After the Capitol Hill Riot: An Employer’s Guide to Employee Speech
by Lisa A. Krupicka
The nation has been shaken by the events at the Capitol on January 6, 2021, as a large crowd of demonstrators violently clashed with the Capitol Hill police and forced their way into the Capitol building while Congress was in session, causing widespread physical damage and personal injury and necessitating the emergency evacuation of members of Congress and their staff in order to keep them safe. After the riot was brought under control, many employers had only to follow the news or social media to find that some of the rioters were their employees.
It’s easy enough to fire an employee for committing a crime, but what about other employees who were not physically present but espouse, often loudly and publicly, the same views that spurred on the rioters? Employers need to know what they can and cannot do to address this growing concern in many workplaces. Here are some frequently asked questions:
Q: Does firing an employee for advocating the violent overthrow of the government violate the employee’s free speech rights?
A: No. Advocating for the violent overthrow of the government is actually a federal crime and is not protected by the First Amendment. So even for public employers, whose decision to terminate an employee may implicate free speech rights, there is no protection for such conduct.
Q: What about speech that may not explicitly call for the violent overthrow of the government, but falsely accuses government officials of subverting the voting process to deny President Trump re-election?
A: For public employers, the First Amendment requires an analysis of whether the speech in question is made by the employee as a citizen in furtherance of the discussion about a matter of public concern. If so, the employee’s free speech rights will be implicated and employers risk legal exposure for a termination based solely on the employee’s statements on this topic, even if the employee’s statements are false.
For private employers, a termination decision based on something an employee says never implicates free speech rights because the language of the First Amendment, i.e., “Congress shall make no law … abridging the freedom of speech,” refers only to decisions made by the government, not private employers. Private employers are constrained by the “concerted activity” provision of the National Labor Relations Act (NLRA), but falsely claiming the election was stolen does not relate to working conditions or labor organization and so would not be protected. Whether it’s a good idea or not is discussed in more detail below.
Q: I have an employee that is completely obsessed with the “Q Anon” conspiracy, talking about it frequently at work and posting about it during working time. Can I tell the employee to stop and fire him if he won’t?
A: Yes. Employees who spend a noticeable amount of working time doing non-work activities can be disciplined or terminated if they will not stop engaging in the non-work activities.
Q: What if an employee doesn’t talk about Q Anon at work or post about it during working time, but I’ve learned that she is preoccupied with it on social media during her non-working hours?
A: In theory, there is nothing in the law that prevents a private employer for making a value judgment about what an employee says on social media (outside of topics protected by the NLRA) and then acting on that judgment, but an employer that is considering doing so should think long and hard about it. For the most part, it is frankly none of an employer’s business what its employees think or do outside of work and the employer must have a pretty good business reason to discipline or terminate an employee for such behavior if it wants to keep a talented and engaged work force. Moreover, there is plenty of speech that is so closely identified with an employee’s race, sex, religion, national origin, or other protected characteristic that punishing an employee for that speech can be tantamount to discrimination or retaliation.
On the other hand, topics like Q Anon do not implicate the protected characteristics of any employee and there is a fairly widespread public consensus that it has become a dangerous and destructive force in our nation. If an employee’s social media presence is also closely tied with his identity as an employee of your company, there may be a valid business reason to address such conduct. But if the employee merely posts about it a lot on his own time, an employer must decide if it wants to put itself in the position of policing employees’ private conduct, whether it be “work the plan,” “stop the steal,” or some other controversial topic, a time-consuming and potentially risky business to wade into.
The employment team at Burch, Porter & Johnson is here to answer any questions you may have about employee speech in and out of the workplace.