Business leaders, corporate lawyer argue about when it's time for disciplinary action
First thing Monday morning, you grab a cup of coffee and sit down to read the newspaper, shocked to see your employee’s mug gracing the cover. They were involved in a political demonstration over the weekend, and it turned violent. It’s only a matter of time before the social media sleuths discover where the person works and wonder how you can condone such heinous actions.
HR leaders across the United States have experienced similar situations over the past few years, with none more publicized than the riot at the Capitol Building in Washington D.C. on January 6, 2021. Though the events of the insurrection present unique issues regarding employee off-duty conduct and organizations’ responses to it, some overarching principles apply.
Let’s begin with the distinction between government entities and private employers. The First Amendment doesn’t apply to private actors, so their employees aren’t protected by freedom of speech, assembly or petition in the workplace.
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However, you usually don’t see companies clamping down on the First Amendment rights of their employees, according to corporate lawyer Peter Cassat, partner at Dallas-based law firm Culhane Meadows. “Companies would be out of place doing that with respect to activities outside the workplace,” Cassat told HRD. “When exercising those rights interferes with the performance of an employee’s conduct of their job responsibilities, then the employer is entitled to take action.”
As it pertains to the insurrection, most companies have policies against engaging in criminal behavior, under which employees can be disciplined. With the increased strategic focus on diversity, equity and inclusion (DEI) in the workplace, any employee involved in activities like the Patriot Front's recent plan to riot at an LGBTQ+ Pride event should be fired, argues Stan C. Kimer, president of Raleigh, NC-based Total Engagement Consulting by Kimer.
“Having employees who outwardly disdain people based on gender, race or sexual orientation will create a hostile work environment,” Kimer told HRD. “How would customers and clients react to interacting with a company with these kinds of people? There is no place for hate and discrimination in the workplace, and it’s nearly impossible to separate how people present in such visible displays of hate and discrimination could productively work with an increasing diverse workplace.”
Whether employee involvement rises to the level of the insurrection, includes off-duty nonviolent protests or simply involves political discussions in the workplace, HR leaders should consider creating a political activity policy to help them consistently address concerns and issues. More than half (52%) of HR professionals attested that they were either "somewhat" or "very" concerned that political discussions among coworkers may negatively affect employees' mental health, according to XpertHR’s Survey of HR Challenges for 2022.
About one-third of respondents were "somewhat" or "very" concerned these discussions would negatively affect collaboration (34%) and productivity (33%). “Given the political and social climate of the last few years, it would be wise to proactively manage these potential tensions and anticipate employee disciplinary issues before they occur,” Taylor Lewellyn, legal editor at U.K.-based HR services firm XpertHR, told HRD.
“Because an employer may make different disciplinary decisions regarding employees who appear to have engaged in similar conduct, the employer should carefully document the reasons for taking a particular course of action and ensure that the need for fairness and consistency was considered throughout the disciplinary process,” Lewellyn adds.
Keep in mind that if an employee is arrested, that doesn’t guarantee they’ve been found guilty of committing a crime. Many state laws, including California’s labor code, protects employees from being fired for an arrest that didn’t lead to a conviction. It’s crucial that HR leaders are knowledgeable of state requirements before responding to employee involvement in political incidents. HR leaders must always ensure that workplace rules and policies comply with local, state and federal laws.
“Sometimes, the individual’s conduct has nothing to do with the employment relationship, yet it can somehow tarnish the reputation or image of the company,” Cassat says. “That’s why companies are tempted to act, but when it’s really not within the realm of the employee’s conduct on behalf of the employer, it gets really tricky.”
Nicole Anderson, founder and CEO of consultancy MEND HR in West Palm Beach, FL, was part of a more cut-and-dry incident. Several years ago, 14 female employees participated in women’s marches and a walkout. Twelve of the 14 women who requested time off were approved. The remaining two called out sick, but attended the event. One of the two had exhausted their attendance points, Anderson says, and as a result, was terminated.
“It’s important to allow employees to exercise their constitutional rights, but they should do so responsibly,” Anderson told HRD. “Our place of employment had a zero-tolerance policy for soliciting on company time, social and political stances included. We’re fully committed to employees exercising their rights on their personal time.”
