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Capitol Rioters are Being Fired by Their Employers

   A long list of people have been fired or forced to resign from their jobs due to their involvement in the riot and storming of the United States Capitol on January 6, 2021.  News stories, photos and social media posts helped to quickly identify individuals who have suffered serious consequences at work.  A handful of examples include:

• A Maryland man photographed inside the Capitol while still wearing his company badge, was dismissed by his employer.
• A Texas man was photographed roaming the Senate floor and videotaped while exiting the office of House Speaker Nancy Pelosi was fired by his employer.
• A real estate agent from Chicago who boasted on her Facebook page that she participated in “storming the Capitol” was terminated by her real estate agency.
• A Pennsylvania adjunct professor (and former state lawmaker) who posted on his Facebook page that they were going to “run out all the evil people and RINOs that betrayed the president” was forced to resign after 21 years at the college.

   The list of people who have already lost their jobs because of their involvement in the insurrection at the Capitol is long and growing as more evidence emerges, allowing their employers to identify them and their behavior.  As these recent examples show, off-duty conduct that is unrelated to an individual’s role at work can, and often does, lead to discipline and even termination.   

   Generally, an employee can be disciplined for behavior outside of work if that employee would have been disciplined for engaging in the same or similar behavior while at work. That is not to say that employers can act with impunity. Rather, employers must consider potential legal protections afforded the employee under a written contract, a collective bargaining agreement or the law. For example, public sector employees have First Amendment protections if they engage in speech as a private citizen, unrelated to their job duties.  

    Before taking disciplinary action for off-duty conduct, employers should consider: 

• The nature of the conduct:
  • Does the conduct violate company policy or standards?  For instance, policies against discrimination and harassment, the code of conduct, electronic communications policies or remote work arrangements.
  • Does the conduct breach a contract with the company?
  • If proven to be true, is the conduct illegal?
• The employee’s role in the conduct:
  • Was the employee acting as a private citizen or as a representative of the company?
  • Was the employee a passive participant? 
  • Was the employee wearing a company uniform or identification?
• Who knows about the conduct:
  • Has it gone viral?
  • What is its shelf-life?
• How the employer learned of the conduct:
  • Did the company learn about the conduct through voluntary disclosure?
  • Was the information coerced?
  • Did the company learn through lawful monitoring or public access?
• The potential impact on the business:
  • Could the publicity or knowledge of the conduct harm the company’s reputation, employee morale, sales, client relations or result in legal claims?
• Legal protections the employee may have:
  • Does a contractual, legal or, in the case of public sector employees, constitutional protection apply?
  • If a public sector, was the employee acting in his or her governmental role or as a private citizen?
  • Does a collective bargaining agreement provide due process protections?

   Before disciplining an employee for off-duty behavior, employers should consider all facts and legal consequences. With current technology, camera phones and the ease with which one can post on social media, employers and employees alike should be mindful that what a person does on his or her own time , including visiting our nation’s capital, can have real life consequences at work.  

   Should you have any questions or concerns regarding employee conduct or discipline, please contact Brigid E. Heid.  Thanks to C. Awele Nawajei for her assistance in gathering information for this article.

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   Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.

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