Protesters clashed on and around the campus of the University of Virginia in Charlottesville in August. What started as a gathering by so-called “white nationalists” over the removal of a statue of Confederate General Robert E. Lee turned into a violent and, in one instance, deadly clash as counter protesters flooded the area as the protest went on.
Following the violence, some of the people photographed carrying swastika-emblazoned flags, making Nazi salutes and chanting anti-Semitic slogans faced backlash from online communities that aimed to expose the participants. Some lost their jobs, bringing to light the question of how employers should handle the employment of workers who may hold extreme, unpopular or controversial political views.
Legality of Letting Go
If an employee is not a government worker nor a unionized employee, the employer can fire them at-will, though this rule varies by state, said Brad Landin, president and chief compliance officer at Employment Screening Resources, a pre-employment screening and employee background check company based in Novato, California.
Participating in violent protests like the one in Virginia could fall under what Landin referred to as off-duty bad conduct, which should be spelled out to all employees as they are hired. The more a company explains this up front, the better they protect themselves when terminating an at-will employment, Landin said. The employer should address what bad conduct is through the employee handbook.
There should also be a statement in the handbook about conduct that may conflict with the interests of the company or disrupt business operations and what harm the company is looking to restrict. This should be reviewed by an employment law specialist that has expertise in what state the business is based, as rules vary across the United States. The handbook should have some acknowledgement via signature that the employee read and received it.
“I can’t overemphasize the importance of whatever your policy is going to be, to have it written and that the individual was given notice,” Landin said.
Employers can also use Title VII to fire an employee who may hold what the company considers an inappropriate or unacceptable political view, which protects people from “discrimination based on race, color, religion, sex or national origin,” said Jon Hyman, a partner in the labor and employment practice of Meyers, Roman, Friedberg & Lewis in Cleveland.
“When you know someone belongs to a movement that subscribes to a philosophy that denies your right to exist, I think that’s where somebody legitimately has the right to say, ‘the mere fact that I work with this person, knowing what they believe in, in and of itself creates a hostile environment,’ which I think triggers an employer’s responsibility to do something under Title VII.”
In a column for Workforce magazine, Hyman wrote that while employees can engage in political advocacy during their own time in nonwork areas, per the National Labor Relations Act, such political advocacy must be “nondisruptive.” In an interview with Talent Economy, he added that nondisruptive would be something that does not threaten, intimidate, harass or coerce another employee. What happened in Charlottesville is “the very definition of disruptive,” he wrote.
When preparing to fire an employee, the attorney should articulate the employee documents, such as the handbook, and the at-will employment should be terminated with no explanation, Landin said. If stating reasons for the firing, that could be cause for a lawsuit, so proceed with caution.
To get ahead of this issue and prevent the company from hiring people with controversial views in the first place, Landin recommended asking behavioral-based questions in initial interviews, such as asking about a situation where the candidate had conflict with a co-worker, what it was and how they rectified it. If looking specifically for concerning behavior, simply ask enough questions that it would reveal their personality, he said.
Of course, it’s not just the employer’s relationship with their employees that could be damaged by this situation.
Branding involves identifying the beliefs and values of customers and aligning the organization to them, said Deb Gabor, CEO of Sol Marketing, a brand strategy consultancy based in Austin, Texas, and author of “Branding is Sex: Get Your Customers Laid and Sell the Hell Out of Anything.”
Following the Charlottesville protests, CEOs of major companies spoke out against what happened as well as President Trump’s reaction to the protests. When employees witnessed their leaders doing this, they saw the values of their employers come to life, Gabor said.
Branding is not limited to external communications, though. Employment and the company are also linked, Gabor said. If the business retains someone known to have unpolular or contrversal political views that don’t align with the beliefs of the company, then the brand is at risk, she said.
And with the internet and citizen journalism moving quickly, stories can take on a life of their own at record speed, Gabor said. Thus, she advises companies to take swift, strategic but thoughtful action in speaking about issues and in firing those who run counter to the company’s mission. It’s important that they communicate concern for those involved and then state what they will do and what they believe are the root causes of the issue. Companies that do this “are the organizations that weather those storms better than others,” Gabor said.
Talking it Out
But is firing these employees always the best course of action? Sometimes simply firing someone for participating in these sorts of events is shortsighted.
“To expel them, in most cases, leads them to seek out other people with like minds and find places where their expression won’t be challenged,” said Walter Greason, historian and dean of the honors school at Monmouth University in New Jersey. Doing so can foster the spread of these views by forcing them to go underground and potentially emerge stronger later on. Thus, it’s best to attempt conversation to discuss how these views can disrupt performance of the business.
To be sure, those organizing protests for events such as the one in Charlottesville, and who appear to be committed to ideas or views that put people in physical danger, should be terminated. “At the same time, there are folks who just feel like they are bombarded with the idea that they don’t belong in the country anymore,” Greason said. “They’re kind of parroting things because they feel isolated.”
To start these conversations, it’s important to first have a human resources or diversity officer who has the educational and legal background to speak with people of every nationality and ethnicity, Greason said. Then, it’s crucial to be a listener first and let those with controversial views fully express their mindset in a way that they won’t feel judged or rejected. In Greason’s experience, they will look back on the views and events with some ambivalence and understand they should let the view go.
“It’s amazing how human beings, when given the opportunity to express themselves in an environment without being judged, can begin to heal,” Greason said.
Lauren Dixon is an associate editor at Talent Economy. To comment, email email@example.com.