On August 8, former Google engineer James Damore reportedly filed a claim with the National Labor Relations Board, days after the company let him go amid an outcry over a memo he’d written criticizing Google’s diversity initiatives.
Later this month, groups of protesters, including those who publicly identify with white nationalist groups, engaged in violent clashes at the University of Virginia, in Charlottesville. Internet users swiftly tried to identify participants from photographs apparently depicting violent acts, then set about notifying their employers of their activities. In one case, a University of Arkansas employee was erroneously identified and a petition for his firing was launched, then later rescinded.
What employees do their own time usually doesn’t interest employers, as long as workers aren’t violating the law or company policies. But sometimes employees’ controversial views come to light in very public ways. Which raises a question some companies now find themselves grappling with: Can you–and, more important, should you–fire them over those views?
Related: James Damore’s Legal Case Against Google Isn’t So Clear
Gaps And Gray Areas In Worker Protections
The answer isn’t exactly clear, says labor and employment attorney Nannina Angioni, a partner at the law firm Kaedian LLP. Most private-sector workers are “at-will” employees, meaning that they can be fired without warning for any reason, unless local, state, or federal laws explicitly prohibit it. Yet some of those laws leave still companies wading into uncertain territory when deciding whether to fire an employee based on controversial beliefs.
For starters, the National Labor Relations Act (NLRA), enacted by Congress in 1935, protects certain forms of speech, both at and outside of work, especially forms of speech that may be seen to relate to employees’ rights. But precisely what this covers is tricky to define.
Evan White, cofounding partner of White Harris PLLC, which specializes in employment law, gives one hypothetical example: Imagine that “someone took a strong view on immigration, and engaged in a lengthy dialogue on how immigration is hurting this company, immigration is hurting this country, and in some way how diversity and immigration affected pay policies internally–or perhaps [said], ‘My supervisor is a member of this category, and I take issue with their management style.'” Even though each of these political positions is distinct, says White, the fact that the employee raised them in the same string of thought could qualify that controversial viewpoint as “advocacy,” an employee right that’s protected under federal law.
Protections vary by state, too. New York and Colorado, for example, don’t allow employers to hire and fire people for engaging in lawful activities off of company property on their own time. And California prohibits employers from taking action against employees for their political affiliations and activities, “such as running for office, or fundraising, or certain recreational activities,” White explains.
Much of the public debate around the Charlottesville protests centered around the First Amendment, which many employees think protect them from losing their jobs due to outside activities. According to Aimee Delaney, partner at Hinshaw & Culbertson LLP and leader of the Labor and Employment Practice Group, that’s not exactly the case. The First Amendment protects workers against government action because of their beliefs, protected speech, and certain actions, Delaney says, but it doesn’t protect workers from many employer actions. “I think a lot of employees either don’t know that or lose sight of that,” she says–“that they don’t have those rights when they walk into the workplace.”
Deciding When To Take Action
Delaney cautions companies against firing people “willy-nilly” for their beliefs, citing the potential fallout for company culture and morale, among other reasons. But when employees’ speech or actions start to affect the workplace, there could be more risk in doing nothing, she says.
This may have been a worry that contributed to Google’s decision to fire Damore. For instance, if an employee speaks out publicly against women or people of color, an argument could be made (as at least one former Googler did about Damore) that the employee is creating a hostile work environment–even if those beliefs were conveyed outside of work, Delaney says. Angioni gives another example: “If you have an employee who is publicly touting on Facebook, on social media, that they are part of a neo-Nazi movement, and your current employees feel harassed or intimidated or unsafe in their work environment,” many companies will feel compelled to take action.
That’s especially true if an employee who’s known to hold discriminatory views about a certain group later supervises someone from that group, since it gives their employer cause to question the choices the staffer has made about hiring, promotions, and the like. Plus, in cases where other employees’ safety is thought to be at risk because of an employee’s controversial views, an employer could actually be liable for not removing the employee to protect others in the organization from harm.
Revisit Company Policies And Procedures
Anytime an employer is deciding how to deal with an employee’s controversial views, that’s a great time to review employment agreements and policies, White says. Define explicitly what you won’t accept. “You should be looking for conduct that is either very counter to your corporate mission and corporate values or that interferes with employment–for example, if people are bringing their controversial views into the workplace [and] if it is done in a way that is harassing and it is a potentially immoral practice,” he explains. If your current policies provide no protection for your company or no guidance on what’s allowed and what isn’t, consider revising them to make that clear.
And it’s important that the rules apply to everyone, Delaney adds. “An employer always has to be thinking about being consistent in its application [of workplace policies] so that it doesn’t wind up with a discrimination claim” arguing that the employer is “treating somebody different internally,” she says.
Lastly, of course, all three attorneys agree that, when in doubt, it’s always best to consult with a knowledgeable counsel to choose the best action to take to protect your business from liability.
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