Businesses across the country are cutting ties with workers who took part in last week’s insurrection at the United States Capitol. Employees are being identified through news videos as well as photos and blogs that they themselves posted on the internet/social media.
It is not just lower-level employees who are being terminated. USA Today is reporting that Goosehead Insurance, a Texas-based insurance company, fired its Associate General Counsel, Paul Davis, after he posted a video on Instagram about how he was trying to get into the Capitol to stop the certification of the election and had been tear-gassed while wearing a MAGA hat.
Bradley Rukstales, the CEO of Cogensia, an Illinois-based data management company, was fired after he was arrested at the Capitol during the insurrection on Wednesday. He subsequently admitted entering the Capitol building during the riots and apologized for doing so. Cognesia’s COO, who has taken over leadership of the company, announced that “Rukstales' actions were inconsistent with the core values of Cogensia” justifying the termination decision.
California Laws
In California, there are four primary statutes that come into play when considering the termination (or other adverse action) of employees for their activities at the nation’s Capitol on January 6, 2021.
Labor Code 2922
In California, there is a presumption of at-will employment, set forth in section 2922 of the California Labor Code. That statute provides that unless there is a written, oral or implied contract to the contrary, employment for an unspecified term is presumed to be at-will, and the employer can terminate the employment relationship with or without cause.
Labor Code 1101
Labor Code 1101 provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling, directing, or tending to control or direct the political activities or affiliations of employees.”
Labor Code 432.7
Section 432.7 of the California Labor Code prohibits employers from terminating or disciplining an employee because of “any record of arrest or detention that did not result in conviction.”
Labor Code 96(k)
Section 96(k) of the Labor Code, gives the California Labor Commissioner jurisdiction to investigate and seek remedies on behalf of any employee who is denied wages as a result of engaging in lawful off-duty conduct. Section 98.6(b)(1) of the California Labor Code states that if an employee is terminated for engaging in lawful off-duty conduct protected by section 96(k) he/she is entitled to reinstatement and reimbursement for lost wages.
The intersection of these laws is what is important when analyzing whether or not there are legally protected grounds for terminating an employee for their participation in the events at the United States Capitol on January 6, 2021.
If the employee, like most private sector employees in California, is employed at-will, then the broad protections of the presumption apply and termination is proper unless the termination violates a statute. If the employee has an individual contract or is subject to a collective bargaining agreement, then the employer must prove that the activities of the employee somehow constitute good cause/misconduct or whatever the appropriate contract standard is for involuntary termination.
The remainder of the article will focus on at-will employees not subject to contractual restrictions, as those types of employees make up the majority of California’s private sector workforce.
First, it is important to note that in California, employees are generally free to engage in lawful political activities without interference by their employer. This right is protected by both sections 1101 and 96(k) of the California Labor Code. Employers cannot force employees to toe the company political line or force their employees to adapt to and express the political beliefs of company leadership. Employers that choose to take a political stance must therefore provide their employees with space to differ. Thus, if employers are terminating employees because they support or supported Donald Trump, wore a MAGA hat or carried a MAGA or Trump flag, or engaged in similar activities, such a termination is very likely a violation of section 1101 of the Labor Code and not permissible. Such a termination may also be a violation of section 96(k) giving the employee reinstatement rights and the right to lost wages under section 98.6 of the Labor Code.
Second, employers may not terminate an employee because he or she was arrested as a result of the employee’s participation in the insurrection on January 6, 2021. Cognesia’s termination of its CEO, Bradley Rukstales, would be a violation of section 432.7 of the California Labor Code, if the termination was implemented as a result of the arrest and the employer did not have any independent evidence of activity by Rukstales that was either designed to incite violence or hate, or was illegal (for example, actually entering the Capitol).
California law does not completely prohibit the termination of California employees for participating in the insurrection on January 6, 2021. If there is evidence that the employee engaged in illegal activity, or activity designed to incite violence or hate against a certain group, and such evidence is the true reason for the termination, the California Labor Code does not prohibit the termination. For example, if there is evidence that the employee (a) entered the Capitol as part of the insurrection, assaulted an officer, member of the press or other person during the event, stole or vandalized property, or engaged in other illegal activity, and this is the reason for the termination (as opposed to the employee’s political views or the fact that the employee was arrested or detained), a decision to terminate will likely be upheld. In addition, if the employee engaged in hate speech and shouted things like or had signs or shirt stating: “Jews shall not replace us,” “White Power,” “Camp Auschwitz,” “Black Lives Do Not Matter,” or similar phrases, these types of actions are also highly unlikely to be protected under California law as political activities.
Employers should always check with legal counsel before terminating an employee due to participation in the January 6 insurrection, but, based on the applicable laws of California, we can offer the following general guidelines:
- It is not advisable to terminate or discipline an employee just because he or she was present in DC or near the Capitol on January 6, 2021 or because he or she is pro-Trump (or pro-Biden).
- If the employee was arrested, this cannot be a basis for the termination (unless the arrest caused the employee to miss work without authorization in which case it might be). The employer should perform its own independent investigation into the facts surrounding the incident forming the basis of the arrest and base the termination decision on evidence from the investigation, not the arrest itself.
- Before terminating, employers should have solid objective evidence that the employee engaged in some type of illegal activity, or engaged in some activity inciting violence (such as threats to commit violence that were made, brandishing a noose, or wearing a Nazi symbol or some other symbol/speech of hate/violence). Otherwise, without such evidence, it may be difficult to overcome the presumption that the termination was based on the employee’s political beliefs and/or his or her lawful off-duty conduct, either of which could give rise to a successful lawsuit.
- Prior to termination, employers should always make sure there is not an applicable employment contract or collective bargaining agreement that provides further restrictions on termination beyond those set forth in statutory law.
Most other states do not have the same protections as California does when it comes to political activities, lawful off-duty conduct, and being subject to arrest or detention by law enforcement. Just because a termination might be legal in another state, does not mean it is proper in California. Therefore, it is important that California employers properly analyze the applicable laws and consider speaking with experienced California employment counsel before terminating or taking other actions against employees for their actions at the Capitol on January 6, 2021.
