Companies and organizations are distancing themselves—and trying to protect their images, reputations, and bottom lines—from the potentially harmful actions of their executives and other employees who participated in the takeover of the U.S. Capitol last Wednesday.
Against the backdrop of a faltering economy and the impact of the pandemic on businesses, things are tough enough for companies without having to contend with the fallout from the bad behavior, poor conduct, and questionable decisions of people on their payroll. After all, bad press can quickly lead to protests and boycott by the public, negative online reviews, and a decline in sales.
A recent poll found that a majority of registered voters perceived the storming of the Capitol by mobs of pro-Trump supporters as a threat to democracy. The mere fact that their workers took part in such a controversial and destructive event—especially if their participation was documented by news organizations and social media—was reason enough for companies to terminate them immediately.
Taking Immediate Action
Violation of Core Values
The CEO of Cogensia, a marketing firm in suburban Chicago, was terminated Friday by the company’s baord of directors. According to Bloomberg, his “’actions were inconsistent with the core values of Cogensia,’ ‘ according to a statement by a company official. “Cogensia condemns what occurred at the U.S. Capitol on Wednesday, and we intend to continue to embrace the values of integrity, diversity and transparency in our business operations, and expect all employees to embrace those values as well.”
Seen On Twitter One Day, Fired The Next
As reported by the Associated Press, “A printing company in Maryland saw the photo on Twitter Wednesday night: an employee roaming the halls of the U.S. Capitol with a company badge around his neck. He was fired the next day.
“Others are facing similar repercussions at work for their participation in Wednesday’s riot at the U.S. Capitol. Some business owners are being trashed on social media and their establishments boycotted, while rank-and-file employees at other businesses have been fired.”
Protecting The Brand
Angelique Rewers is the CEO and founder of The Corporate Agent. “If a company feels that the actions by [their] officials are not in alignment with what they stand for as a brand, then the worst thing they can do is put their heads in the sand and hope this all just goes away,” she said.
“Before they get called to the mat in the press and on social media, they should take proactive action. The next worst thing a brand can do is respond to the market with insincere and tone-deaf statements. It’s astonishing how many brands end up having to apologize for their apologies.
“In this case, smart companies will be ready to respond if and when they are asked. They should be ready to share what steps they’ve already taken, why specifically they feel the actions taken by certain elected officials do not align with their brand’s values and, most importantly, how they will make changes in evaluating which candidates to support going forward. We’re in a consumer-driven environment where the sentiment is show me, don’t tell me,” Rewers observed.
Employees Can Be Held Responsible
Kia Roberts, founder and principal of Triangle Investigations, said “Companies, when deciding what actions they should take when discovering that their employees were within this group, should first examine their Codes of Conduct/Personal Conduct Policy. Despite what many employees may believe, employees can in fact be held responsible for their actions while not at work, and for actions that occur outside of work hours.”
She noted that, “…it looks like the majority of employers are erring on the side of terminating employees that were involved in the assault on The Capitol. Employers must commit to a consistent plan for evaluating and interrogating the conduct of their employees, especially in these politically tense times.
A Principled Response
“Exhibiting a principled response, in a transparent and consistent fashion, when responding to these serious acts of misconduct, helps companies to burnish their credentials as thoughtful employers who are committed to creating and maintaining workplaces that do not tolerate extreme acts of misconduct from their employees.
“Additionally, an increasingly educated and activist customer base demands bold and decisive actions for employers with respect to the behavior of their employees,” Roberts said.
Abigail (Abby) Larimer, an employment attorney at Morris, Manning & Martin law firm in Atlanta, said, “Employees may be terminated for participating in the protests at the Capitol. Absent an employment contract, collective bargaining agreement, or other applicable agreement, most employment in the United States is ‘at-will,’ which means that employees may be terminated at any time, for any reason.”
No First Amendment Rights
She noted that, “…while it is a common misconception that employees are protected by the First Amendment, the First Amendment does not apply to private employers and does not guarantee an employee’s right to a job with a private employer.
“Certain states, like New York, have laws that restrict an employer’s ability to take employment actions based on an employee’s activities outside the workplace. Employers should be aware to assess whether any state laws might be applicable.”
Matthew Gomes, a labor and employment lawyer at Weinberg Wheeler Hudgins Gunn & Dial, said that “…if an employer can identify its employee as someone who engaged in illegal conduct during last week’s riot, such as by a photograph, video, or social media post, that should be sufficient to support terminating that employee.”
A Low Threshold
“Critically, in most of these cases, the employer does not have to prove that the employee actually engaged in the misconduct for which he or she was disciplined or fired. Rather, the employer need only establish that it had an honest, good faith belief that the employee is guilty. Thus, if the employee claims, ‘It wasn’t me,’ the employer does not have to accept that excuse if the photographic, video or other evidence tends to show otherwise,” Gomes observed.
Evaluate Based On Facts, Context, and Impact
“Actions based on an employee’s participation in a protest or similar event should be evaluated based on the specific facts and context,” Larimer advised.
Citing guidelines from the Equal Employment Opportunity Commission, she noted that, “…employers should not make an employment decision solely on the fact an employee was arrested but should consider the conduct that led to the arrest.
“Here, if an employee is arrested for participating in last Wednesday’s events, an employer would be right to consider the nature of the events that occurred when evaluating what employment action to take. Employers will also want to consider the impact that retaining employees who participated in the Capitol protests may have on the employer’s image and employee morale,” she counseled.
Gregg Feistman, assistant chair for public relations at Temple University, said “Companies need to have a note of caution when dealing with these issues. If employees and executives attended and participated in the peaceful march, or advocated for peacefully demonstrating, they have the right to do that.”
But “If they were involved in encouraging or participating in the violence that subsequently took place, that’s a different matter. If their employees or executives took action that broke the law, they are subject to due process and possible punishment to the full extent the law allows.
In all cases, with their legal counsel, companies should abide by what their corporate policies say, and to the extent necessary, revise where appropriate. Publicly, companies need to condemn and distance themselves from all acts of violence committee by the insurrectionists, and especially of any of their people were involved in it,” Feistman advised.