Your employee participated in the Washington riots. Can you legally fire them? | Opinion

As the coverage of Wednesday’s D.C. protests has dominated the news cycle, employers of private businesses may be wondering whether it is legal to take action against an employee who participates in such riots.

On the question of whether an employer has the discretion to terminate an employee who participates in a protest such as the event at the Capitol, the answer may be surprising to many. Inherent in the analysis is the dichotomy between an employer’s discretion to manage its business and the constitutional protections afforded to individuals that do not necessarily extend to employees of private firms.

Now, what does the First Amendment protect? Among other things, the First Amendment protects the right to peacefully assemble. But such protections would not extend to illegal actions, including vandalism. Further, First Amendment protections protect individuals against government actions, and likely would not extend to private employers.

What does that mean for private employers? In short, an employee may be terminated for participating in protests despite such behavior being otherwise protected by the Constitution. The key consideration for whether the employer may lawfully exercise discretion in such a decision is the consistent application of a policy forbidding or restraining the employee from engaging in such conduct. For example, if an employer only enforces a protest ban against employees of a certain race, religion, or other protected characteristic, d so would be classified as discriminatory and therefore unlawful.

For the employer, the first question is whether the employee is considered “at-will” or if an employment agreement controls the terms and length of the relationship. In Florida, and many states, in the absence of an agreement between the employer and employee with a fixed term of employment, the default classification is “at-will” employment. That means the employee may be terminated for any reason and without warning.

While an employer may terminate an at-will employee without disclosing the reason for the firing, the motivation for adverse employment action must not be discriminatory.

For an employee whose employment terms are subject to a contract or agreement with the employer, then the express terms of that agreement should control whether and to what extent the employee’s participation in a protest justifies termination.

Next, the employer should consult the company handbook or, in the absence of a handbook, any company policies signed or acknowledged by the employee — whether at-will or contractual — that set forth guidelines on employee responsibilities to the company, either during work hours or when off the clock. This includes prohibitions against making statements or engaging in conduct as an agent of the employer. Some employment agreements specially note that employees may not act publicly in a manner that reflects poorly on the company, including committing illegal acts.

Major events like Wednesday serve as firm reminders that employers should always expect the unexpected, and plan accordingly by having employment experts available. Likewise, it is a reminder for their employees to understand the rights and protections they have as well.

Editor’s note: This article has been substantially updated to correct inaccurate information in the original version.

Andrew Zelman is a partner and employment-and-labor expert at Berger Singerman. Terron Clark is a commercial Litigator and labor and employment attorney at the firm.

This story was originally published January 11, 2021 at 7:00 AM.