On January 6th, a violent mob stormed the U.S. Capitol in an attempt to overturn the Presidential election. Five people died, including a Capitol Police officer, and many were injured. Americans watched on TV as the violent mob damaged property and bragged about taking over the chambers. On social media, videos of the chaos inside the Capitol quickly surfaced, and Americans were horrified to see the rioters taking selfies, parading with the confederate flag, and desecrating property.

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On January 7th, some of the individuals present at the Capitol riot were fired from their jobs. Once employers identified employees participating in such acts, they felt that they had no other alternative than to terminate employment. In today’s highly charged political environment, where is the line between freedom of speech and job security? The First Amendment to the U. S. Constitution protects the freedom of religion, freedom of speech, freedom of press, and the right to peacefully assemble and petition the government. But to what extent does this freedom apply to the workplace?

In general, the First Amendment applies to employees in the public or government sector, but it does not apply to those working in private organizations. However, there are some gray areas that can be confusing and risky.

Here are some guidelines to help you navigate this potentially charged matter:

• Be informed. As an employer, understand what laws apply to free speech and employment, including federal, state, and local regulations. Seek counsel when making any employment decisions.
• Ask the right questions. Does the employee’s speech relate to the terms and conditions of employment? The National Labor Relations Board (NLRB) protects free expression concerning employment conditions such as working conditions, safety, and wages. For example, if a healthcare employee posts that they do not feel safe in their workplace because of the lack of personal protective equipment, the speech is likely protected, and the employer cannot prohibit it.
• Engage with HR. If employee speech rises to the level of discrimination or harassment, Human Resources should be involved. Discriminatory speech is not protected, and divisive political speech can easily cross the line into discrimination or a hostile work environment.
• Ensure safety. An employer has the responsibility to provide a safe work environment. If an employee incites violence, communicates a threat, or commits a crime, they are not protected under the First Amendment. Proper measures and communication with authorities must be taken.
• Review and update policies.  It is important that the company handbook is updated regularly and that staff and managers understand the policies. Does your handbook exclude political discussion at work? Is it consistently enforced? Do you have a social media policy, harassment policy, and non-discrimination policy? Have they been updated, and are they state specific?

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Most importantly, proceed with caution. Our world is very divided right now, and the proliferation of images on social media can cause people to react without thinking. I encourage employers to review all the facts and seek HR or legal advice when making such decisions. Employees also need to understand that their actions outside of work may cause repercussions to their job.

The First Amendment is one of the most sacred parts of our Constitution. Freedom of speech is a cornerstone of our democracy. While we must protect this right, it is also important that we understand where and when the First Amendment applies. The rioters who entered the Capitol on January 6th crossed a line, and in today’s viral world, their actions have consequences.

Propel HR President Lee Yarborough was recently elected Chair of the National Association of Professional Employer Organizations (NAPEO) Board of Directors. She spoke with PEO Insider magazine to share where she thinks the industry is headed and how NAPEO can continue to grow.  

Download a pdf version of the full interview:  A Passion To Serve 

About Propel HR. Propel HR is an IRS-certified PEO that has been a leading provider of human resources and payroll solutions for 25 years. Propel partners with small to midsized businesses to manage payroll, employee benefits, compliance and risks, and other HR functions in a way that maximizes efficiency and reduces costs.