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My Employee was in a White Supremacist March, Can I Fire Them?

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Posted by: CEA's HR Advisor Team on Wednesday, August 23, 2017 at 12:00:00 am

OkCupid, a national on-line dating site, recently banned white supremacist Chris Cantell from their site, after a documentary about the “Unite the Right” rally in Charlottesville, VA featured him expressing his violently racist views.  OkCupid stated that their site is for “love not hatred,” and went on to say that Cantell violated their “content-neutral policy”.

Cole White was fired from a Berkeley, CA restaurant last week, after being spotted marching in Charlottesville with Nazis and called out on Twitter.  The restaurant quickly responded to the press, stating that their employee was not fired, he resigned.  They were probably quick to comment because of California’s strict labor laws.     

Can an employer in California fire an employee who marches in a KKK rally or participates in a Planned Parenthood or Black Lives Matter event?   The answer is, it depends, you’d better do some homework first.       
   
Lawful Off-Duty Conduct

California prohibits employers from taking adverse action against employees because of legal, off-the-clock activities.  Employers may not coerce employees, discriminate or retaliate against them, or take any adverse action because they have engaged in political activity. This law also covers employees who are family members with people who have engaged in political activity. (Cal Labor Code 98.6(a) (e), 1102)

California also prohibits employers from adopting any policy, rule or regulation that forbids or prevents employees from engaging or participating in politics or from running for office. (Cal Labor Code 1101)

National Labor Relations Act (NLRA)

Above and beyond the State laws, Sections 7 and 8 of the NLRA provides that employees have the right to discuss and complain about terms and conditions of employment and/or engage in concerted activities for the purpose of mutual aid or protection. (29 U.S.C 157)  The U.S. Supreme Court has interpreted this provision to mean that employees may organize as a group to “improve their lot” outside the employer-employee relationship.   Depending on the nature of the activities your employee engages in, it may violate the NLRA to penalize them.

Advice for Employers

Your decision to terminate or discipline an employee should always be based on an objective assessment of the individual’s job performance and your business needs. If the employee is otherwise a solid performer whose behavior does not interfere with the operation of your business, an adverse employment decision may be difficult to explain and have more negative than positive results. Unless the activity is criminal in nature, proceed with caution before penalizing employees for their off-duty conduct.

Founded in 1937, CEA is a not-for-profit Employers Association. Membership in CEA provides employers with valuable HR support, including phone advice, on-site assistance and a variety of tools and resources to assist with employee relations issues. More information at employers.org or 800.399.5331.

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4 comments on "My Employee was in a White Supremacist March, Can I Fire Them?"

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Jessica - HR Director on September 5, 2017 at 2:56:20 pm said:
Robin - that is a great question that requires more questions from us to give you a worthwhile answer. If you are a member, please call us so we can talk this issue out with you further!
Roibn on September 5, 2017 at 9:55:38 am said:
What if this person was wearing the company logo.
Private comment posted on August 29, 2017 at 11:22:45 am
Private comment posted on August 24, 2017 at 1:28:27 pm

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