Victor O. Cardwell

Victor O. Cardwell
Principal and Chairman

Leah M. Stiegler

Leah M. Stiegler
Associate

The World Has Turned Upside Down, But Your Business Should Not!

Last week a mob assaulted our democracy and the rule of law in this country. American citizens angry about the results of the 2020 presidential election took to the U.S. Capitol to disrupt Congress in its formal and Constitutionally required process of certifying the election of President-elect Joe Biden as the next U.S. president.

It was originally characterized as a “Stop the Steal” rally based on claims that the election was somehow “rigged” or stolen from President Trump. The rulings of many courts of law across the nation in more than 50 lawsuits determined these claims to be false.

As the day unfolded, the scene became more disconcerting as it devolved into what many characterized as a riot, insurrection, coup, domestic terrorism, or even “Banana Republic.” Regardless of what you call it, trespassing, property destruction, rebellion, and perhaps even treason against the U.S. Government occurred, as well as five needless deaths that included two members of the U. S. Capitol Police.

We cannot forget the mob’s objective: to impede our democratic process. If you are like most of us, you still can’t move past what happened. As Americans, we viewed this scene with shock and disgust.

But as employment lawyers, we saw more.

Between security footage, social media posts, and the public’s help, the Federal Bureau of Investigation (FBI) is identifying and making arrests of those who took part in the riot. More than 82 people have been arrested as of January 11. Make no mistake, having an employee arrested is a serious issue for employers.

Many of those arrested, including a lawyer in Texas, a teacher in Pennsylvania, and a real estate broker in Chicago, have lost their jobs due to their own social media posts. Many of these posts do not incite violence but merely admit attendance. The president of the Richmond, Va., Food Truck Association resigned after he posted on his personal Facebook page, “What a day… I made to [sic] the front doors of the capital took a few flash bangs but missed the pepper spray and rubber bullets.” Even worse, one participant wore his Maryland company’s ID badge to the riots.

Not only was their conduct unlawful, any association with it could be damaging to an organization’s reputation. Can you imagine seeing one of your employees all over television or the internet in that setting? Can you imagine getting a call from a customer saying they saw your employee climbing the wall of the U. S. Capitol? Can you imagine explaining to your Board of Directors that a key member of your management team was smiling triumphantly on social media about disrupting Congress?

If one of your employees stormed the Capitol, or voices support for this conduct, you may be in a position to make some tough personnel decisions. Can private conduct on an employee’s personal time result in termination from your business? The answer is unequivocally YES!

What about our employees’ rights of Free Assembly or Free Speech?

We all have the ability to say what we want, but we also have to suffer the consequences of what we say. The First Amendment does not protect people who incite lawlessness, who make threats, or who destroy public property. The First Amendment only applies to government infringement or censorship. Any private sector company can discipline or terminate any employee for engaging in or supporting the riots. This is exactly why Facebook and Twitter can censor Trump on their platforms. But even employees in the public sector are not immune when it comes to the First Amendment.

What if our company does not have a policy that addresses anything like this?

Focus on whether the employee’s conduct fits within your mission. While it is best to have policies that cover activities on social media, an employee’s off-duty conduct, or anti-discrimination, it is not necessary to take action in this case. A CEO or business owner needs to determine whether this conduct (or supporting this conduct) is consistent with the company’s values or mission, or whether any association could harm your reputation or hurt your profits and partnerships.

Cogensia, an Illinois-based marketing firm, terminated its CEO, Brad Rukstales, last week after he was arrested following the riots. Cogensia’s acting CEO commented, “This decision was made because Rukstales’ actions were inconsistent with the core values of Cogensia. Cogensia condemns what occurred at the U.S. Capitol on Wednesday, and we intend to continue to embrace the values of integrity, diversity, and transparency in our business operations, and expect all employees to embrace those values as well.”

It is just that simple. Cogensia, in fact, did not mention it was poor judgment for the CEO of a marketing firm to engage in conduct that could lead to a massive loss of customers. A business’s reputation is critically important to its long term success.

What about “innocent until proven guilty?”

In Virginia, employment is based on the notion of being employed “at will.” Business owners and senior leadership are not required to allow the entire criminal process to work its way through the judicial system. In fact, based on what we witnessed, there are thousands of people, and most are employees somewhere, who will never be charged or arrested. The numbers are simply too great. That said, the employee does not have to be arrested, there is no need to wait for a conviction, and the employee need not have attended the event but simply voiced support for you to consider taking action.

Can my company be sued for firing an employee who attended or supported the riots?

We are not saying you are risk-free when firing an employee who took part in last week’s riot or any other demonstration that resulted in lawlessness, threats, or destruction of public property. A business should not act carelessly. However, with good documentation of your knowledge of the employee’s association and actions, your decisions can be defensible.

There are certainly factors that complicate this decision, such as whether your state’s laws include “political affiliation” as a protected class or whether the employee has an employment contract. You also want to apply your decisions consistently for all employees. This means if two employees attended the riots, and one is 60 years old, and the other is 30 years old, you must treat both the same unless you have well-documented, non-discriminatory reasons for the distinction. It may also mean you must consider the same action regarding any employees who incited violence or property destruction during other similar protests.

If one of your employees has engaged in civil unrest, stormed the U.S. Capitol, or simply conducted themselves in a manner inconsistent with the goals of your business, you have options. Start with asking whether this conduct fits within your company’s image, vision, and mission.

If you decide that there has been off-duty conduct that causes concern for your business’ reputation or the safety of your employees, consult with a labor and employment attorney at Woods Rogers. We have dealt with issues of this nature and will help you through these turbulent times.