There has been a flurry of news reports about individuals getting fired from their jobs because they participated in the January 6th storming of the U.S. Capitol. It is understandable to wonder, “Is that legal?”
In short, yes. There are very few limits on an employer’s right to terminate an employee, including participating in a protest.
But isn’t that political discrimination or an infringement on free speech?
Under federal law, it is legal for employers to terminate an employee for any reason, or no reason at all—commonly known as “at will” employment—except for a few specific exceptions. Exceptions are very limited in scope and include terminations that discriminate based on a protected status (such as race or religion), firing employees because they refuse to take a lie detector test, and terminating in retaliation for making certain kinds of reports (such as sexual harassment or OSHA complaints).
One might think the “free speech” clause of the Constitution’s First Amendment would bar termination based on an employee’s political affiliation, speech, or conduct, but the First Amendment applies only to regulation of speech by the government. That’s why public libraries or universities, which are technically governmental employers, are restricted from firing an employee based on political speech.
But political discrimination is not a protected class in the private sector. Private employers are not subject to the same political restrictions as government actors. Private employers are generally free to regulate the speech of their employees, both within and outside of the workplace. In fact, most employers can even terminate a worker’s employment simply based on social media posts.
What about Illinois law?
Only a few states prohibit discrimination based on political activities or affiliation and Illinois happens to be one of those states. Illinois employees enjoy increased speech protections in the private sector. For example:
- It is illegal to use threats or intimidation to prevent a person from supporting or opposing a political candidate. 10 ILCS 5/29-17.
- An employer cannot keep records of an employee’s off-duty political activities unless the employee submits written records to the employer and allows the employer to collect them. 820 ILCS 40/9.
- It is also illegal in Illinois to discriminate against an employee based on an arrest record. 775 ILCS 5/2-103.
However, employees can be fired for activities engaged in while off duty, such as destroying public property or other activities that may lead to an arrest. Employers must ensure that the basis for such a decision is the actual act of the employee and not the arrest. There are also exceptions where an employee’s conduct harms an employer. Employers are additionally free to prohibit hate speech or speech that incites violence, and to terminate an employee who engages in such conduct.
While employees can be disciplined and even terminated for some of their outside activities, employers should always proceed with caution when assessing an employee’s activities outside the workplace. Protected activity is often intertwined with unprotected activities and the two can often be hard to differentiate, especially in a state like Illinois that offers broader protections to employees than many other states. It is always best to carefully evaluate circumstances before making a rash decision that could further inflame the divisiveness we all already experience.
If you have questions regarding political speech and the workplace, consult an employment attorney to determine your rights.