Law enforcement officials and amateur armchair investigators are rummaging through millions of photos, videos, and social media accounts to identify people who participated in Wednesday’s riot at the U.S. Capitol that resulted in the deaths of five people and has angrily entranced a nation ever since.
As names began to trickle in—using clues as disparate as a company ID and a self-promotional online post or simply the keen-eyed attention of friends and relatives—the question for business leaders becomes what action may be taken if their employees are discovered to have attended the insurrection in Washington, D.C.
Some companies have taken swift action and fired staffers, but whether they can do so is not always clear. Here’s a breakdown of what labor lawyers and human-resources professionals say. Yes, it’s complicated.
Can employees be fired for having attended the riot?
In a word (OK, two.): It depends.
But the bottom line is this: Breaking the law is grounds for dismissal, experts say. Any sort of law-breaking—even that which doesn’t result in handcuffs, like damaging property or trespassing—is a fireable offense.
In the case of last week’s Capitol siege, employers should consider specifics: Are the people involved at-will employees or not? What state do they work in? Are they public- or private-sector workers? And crucially, what exactly did they do?
For example, California has employment laws that protect people from being fired for political affiliations, while Montana is the only state that does not recognize employment at will, which makes it hard for bosses to fire individuals without valid reasons. In addition, government employees have protected First Amendment rights in many circumstances.
Finally, what the employee is identified as doing plays a role. Were they seen trespassing, destroying property, or roaming the halls of the Capitol, or were they merely spotted outside in the crowd?
“There is broad and long continuum between sitting in [House Speaker Nancy Pelosi’s office] and taking pictures and attending a march on the Mall in Washington,” explains Long Island, N.Y., labor and employment lawyer Domenique Camacho Moran of Farrell Fritz.
Can’t fired rioters cite the First Amendment?
Not if the free speech here is related to sedition, which is broadly defined as incitement of rebellion against the government. Kate Bischoff, founder of tHRive Law & Consulting in Minneapolis, calls that “a pretty damn good reason” for severing ties with an employee. Her advice: Fire them.
“Our companies only work when we’re in a country that has effective laws. These people were working against their employers, period,” she says. “The First Amendment gives you the right to say what you will, but it doesn’t protect you from consequences.”
Incendiary speech or activity also brushes up against other issues in a workplace. Let’s say a staffer parks a car in the employee lot that has an anti-LGBTQ or Proud Boys bumper sticker on it. Other workers pass by it and know that person’s opinions, which could make marginalized or underrepresented employees feel harassed. Employers have to decide what their tolerance levels are.
“I have an obligation under the law to provide a safe workplace,” Bischoff points out. “You don’t have to say, ‘Please don’t storm the Capitol’ to be terminated for storming the Capitol.”
Do employees understand company policies?
Not always, and this is why it’s important for companies to be prepared, warns Joey Price, founder of Jumpstart:HR, a Baltimore consultancy for small businesses and startups. Employee handbooks need to outline what is and is not allowed in the workplace and beyond. A business doesn’t have to list “no rioting” among its rules to fire a person for doing exactly that.
“The world is watching how we respond as a country,” he says. “Our employees are watching how we respond at work.”
What if the person called in sick that day and then went to the Capitol?
Lying is generally a fireable offense. “Most organizations have some type of code of conduct that asks people to be honest in their dealings with the organization. If that was a flat-out lie, it could be terminate-able for someone,” says Jeremy York, president of InvigorateHR in Indianapolis.
Couldn’t a company fire a person for attending, but call it something else?
They often do. According to Laurie Ruettimann, a Raleigh, North Carolina-based HR consultant and the author of Betting on You: How to Put Yourself First and (Finally) Take Control of Your Career, bosses looking for excuses to terminate someone will use any opportunity that arises.
“You can fire them for ‘performance,’ some BS reason,” she says. “It only makes a difference if your employer likes you and you haven’t caused them any heartache. If you protest and no one recognized you and everyone likes you, you’ll probably get a pass. If you’re not performing well and a local news story identified you and people don’t like you, you’re a goner.”
Kate Bischoff, founder, tHRive Law & Consulting
The First Amendment gives you the right to say what you will, but it doesn’t protect you from consequences.”
Besides possible reputational damage, a business might not want offenders back for other reasons. It could impact what coworkers, superiors, or subordinates think of him or her—and with that, workplace morale.
“It’s bad for PR and bad for the energy the employee may bring to the virtual and real-life office,” Ruettimann explains. “They pay you to come to work and solve problems, not make problems.”
What happens if the employee in attendance got arrested?
As we stated at the beginning, under many companies’ codes of conduct, unlawful activity is a game changer (as is behavior that is detrimental to the business or its reputation).
The issue becomes one of consistency, according to Moran. If two employees of the same firm did the same thing, but one was fired and one wasn’t, questions of fairness arise. For instance, was the person fired a woman or person of color? Was he or she a C-suite executive or an administrative assistant?
“Employers avoid litigation based on discrimination, when they’re consistent,” Moran says.
What if the employee-turned-rioter was wearing the company logo there?
For starters, that would make it easy for investigators, both official or unofficial, to identify you. Dragging the business’ brand into the mess won’t earn you any HR favors.
“If you’re wearing company-branded swag, you’re an idiot and probably shouldn’t have a job anywhere,” explains Ruettimann. “You put your employer in a very awkward position. You’re almost begging for discharge.”