By Chris Avcollie
In 1849, Henry David Thoreau was imprisoned for an act of civil disobedience. Thoreau had broken local laws by refusing to pay a poll tax which he found to be unconscionable. The story goes that when Thoreau’s friend Ralph Waldo Emerson visited Thoreau in jail he asked, œHenry, what are you doing in there? To which, Thoreau replied, œWaldo, the question is what are you doing out there?
Even in a free country, there are often profound consequences attached to the exercise of political conscience. On January 6, 2021 hundreds of pro-Trump protestors stormed the Capitol Building in Washington, D.C. in an attempt to stop the congressional certification of the electoral college vote which elected Joe Biden as our next President. While the protestors themselves probably believed that their actions were justified or motivated by conscience, those who occupied the Capitol and participated in the riot that terrorized the nation and caused at least five deaths and many more injuries have been properly branded as criminals and insurrectionists.
But what do their employers think of their actions? And can their employers punish them for their activity?
Major news outlets reported on January 8, 2021, that a number of those individuals who participated in the siege on the Capitol have been identified by their employers and terminated from their jobs for their participation in the violent assembly. One employee of a Maryland-based marketing company was prominently photographed wearing his employee name badge inside the Capitol during the riot. This employee was promptly terminated from his job for cause.
While the man wearing his company’s name badge was photographed inside the Capitol during the siege, several other employees were forced or at least asked to resign from their positions for their participation in the assembly, although they claimed that they only engaged in peaceful protest outside the building. It’s not clear whether those employees would have been fired if they had not resigned.
Do employers have the right to terminate someone who is engaged in peaceful protest? What about not-so-peaceful protest? Why does an employer get to punish an employee for his or her political activity at all? Does the employer’s right to terminate kick in only when there is criminal activity associated with the protest? While many may not agree with the ideology that motivated the insurrection on January 6th, it is important to remember that Gandhi, Martin Luther King Junior, and Thoreau also broke laws in the course of their political activism. Regardless of one’s political persuasion, why does an employer get to judge its employee’s political activism and mete out punishment for it?
Recently, the Wall Street Journal reported that employers have wide latitude to limit employee’s speech, both political and otherwise, that might offend other workers or impact the business. The general rule is that the First Amendment only prohibits the government from restricting speech, not private employers. While government employees have some limited free speech rights outside the workplace (i.e. when the speech is of public concern and not related to the employment), most employers have a great deal of discretion in terminating employees for public activism both in and outside of work. Vaguely worded employee codes of conduct and other arbitrary company decrees are used to terminate employees who violate management’s sensibilities. While some states such as Connecticut have passed laws that seek to protect First Amendment rights, if the employer believes that the speech or activity interferes with job performance or workplace relationships, the speech is not protected.
Where an employee’s political activism involves actual civil disobedience, the law protects an employer’s right to terminate an employee for criminal conduct. While thirty-six states have enacted œBan the Box (BTB) laws which prohibit employers from asking about an applicant’s past criminal convictions on a job application, (some 30% of adult Americans have a criminal background of some kind) there is no law prohibiting an employer from conducting a background check after the interview or hiring process and refusing to employ someone with a criminal record. Bottom line: if an employer does not like what you did, they do not have to employ you.
While many may believe that the right to protest publicly and in defiance of laws one thinks are unjust is a right enshrined in the Constitution and the laws of our country, it is important to remember that that right does not include the right to be employed by a company or boss that disagrees with your views. While Americans may still enjoy the right to protest, we do not enjoy the right to be employed while doing so. As long as the law allows the employment rule to govern the employment relationship, all employees should be cautioned that public political protest often has a steep economic cost. Before you head out to stick it to the man, just remember the man can still œstick it to you in the end.