When Employees Engage in Extremist Off-Duty Activity: What is an Employer to Do?

There is little doubt that if an employee spewed hate-filled racist messages in the workplace or wore a Nazi swastika t-shirt to work, the employer would have justification to terminate their employment.  Even in the public sector, where employers have First Amendment considerations, it would be hard to conclude that such behavior was constitutionally protected. However, what about off-duty behavior? After the recent events in Charlottesville, and the ongoing protests and counter-protests (and counter-counter-protests) concerning hot-button social issues, many employers wonder what, if anything, they can do when they discover an employee propagating incendiary messages outside of work.

The first thing most employers and employees might ask is “What about the First Amendment?”   “Don’t we have free speech around here?”

Government employers, unlike private sector employers, must consider First Amendment issues before terminating employment for any speech or activity. The First Amendment generally protects an employee’s right to speak as a citizen on matters of public concern, but the employee’s right is balanced against a government employer’s interests in promoting the efficiency of the public services it performs through its employees. For instance, in Lawrenz v. James, a court held that a correctional officer’s interest in wearing a “White Power” t-shirt decorated with a swastika while off-duty at a barbeque was outweighed by the correctional institution’s efficient operation. So, although it’s a case-by-case determination, where an employee attends and participates in something as extreme as a white supremacist rally, the employee will likely lose First Amendment protection.

The First Amendment offers little protection to private sector employees vis-à-vis their employment. Absent an employment agreement stating otherwise or a union-contract requiring “just cause” to terminate, private employment is generally “at-will,” meaning the employer can terminate the employment for a good reason, a bad reason, or no reason at all, so long as it is not a discriminatory reason based on a legally protected characteristic.  So, while private sector employers do not have to consider Constitutional protections, private employers must still make sure there aren’t other laws that could limit the employers’ rights to discipline employees for their activities outside of work.

Indeed, at least twenty-nine states and the District of Columbia have enacted such statutes protecting employees from discrimination or retaliation based on their participation in non-work activities (such as tobacco use, use of consumable goods, and online activities such as blogging or participating in discussions on internet message boards). Georgia does not have such a statute, and the laws do not necessarily require employers to countenance bigoted conduct or incendiary speech.  But with the publicity surrounding recent high-profile events, even private sector employers are advised to thoughtfully consider adverse employment action against employees for after-hours activities.

Employers must also consider whether the National Labor Relations Act (“NLRA”) offers any protection from termination to even non-union employees engaged in off-duty conduct, and even if that conduct that propagates an agenda with which the employer (or society at large…) disagrees. While the NLRA’s focus is on the protection of unionized workers, Section 7 also protects non-unionized workers when they engage in “concerted activities for the purpose of…mutual aid or protection.”

The NLRB (the agency tasked with enforcing the NLRA) takes an expansive view of what is considered protected concerted activity.  For instance, in Cooper Tire & Rubber v. National Labor Relations Board, the company terminated an employee who yelled racist comments to a group of black replacement workers while on the picket line.  A court found that the firing was impermissible, reasoning that one of the necessary conditions of picketing is confrontation between union and non-union members. Termination for picket-line misconduct is generally prohibited unless the alleged misconduct tends to coerce or intimidate employees in the exercise of protected rights under the Act. In this case, at least according to the NLRB and the court, the employee’s statements were not violent in character, were not directed at any one individual, and did not contain any implied or overt threats to the other workers. That being said, it would be difficult for an employee involved in a rally unrelated to their work activity, such as those held in Charlottesville, to argue their behavior was protected as concerted activity under the NLRA.

Many employers would reasonably contemplate terminating an employee when their conduct harms the company’s reputation and disrupts their business. Such public actions, even if on the employee’s “own time,” could affect relationships with fellow employees, creating an actionable hostile work environment and subjecting the company to Title VII harassment or discrimination claims.  The stakes are even higher if the employee engaged in extremist activity is a manager. For example, if the manager is known to espouse racist views and then acts on them at work, the employer could be liable for those acts in a harassment or discrimination claim or a possible tort claim such as negligent hiring, retention, or supervision. The argument could be made that the employer knew or should have known of the manager’s propensities – if the company knew of the alleged harasser’s comments outside of work, then it should have known that similar comments could have been made at work.

There are many complex issues to consider before terminating an employee engaged in lawful (even if despicable) off-duty conduct. Before termination, employers should conduct an investigation to confirm the employee’s participation in the extremist activity. Do not make the decision based solely on rumors or comments made among employees or on social media. Keep in mind that if the to-be-disciplined employee also falls into a protected class, there could be a separate or inter-related discrimination claim. Prudent employers will seek legal counsel to consider all of these issues before taking an adverse employment action. As always, we’re happy to help.

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