Help! I Just Saw My Employee on Television Storming the Capitol. Can I Fire Him?
January 6, 2021 was already going to be a momentous day because a joint session of the United States Congress was set to count Electoral College ballots, officially signaling President-Elect Joe Biden’s victory over President Donald Trump in the highly contested 2020 presidential election. The momentous day turned tragic as pro-Trump protestors breached multiple Capitol Police perimeters and occupied, ransacked, and vandalized the United States Capitol for several hours. Like any newsworthy event of the 2020s, millions around the world watched television cameras, smart phone images, and videos of the violence unfold. In the following days and hours, many of the perpetrators were identified through social media and employment lawyers got the call: “Help! I just saw employee x on Fox News running through the Capitol. Can we fire him?”
An employee of Navistar Direct Marketing (“NDM”), a Maryland company, was terminated after being photographed wearing his company badge inside the U.S. Capitol during the security breach. NDM put out a statement:
“While we support all employee’s right to peaceful, lawful exercise of free speech, any employee demonstrating dangerous conduct that endangers the health and safety of others will not longer have an employment opportunity with [the Company].”
Congensia, a tech company based in Illinois, terminated its CEO after he was charged with violent entry and disorderly conduct in federal court for his conduct on Capitol Grounds. Congensia announced that its decision was based on the CEO’s actions being counter to Congensia’s core values of “integrity, diversity and transparency…”
Even lawyers who were part of the protests managed to get the axe. In Texas, Goosehead Insurance announced that it parted ways with its associate general counsel and director of human resources after a video shared to Instagram showed him attempting to breach the Capitol. Goosehead put out a statement that while they respected their employees’ right to vote and express themselves politically, “[the former employee’s] actions are not reflective of [Goosehead] company culture or values…”
Here in Virginia, a private employer may terminate an employee for almost any reason. If an employee was seen on social media trespassing at the Capitol, a crime, that employee may almost certainly be terminated. One common misconception is that the First Amendment to the United States Constitution protects private sector employees’ speech; it does not. The First Amendment only protects individuals from government action. A private sector employer could terminate an employee just for taking part in a violent protest. Yes, depending on what you post, your Parler account could get you fired.
Employers should still tread lightly when it comes to terminating employees for non-criminal actions related to the January 6, 2021 Capitol riot. Consider Virginia’s sweeping new Whistleblower Protection Law in this hypothetical:
Karen works in human resources at a large corporation in Northern Virginia. Karen drives a pickup truck with several pro-Trump and pro-gun bumper stickers. Other than her vehicle, Karen does not discuss politics at work and is a good employee. Karen was not at the January 6 riot because Karen was working onsite at one of her employer’s Northern Virginia locations. Karen’s employer recently learned that the FBI wants to question Karen concerning ultra-rightwing posts that she has interacted with on Parler, a microblogging and social networking service popular with conservatives and conspiracy theorists. Karen’s employer wants to get ahead of any potential negative publicity and fires Karen for participating in the FBI’s investigation. Does Karen have a claim?
Karen potentially has a claim under Virginia’s Whistleblower Protection Law, Va. Code § 40.1-27.3, which prevents employers from retaliating against employees who are “requested by a governmental body or law enforcement official to participate in an investigation.” The employer could argue that, because the FBI investigation is totally unrelated to the employer or Karen’s work there, that Karen’s activity would not be protected. § 40.1-27.3 is so new that there is no case law interpreting its scope. Depending on the nature of the Parler posts that Karen interacted with, however, the employer might not face any risk terminating her if the posts are violent or contrary to employer’s social media policies.
But be careful. If you terminate some employees due to social media posts and attendance at political protests but not others, you could easily fall into prohibited activity. For example, if women are fired for attending Stop the Steal rallies and related social media posts but men are not, that could result in a sex discrimination case.
With more potentially violent protests being scheduled between now and President-Elect Biden’s inauguration and more violent social media posts than ever, employers will begin to face what used to be more of an academic question. Extreme, violent social media posts are here to stay. Buckle up.
Broderick C. Dunn is a partner at Cook Craig & Francuzenko, PLLC. He focuses his practice on business and employment litigation. Follow him on Twitter @broderick_dunn and connect with him on LinkedIn @https://www.linkedin.com/in/broderickdunn.