The case for firing participants in riot
Just over a week ago, we were all presented with an unprecedented picture of insurrection against our national government. Stirred up to a boiling point, a mindless mob of self-declared “patriots” attacked the Houses of Congress with the intention of intimidating its members into invalidating Joseph Biden’s and Kamala Harris’ election.
Apparently lacking real direction or leadership, they rampaged through the Congress invading offices, smashing windows and riffling Congresspersons’ papers, seemingly at random. One person was shot and killed on the spot, several more were injured or suffered medical emergencies during the riot; some of them, including at least one Capital police officer, died. More than 50 law enforcement officers were hurt.
Now the question has been raised whether participants in such mob action can be fired from the jobs that they hold at home; in our case, in Connecticut, as a result of their employer’s distaste for their participation in the Washington riot.
The answer is not simple or without doubt, but I say — yes. They can be and they should be fired from their jobs. Those who would argue otherwise look for succor to a Connecticut statute that protects employee free speech and expression from adverse workplace consequences. I contend that participants in the Capitol invasion stand well outside of the scope of such statutory protection.
Violent attempts to overthrow or, in this case, directly impact the operations of government do not constitute protected speech under the federal or Connecticut constitutions. They are not covered by any state statute. Indeed, no violent action that threatens to cause either serious bodily injury or property damage is protected speech, nor is actual speech that is intended to cause violent action on the part of the listeners.
When reviewing this situation, however, one must remember that the rioting does not diminish the protected rights of those who attended the pre-riot protest meeting, but did not participate in the attack on the Capitol. Gathering and listening to the president and others, no matter what was said, is protected activity and employment discipline would be inappropriate in their cases.
If an employer desires to take action against an employee who it believes was involved in the riot, the first and most important point is to make absolutely certain that the subject employee was a rioter. Simple word of mouth from other employees is just not enough. The employer should have clear proof of the employee’s activity. Something like a photo would be best. In fact, evidence not including a photograph of the employee should be viewed with a jaundiced eye.
Here’s an example. A company in Maryland, shortly after the riot, announced that an employee had been terminated after he was photographed wearing his company ID badge inside the breached Capitol building.
The further away from photographic proof of participation in the violence an employer goes, the greater the likelihood of making a mistake. Such a mistake can have very harsh adverse legal consequences for the employer.
Violence has no place in the politics of our democracy. Workplace law does not protect those who engage in it. No employer must or should tolerate the continued presence of such barbarians as those who attacked our Capitol within its workforce. Fire ’em.
Violence has no place in the politics of our democracy. Workplace law does not protect those who engage in it.