The white supremacist rally that recently occurred in Charlottesville, VA has raised a multitude of questions within the realm of politics, law enforcement and the public forum at large. But what if the issues seep into the workplace?
Can an employer fire someone for participating in a hate group activity on their own time?
This is a complex question with no clear answer, however some general guidance is available to assist with such a challenging topic and potential business decision that must be made.
Three key areas to consider when faced with most controversial employment matters include:
At this time, there are no known federal laws that would be applicable against a private employer in this situation. Freedom of speech may be applicable with government workers, but not in the private sector. Claims of protected religious activity have been made in the past, but to date, have failed when made by hate groups such as the Ku Klux Klan (KKK).
State law may require a closer look. Some states have statutes designed to protect employees from employment action against them based on their lawful conduct when off duty (such as right to lawfully protest something on their own time). Seek legal counsel regarding state laws before taking action.
An employer’s current policies should be reviewed when considering employment action:
Have other employees submitted complaints claiming they felt harassed or intimidated by the employee in question? What does your anti-harassment policy say?
Has the activity become a hot topic on social media with certain employees’ pages referencing work and/or co-workers and the hate group activity? What is your social media policy?
Are there company emails circulating about the matter?
Are employees using personal devices to show coverage, photos of the hate group activity and participating employee to peers during working hours?
Has an argument about the hate group activity occurred on company time?
Corrective action regarding general conduct that impacts those participating in a hate group activity, as well as other employees, need to be considered to ensure a fair and impartial approach to the situation. If you don’t have anti-harassment and social media policies in place, now is the time to do so, before there is a problem.
Risk analysis regarding hate group activity is imperative. Employers need to consider potential outcomes in advance of making a decision:
How impactful is the situation to your business? Will it blow over? Is the situation directly affecting employees and their ability to work? Will it interrupt or slow down operations? Will it escalate if the employee is not terminated? How might customers be impacted?
What happens if you terminate the employee for participating in a hate group activity on his or her own time and they decide to sue your company?
Is there a concern for violence erupting in the workplace based on the decision we make and are we prepared to avert that?
Is there an impact to the company’s brand?
Before you make any decisions about such an emotionally charged employment matter, make sure you answer these questions and complete fully thought-out analyses regarding employment law, employer policy and company risk. Failing to do so may result in significant expense to your company, loss of work time and even damage to your brand.
Neither Propel PEO, Inc. nor Propel HR, Inc. is a law firm. This blog is intended for informational purposes only. It does not constitute legal advice and is not guaranteed to be correct, complete, or up‐to‐date.
Tracie Lilly, Senior HR Business Partner, joined Propel HR in July of 2016. Tracie has over 18 years of HR leadership experience and is a national member of the Society for Human Resource Management (SHRM). She is a certified Senior Professional in Human Resources through both SHRM (SHRM-SCP) and HRCI (SPHR) with a bachelor’s degree in Communications from Edinboro University. She has led the HR and Risk Management functions of a large retail company with more than 1,400 employees at 80+ locations. Her experience serving for more than ten years at both the executive level of a for-profit business and within the community on the Greenville County Workforce Investment Board has equipped her with the skill sets to translate organizational strategies into actionable HR initiatives.