A Tricky Legal Question for HR

The Aug. 11 march by white-supremacists in Charlottesville, Virginia, ended after a car plowed into a crowd of counter-demonstrators the next day, killing a 32-year-old woman.

Authorities have charged an Ohio man in the case, starting what could be years of legal repercussions.

For HR executives, the incident raises a legal question that is at least as complex: How can employers protect themselves when a worker participates in extremist political conduct that puts the business at risk?

That risk is painfully clear to the owners of two restaurants on opposite sides of the country. Both employed men who were publicly identified as participants in the Charlottesville rally. Both companies found themselves in the glare of unfavorable publicity as a result.

Boston-based Uno Pizzeria and Grill quickly fired a cook in a Burlington, Vermont outlet after he was identified in a news video and in social-media posts as a march participant and ardent white supremacist.

Owners of Top Dog, a small chain of hot-dog restaurants based in Berkeley, California, did not fire an employee who also was linked to the Charlottesville rally in social-media accounts. Instead, they told local news outlets, he chose to resign.

What about the First Amendment? Does it protect employees  from punishment by employers for exercising their constitutional right to free speech?

Not if they are employed in the private sector, lawyers say. The First Amendment only limits government control of a person’s speech or writing, writes employment attorney Robin Shea of Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina. “The First Amendment doesn’t prohibit limits on speech that are imposed by private individuals, or private-sector employers.”

State or local laws may apply in some cases, “but those jurisdictions are the exception, not the rule,” she writes.

Public employers take special care, Shea notes. And employers with a collective bargaining agreement should check to see if it limits their options, Shea writes.

In any case,“Employers must also be careful not to run afoul of the National Labor Relations Act by punishing employees who may be commenting about the terms and conditions of their employment,” writes Kimberly A. Ross, a partner with Ford Harrison in Chicago.

Ross recommends that employers tread carefully no matter what. “Because of all of the complex issues to be considered, employers are encouraged to consult with their employment counsel before making any significant decisions based on their employees’ off-duty conduct,” she writes.

Shea also urges employers to be cautious: “Never take action against any employee based on ‘politics’ unless you have consulted with counsel first,” she writes.