As the nation processes the full impact of the breach of the U.S. Capitol building by protestors last week, the FBI is warning of potential armed protests in all 50 states over the next week.  Many of the participants in last week’s rioting in Washington, D.C. have been identified from video and photos, often posted on social media by the rioters themselves.  Some of the participants, including one man photographed wearing a company ID lanyard around his neck, have been fired or suspended from their jobs.

With more protests likely forthcoming, North Dakota employers are asking the question of whether they can lawfully fire employees choosing to participate in similar protests?  For private employers, the answer in most cases is “yes.”

What are the laws on political beliefs and off-duty conduct? 

Many employees believe that they cannot be disciplined or subject to termination for their political beliefs or conduct committed while off the employer’s clock.  Are they right?  The North Dakota Human Rights Act does provide protection for employees from discrimination based on off-duty participation in lawful activities.  Specifically, N.D.C.C. § 14-02.4-03 provides that it is unlawful for an employer to discriminate against an applicant or employee based on the individual’s “participation in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer.” 

The NDHRA “lawful activities” provision does not, however, protect individuals engaged in activity that is not “lawful.”  Moreover, it provides no protection based on political beliefs to non-governmental employees. Thus, individuals who participate peacefully, in lawful demonstrations are likely protected from employment retaliation by the NDHRA.  Individuals who participate in violent, unlawful conduct, on the other hand, such as trespassing, rioting, destroying property, or similar misdeeds are not protected by the NDHRA.

But, what about employees who are not arrested and whose conduct is not clearly “unlawful”?  For example, consider the fellow with his employee ID on a lanyard around his neck who made national media . . . if he had been engaged in lawful activity, might the NDHRA have provided job protection?  Similarly, what of employees who post vulgar, threatening, or inflammatory comments on social media?  Are these individuals given job protection?

The answer is “maybe.”  If conduct by employees is merely offensive or disagreeable, but not necessarily unlawful, employers must consider whether or not the conduct is “in direct conflict with the essential business-related interests of the employer.”  The North Dakota Supreme Court has held that protecting the reputation of a business may be an “essential business-related interest,” justifying action against employees engaging in bad behavior off premises, during non-working hours.

Important questions that employers should ask if confronted with such situations is whether or not the employee is readily identifiable as an employee of the company?  Is the employee displaying company ID or wearing clothing identifying him or her as a company employee?  In the case of social media, does the employee link him or herself to employment with the company in a social media profile or otherwise?  Moreover, how damaging to the company is the publicity, conduct, or social media post?

Determining exactly when conduct crosses the line to being “in direct conflict with the essential business-related interests of the employer” is a complex determination and should be approached with care, and likely a consult with legal counsel.

What about Freedom of Speech?

Many of the protestors in last week’s debacle – and their supporters — have cited their right to “Freedom of Speech” in protesting their summary termination by employers.  But, do employees of private employers really have such rights?  The short answer is “no.”  The First Amendment to the Constitution of the United States provides constitutional protection to free speech, but only against the abridgement of free speech by the government.  The First Amendment was meant to protect against governmental actions limiting free speech, not the action of private employers.  Thus, for most private (non-government) employers, an employee’s right to free speech is simply not governed or protected by the First Amendment.

Bottom Line 

While the North Dakota Human Rights Act provides some protection for off-duty, off-premises conduct to North Dakota employees and applicants, that protection ends when conduct becomes unlawful.  Even conduct that is not unlawful may be so detrimental to the business interests of an employer that it loses its character as protected.  Moreover, the First Amendment provides no protection for the employees of private businesses based on their claim to free speech.  In short, employees who violate the law or engage in severe acts of civil unrest can expect to be subjected to lawful discipline, even termination, by their employers.

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