In light of the recent Nazi protests occurring in Charlottesville, Virginia, many employers are left wondering when they can fire employees for being a Nazi, or for activities done outside of the workplace. Employers are facing important questions, such as:
Can you fire an employee for being a Nazi?
Can you fire an employee for posting a swastika or other hate rhetoric on Facebook?
Can you fire an employee for being arrested?
Some employers have already taken action. After the protests began in Charlottesville, some users on social media began to identify some of the the protesters and some employers used that information to fire employees they discovered to be Nazis.
Below we talk about when employers in Illinois can fire employees for off-duty conduct.
Disclaimer: this article focuses on the law in Illinois, and when Illinois employers can fire employees for activities outside of the workplace. The law varies in each state, some states even have laws saying that an employee cannot be fired for any lawful, off-duty activities. (For example, see Colorado- Colorado Revised Statutes 24-34-402.5; North Dakota- ND Cent. Code Sec. 14-02.4-01; and California- Cal Lab Code 96(k) & 98.6.)
Can I fire an employee for being a Nazi?
In Illinois, most likely. Illinois is an employment-at-will state, which means employers can fire employees for any reason unless the reason is prohibited by law or against public policy. Illinois has limited employee protections for political affiliations and off-duty activities. See the other questions and answers below to help clarify what employee actions are protected.
Was the action taken “off-duty”?
Employers generally have the right to terminate employees for inappropriate actions taken while working or while on the employer’s premises. Most activity done at work, on work premises, or that affects other employees can be a reason for termination (not including protected activities, like breastfeeding or taking necessary medication). There are some protections for employees engaging in off-duty activities, like smoking and drinking, although not many. Illinois does not prohibit employment termination where employees engage in Nazi activities, either on or off duty.
What about politics?
The Illinois law regarding employee protected political activity is tricky. Employers definitely cannot attempt to coerce an employee’s vote or prohibit employees from voting. 10 ILCS 5/29-17. Employers are also prohibited from gathering or keeping a record of employee’s associations, political activities and publications in the employee’s personnel file. 820 ILCS 40/9. However, nothing in Illinois statutes prohibit firing an employee for off-duty political activities if such activities are unrelated to voting.
Can I fire an employee for posting a swastika or other hate rhetoric on Facebook?
In Illinois, employers can usually take action against an employee based on what an employee posts on social media, unless something within the post is protected by another law. 820 ILCS 55/10. Employers can’t require employees to: give employers their password, open their media page in front of the employer, join specific groups on social media, or friend the employer. This may make it more difficult for employers to locate employees on social media, or to see private posts. However, if an employer does find an employee’s social media, there is no law preventing the employer from firing the employee based on his or her posts.
What about Free Speech?
“You don’t have to agree with what they’re saying, they have the right to say it.” This is a defense often seen floating around the internet and in conversations whenever a group or individual speaks up with racist, homophobic, or other hateful rhetoric. The problem with this statement is that free speech is often misinterpreted. The First Amendment only prohibits government interference from free speech, it does not prohibit other individuals or non-governmental companies from reacting to such speech. The right to free speech does not protect an individual from being fired by a non-governmental employer for what they say.
Can I fire an employee for being arrested?
The first thing employers in Illinois need to know is that it is illegal to discriminate against an employee based upon an arrest or arrest record. 775 ILCS 5/2-103. Employees cannot be fired for the mere fact that they have been arrested. However, employees can be fired for activities taken off duty, such as attacking someone, destroying public property, or other activities that may lead to an arrest. The important distinction here is that the employer needs to confirm that the employee actually did something worthy of termination, and are not being swayed by the arrest. If you would terminate an employee for those actions without an arrest, then you don’t have to keep them on just because they were arrested. Keep in mind that many employees may still interpret this as being terminated due to the arrest, and may still try to sue the employer for unlawful discharge.
Can I fire an employee for using alcohol or drugs?
Illinois has a very clear law on this matter. Employers cannot discriminate against employees for the use of lawful products, such as alcohol or tobacco. 820 ILCS 55/5. However, employers can terminate employees for illegal use of products. Additionally, employers can have policies in place prohibiting or monitoring the use of certain lawful products at the workplace, provided that those policies do not violate the Americans with Disabilities Act or any other applicable laws.
What if these actions affect the company or other employees?
Fortunately, almost all states (Illinois included) have an exception stating that any action that harms the employer can lead to termination. This comes up a lot in social media. For example, an employee that gets drunk and posts it on a social media site that connects the employee and/or alcohol back to the employer might cause negative press for the employer. If the employee’s actions actually harm the employer in some way, the employer may be able to take action against the employee.
Can I fire employees protesting for a higher wage?
Federal law prohibits employers from preventing any union activity, including forming a collective bargaining unit and/or striking. Most employee-concerted activities undertaken to engage in bargaining with an employer are protected under the National Labor Relations Act, which means that employers cannot retaliate against employees for these actions.
Takeaway and General Issues to Consider:
For the most part, Illinois employers can terminate employees for off-duty activities that are not related to voting, use of a legal product, or some other protected conduct. There are some general laws that employers should always keep in mind when determining whether to terminate or discipline an employee, like discrimination and retaliation claims. Illinois prohibits taking action against an employee based on a protected trait (In Illinois: race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service) (775 ILCS 5/1-102) or as retaliation for certain legal conduct, like reporting the employer for violations or using medical leave.
One other important thing to keep in mind is that there are many times that employees sue employers for terminating them even when the employer had the right to do so. Nothing can completely eliminate the risk of lawsuits. Employees can also get very creative in wrongful termination lawsuits. For example, many employees argue that their termination “violates public policy”. This is sometimes effective in a lawsuit, which is why it is very important for an employer to look over the facts and the laws carefully, and contact a lawyer if they have any questions or concerns about the situation.