October 26, 2017

For most employers, the outside lives and activities of their employees do not factor into employment decisions. After all, what an employee chooses to do on his or her own time is generally considered to be that employee’s business.

But as recent events have shown, employers are increasingly questioning the business impact of their employee’s outside activities. Specifically, the white supremacist rallies in recent months have raised an issue many employers have never considered: what, if anything, can you do in response to the outside political activities of your employees?

To be clear, not all outside political activity is created equally. Participation in or volunteering for political campaigns or rallies is commonplace around elections, and most employers are happy to have their employees so civically engaged. It is a different matter, however, when an employer discovers that one of its employees has participated in an event such as a white supremacist rally. In those situations, what are an employer’s options? Is it legal for an employer fire the employee in question?

The answer depends on a number of factors, including the location of the employer, the legality of the conduct, and the nature of the employment relationship.

Generally speaking, federal law does not apply in these situations. The First Amendment does not apply to private employers, so while it may protect an employee’s speech from government action, it will not protect the employee from discipline or termination. In the same vein, outside political expression, participation, and beliefs are not protected characteristics under Title VII. 

Under certain circumstances, outside political activities could be considered protected concerted activity under the National Labor Relations Act, but that likely will be the exception rather than the rule. Federal employment laws generally are only implicated when one protected group is targeted for termination while those outside of the protected group are not.

At the state level, employment is generally at-will. In other words, an employer can fire an employee for any reason as long as the reason is not unlawful. The large majority of states do not have any prohibition on termination of employees because of their outside political activities. A handful of states, including New York and California, have enacted statutes protecting employees from termination for their outside political belief or participation, but even then, there are often exceptions for when the outside activity has a negative effect on business operations. At the local level, some cities, such as Madison, Wisconsin, include political beliefs as a protected class in their fair-employment ordinances. 

But apart from the legal issues involved, employers should consider the practical effects of their action, or inaction, on their workforce and business operations. Employers understandably may decide that the potential liability from terminating an employee who participated in a white supremacist rally may be outweighed by the practical effects of retaining the employee in question, especially with respect to employee morale, workplace harmony, and the employer’s reputation.

As we see, a number of federal, state, and local laws can be implicated when it comes to an employer’s responses to outside political activities of its employees. For this reason, it is important for employers to consult with legal counsel prior to making termination or disciplinary decisions. 

For more information on the issues surrounding employees’ outside political activities and potential responses available to employers, please contact your Much Shelist attorney.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.