According to a recent article by SHRM the answer to that is a resounding “Maybe, depends.” Oh come on… you were expecting a different answer from HR and a lawyer in HR at that! Humor aside, let me help explain the answer of “Maybe” to the question of can you fire someone for participating in an “Occupy” rally?
According to Joanne Deschenaux, J.D., SHRM’s senior legal editor, “…for activities outside of the workplace, other than union activity, federal law does not prohibit employers from disciplining or terminating employees because of their political views”. According to her and the other attorneys she interviewed employers must often look to state law to see if there are prohibitions against employers conducting such terminations. States like California, Colorado and New York have protections for employees being fired for participating in legal, off-duty activities. The question to me becomes if the person gets arrested during their rally activity does that move out of the “lawful, off-duty activity” bucket into illegal activity?
There are some other areas of concern for employers who may be considering terminations. Here are a few that Deschnaux listed:
- State public policy to the at-will doctrine
- Purpose of the rally may be a consideration. If the person is rallying for gay rights the question becomes have they been fired for the rally or for their homosexuality?
- Does this termination clash with company culture?
- If the employee is at a rally and they are displaying signs supporting unions then a termination would most likely violate the National Labor Relations Act.
- Is their outside activity spilling into the workplace?
One of the attorneys Deschenaux spoke to, Daniel Prywes, “… recommended that, as a good management practice, employers should “let employees know what types of political activity are permitted and not permitted in the workplace by publishing a policy or ‘code of conduct.’ ” The policy should address such issues as use of company facilities, including e-mail and public areas, for political activities; anti-solicitation rules in the workplace and rules regarding distribution of political materials on company premises.
But the net of this discussion is, if you are in a state that recognizes the “employment-at-will” doctrine, and the employee’s participation does not fit with the company’s point of view then the company is free to terminate the employee. Of course, if they have been participating for any length of time then they have probably violated the attendance policy. Remember this one provision. Just because you can do it does not necessarily mean you should do it. At least not as a knee jerk reaction. Think it through before you act.