In the days following the violent pro-Trump riots at the Capitol last week, arrests started piling up—so, too, did employment issues, as companies quickly sought to distance themselves from those who carried out the attack. It has been reported that a number of rioters were either terminated or resigned in the wake of their participation in the insurrection: a West Virginia lawmaker, a CHRO at an insurance company, a tech company CEO. With thousands in D.C. that day for what was billed as a protest, hundreds later stormed the seat of U.S. government—many of whom recorded their involvement on social media. As a result, an untold number of employers are now having to consider taking action.
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“For the HR leaders who are still sitting on their hands believing they can’t set precedent by terminating an employee who was part of a violent protest, you’re wrong,” says Tim Sackett, president of HRU Technical Resources and an HRE Top 100 HR Tech Influencer. “We set precedent every single day in our jobs, and you want to be on the right side of history with this precedent.”
In making that decision, many employers are likely first considering their legal authority to terminate, which is relatively broad, as the First Amendment doesn’t offer protection in private sector employment. All employees should be held to the same standards of conduct, notes Marta Moakley, XPert HR legal editor, and, if the employer learns of “unethical, biased or criminal conduct, even if the acts occurred off duty, the employer must take appropriate action.”
“Depending on an employee’s actions—especially if criminal—discipline, up to and including termination, may be appropriate,” she says.
Of particular concern today, she adds, is an employee’s participation in a risky, out-of-state, large gathering, which could expose the workplace to COVID-19.
Employers, led by HR, should ensure their rules, practices and policies—particularly related to employee conduct—are compliant with local, state and federal laws. Any employment investigation should be mindful of employee privacy, she adds.
Logic, sound judgment and common sense all need to prevail in any investigation, says Kris Dunn, CHRO at Kinetix and also an HRE Top 100 HR Tech Influencer.
“This is the world of the HR leader and employment calls: People come to us with a claim, and it’s up to us to figure out what actually happened,” he says.
For instance, HR leaders may want to make a distinction between those who participated in a low-level demonstration in D.C. and those who actually entered the Capitol, he notes, presuming the former is a “functioning member” of the company and didn’t commit any illegal activity.
“Our employees are watching. They watch what we do and what we don’t do.” Tim Sackett
“Real HR leaders have to look at the facts,” Dunn says. “People pay HR leaders to be the grown-ups when bad situations happen and calm minds are needed—and the good news is that’s exactly what we are.”
Moakley adds that, while an employer may make different disciplinary decisions regarding employees who, on the surface, engaged in similar conduct, the employer should meticulously document the reasons for taking a particular course of action and ensure that the “need for fairness and consistency was taken into consideration throughout the process of discipline.”
While HR needs to respect the privacy of its workers in such investigations, it’s likely that colleagues of rioters—as well as communities the organization serves—are aware of their involvement and looking to the company for a response.
“Our employees are watching. They watch what we do and what we don’t do,” Sackett says. “As leaders, we have to be transparent about our actions, and sometimes that means taking a side and living with that decision.”
Organizations can’t make every employee happy—that’s obviously impossible, Sackett says. Some workers will lean left and others right, and the employer should support their ability to hold differing political viewpoints.
“But that becomes tricky when it leads to violence and destruction,” he says. “At that point, regardless of your leanings, we have an organizational right to protect all of our employees and our brand. At the end of the day, we still have a business to run—and most businesses run best with limited conflict.”
To guard against future conflicts, now is a good time for all organizations to revisit conduct policies, Dunn says. Such standards should not only list specific behaviors expected—and prohibited—in the workplace but also should include broad language about conduct outside of the workplace.
“Great professional conduct policies provide flexibility for HR leaders because you can’t cover every scenario this crazy world is going to throw at you,” he notes.
Ultimately, a strong and sustainable culture is predicated upon attracting and retaining a workforce that adheres to organizational values. Taking decisive action today, Sackett says, can set a standard for what the company believes in.
So, “do what is right,” he says, “and you’ll attract more people who believe in you and your mission.”