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Riots that erupted on Jan. 6 at the U.S. Capitol after electoral counts
Riots that erupted on Jan. 6 at the U.S. Capitol after electoral counts
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Can Companies Fire Rioters? ‘Unequivocally Yes,’ Says Attorneys

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January 20, 2021 

Thanks to Stephanie Forshee

Riots that erupted on Jan. 6 at the U.S. Capitol after electoral counts confirmed that U.S. President-elect Joe Biden won the 2020 election were captured through photographic and video evidence that appeared across news outlets and social media platforms. As the violent events that occurred sent fear and shock across the country, a number of companies swiftly took action to fire employees who had been identified as participating in the riots that left five dead and dozens injured.
Attorneys seem to agree that involvement in riots at the U.S. Capitol warrants termination, but there are considerations of which boards and management should be mindful.
“If I’m a director faced with the decision of what to do with an employee who was involved, I think it’s really important that the level of involvement is considered,” says Erin McLaughlin, attorney and shareholder for Buchanan, Ingersoll & Rooney’s labor and employment group.
“My recommendation to a board member would be to [make clear] we’re not making decisions merely because somebody is pro-Trump or anti-Trump,” she explains. “We’re making decisions based on the way in which you’ve conducted yourself and whether or not there was violence involved and whether or not you broke the law.”
The Fallout
Following the events that unfolded last week, companies like Maryland-based Navistar Direct Marketing cut ties with employees who appeared in photos at the riots.
Digital marketing production company Navistar, in a statement on its website, confirmed it terminated one of its male employees for cause after being alerted that he was seen inside the Capitol “during the security breach.”
“While we support all employees’ right to peaceful, lawful exercise of free speech, any employee demonstrating dangerous conduct that endangers the health and safety of others will no longer have an employment opportunity with Navistar Direct Marketing,” the company said in a statement.
As Navistar points out, there is a difference between a peaceful protest and violent riots. Attorneys believe this is an important distinction in whether an employee can be justly fired.
Brian Kaplan, chair of the U.S. employment practice at DLA Piper, says, “I think the answer is unequivocally yes, yes, an employee could be fired for participating in that violence, trespassing, any type of criminal conduct. An employer is within its rights to decide that its employees’ are exercising extremely poor judgment.”
“For me, it’s almost like a bright line,” says Kaplan. “You don’t need to wait for trial. You don’t need to wait for some judge to tell you. In the United States, it’s OK to separate with an employee. You’re allowed to do that.”
Kaplan explains that employees involved in the riots were clearly participating in unlawful activity, which makes the situation clear-cut, in his view. An employer, though, could be more vulnerable to liability if, for instance, it tried to terminate someone for merely attending a political rally that was peaceful. The company would also open themselves up to legal risks if it applies the rules unfairly. For instance, if a woman or person of color who attended the riots was terminated but a white employee was allowed to continue employment at the company, it could be deemed problematic.
Marc Snyderman, an attorney and COO of management consulting firm Apolline Group, agrees that companies in the private sector can legally terminate an employee who participated in the Capitol riots, as long as the firing does not violate discrimination laws or an employment contract through a collective bargaining agreement.
Snyderman notes that companies need to consider the public perception of the terminations, however. On the one hand, he says, companies do not want to be perceived as “against free speech” or be questioned for “political motivations.”
Yet, “The company’s culture could be affected by not terminating the employee or by terminating the employee, and those factors should all be weighed out.”
The reputational harm stemming from company employees at the riots has been felt. For instance, at Goosehead Insurance in Texas, one of the company’s in-house lawyers was identified after posting to social media about his involvement in the riots.
On the morning of Jan. 7, the company took to Twitter to announce, “Paul Davis, Associate General Counsel, is no longer employed by Goosehead.”
One commenter, Matthew Queen, responded to Goosehead’s announcement by saying, “As a shareholder, I applaud this. Our professionals should be exactly that — professional. Yesterday’s rioting and belligerence [sic.] was both illegal and immature.”
Others responded in a more negative way toward the insurance company, despite their termination of Davis: “I hope you go out of business for employing insurrectionists, @followgoosehead. I’ll do my part,” said one user.
At Navistar, the company was alerted to its former employee’s behavior due to the individual wearing a company name badge. Employers of others involved in the riots also were identified due to the individuals’ wearing clothing donning their company name or logo.
“I think anytime you have an employee who is wearing the employer logo and acting in a certain way, I think it is much more likely that their conduct is going to be attributed to the company, as opposed to just the individual,” says McLaughlin.
“So I look at that and I would take a much more critical eye to their conduct if they were donning an employer’s logo, because there’s nothing worse for an employer to see an employee on national TV that is performing some sort of violence or socially unacceptable conduct.”
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