Can Employers Terminate for Off-Duty Conduct (Say, Like Storming the Capitol)?

Excerpted from Lexology by Shawe Rosenthal LLP

Following the shocking events of January 6, 2020, there have been many reports of individuals who have been terminated, suspended or resigned from employment as a consequence due to their involvement in the deadly storming of the Capitol building or their active support of President Trump’s “stolen election” narrative. But what exactly are the parameters of when an employer can take action against an employee for engaging in off-duty activities that an employer may find repugnant? We first blogged about this issue back in 2017, in light of the deadly white nationalist/supremacist rally in Charlottesville. But a refresher seems timely.

Every state, with the exception of Montana, recognizes the concept of employment at-will, meaning that an employee or the employer may terminate the employment relationship at any time, with or without cause or notice. (Montana has passed a law that essentially requires good cause for terminations). But this doesn’t automatically mean that you can terminate an employee for their participation in the Capitol insurrection or their support of attempts to overturn election results.

For the most part, employees engaged in these activities while off-duty. At least four states – California, Colorado, New York and North Dakota – prohibit employers from firing employees for engaging in lawful off-duty activities. So, verbal support of litigation challenging the election or peaceful participation in the rally preceding the insurrection could not be a reason to terminate the employee in such states. But if the employee engaged in any violent conduct or broke other laws – such as storming the Capitol building or possibly even inciting or threatening violence on social media – that could cross the line into unlawful activity for which they could be fired.

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