I would not recommend terminating an employee for political affiliations unless it was a very extreme situation,” says Shea, who adds that employers need to be careful how they define hate groups.

“I’m not talking about evangelical Christians or people with traditional beliefs. I’m taking about members of really bad groups,” Shea adds. “Employers will be sorry in the long run if they try to shut down everybody who has a dissenting view. We don’t want employers to be thought police.”

Social Media Posts Could Lead to Termination

What happens if an employee posts a link to, say, a white supremacist publication on their Facebook page? They’re not necessarily marching anywhere, but their co-workers and others see the post. Is that something that could be grounds for termination or discipline?

It could be, depending on the circumstances. Employees should be careful about what they post, especially if people they work with are Facebook friends because they’re going to see everything and it’s possible they’ll take offense at something. And if you post a link to a supremacist organization and you have African-American co-workers who see your Facebook posts, it can spill over in the workplace and create a problem. And it could put someone’s job in jeopardy.

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For the group to qualify as a hate or extremist group, questions to ask include:

  • Does the group advocate violence?
  • Does it advocate violent overthrow of the US government?
  • Does it preach the biological inferiority of certain races?

States Protect Employee Activism

Some states, including California and New York, limit employers from taking action based on an employee’s political affiliations. Connecticut extends free speech protections to the employees of private employers.

Additionally, several other states ban employers from adopting any policy or rule that prevents an employee from running for political office or from taking action against them. So if your mid-level manager decides to run for county dog catcher on the Neo-Fascism ticket, these laws merit consideration.

Shea notes, though, that members of management are legally “the company,” so there may well be risks if the employer fails to act, whether it be loss of business, damaged employee morale or something else.

In all, roughly 30 states generally protect employees who engage in lawful off-duty behavior, including for their political activity. However, some of these laws do have exceptions, so they should be reviewed.

Another key factor to consider is whether the employer is subject to a collective bargaining agreement that protects employees’ political affiliations or requires that any terminations be for “just cause.” Shea advises employers always to consult the CBA before taking action and to get the union’s buy-in whenever possible.

For more insights on employee political extremism and other off-duty conduct, listen to the podcast or read this article on the subject.

David Weisenfeld is the legal editor for the preemployment background check, job advertising, and interviewing and selection content in the recruiting and hiring section of XpertHR USA. Prior to joining XpertHR, David served as U.S. Supreme Court correspondent and editor-in-chief of a nationwide legal news service, as well as co-anchor of the company's newscasts and editor of its employment law product. David's work also has appeared in the ABA's Supreme Court Preview, Employee Rights Quarterly, USA Today and The Washington Times.

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