- Probably.
- As an employment “at will” state, Illinois employers have a lot of freedom when firing their employees.
- Some protected activities, like breastfeeding and voting, cannot be used as grounds for termination.
Can I Fire A Capitol Rioter? “Employment At Will” in Illinois
Can I fire an employee for participating in the Capitol riots? As an employment “at will” state, Illinois probably permits it, depending on the circumstance. The unrest on January 6th left many employers asking this question. As images spread of Confederate and white supremacist symbols invading the center of our democracy, citizens and legislators alike called for consequences, and some of the rioters now face criminal charges. But the clamor for justice wasn’t limited to the courtroom, and many employers are wondering when they can fire employees for off-duty conduct.
We wrote this blog post after the 2017 Nazi protests in Charlottesville, Virginia. It seems suddenly and terribly relevant.
Disclaimer: This article focuses on the law in Illinois, and when Illinois employers can fire employees for activities outside of the workplace. The law varies in each state. Some states even have laws saying that an employee cannot be fired for any lawful, off-duty activities. (For example, Colorado, North Dakota, and California (1) (2))
Can I fire an employee for being a Capitol rioter?
In Illinois, most likely. Illinois is an employment “at will” state. This means that employers can fire employees for any reason unless prohibited by law or against public policy. Illinois has limited employee protections for political affiliations and off-duty activities. Keep reading for some specific examples.
Was the action taken “off-duty”?
Employers generally have the right to terminate employees for inappropriate actions taken while working or while on the employer’s premises. Most activity done at work, on work premises, or that affects other employees can be a reason for termination (not including protected activities, like breastfeeding or taking necessary medication). There are some protections for employees engaging in off-duty activities, like smoking and drinking, although not many. Illinois does not prohibit employment termination where employees engage in Nazi activities, either on or off duty.
What about politics and “employment at will”?
Sometimes. Illinois law definitely prohibits employers from attempting to coerce an employee’s vote or stopping employees from voting. Employers are also prohibited from gathering or keeping a record of employee’s associations, political activities and publications in the employee’s personnel file. However, nothing in Illinois statutes prohibits firing an employee for off-duty political activities if such activities are unrelated to voting.
Can I fire an employee for posting a swastika or other hate rhetoric on Facebook?
Usually. In Illinois, employers can usually take action against an employee based on what they post on social media, unless something within the post is protected by another law. Employers can’t require employees to: give employers their password, open their media page in front of the employer, join specific groups on social media, or connect with the employer on social media. This may make it more difficult for employers to locate employees on social media, or to see private posts. However, if an employer does find an employee’s social media, nothing in Illinois law prevents the employer from firing the employee based on their posts. Since the state assumes employment to be “at will,” employers can usually terminate the employee.
What about Free Speech and “employment at will”?
“You don’t have to agree with what they’re saying, they have the right to say it.” This defense often comes up when a group or individual speaks up with racist, homophobic, or other hateful rhetoric. This statement greatly misinterprets the Constitutional protection of free speech. The First Amendment only prohibits government interference from free speech; other individuals or non-governmental companies are free to react. The right to free speech does not protect an individual from being fired by a non-governmental employer for what they say.
Can I fire an employee for being arrested?
The first thing employers in Illinois need to know is that it is illegal to discriminate against an employee based upon an arrest or arrest record. Employees cannot be fired for the mere fact that they have been arrested. However, you can fire an employee for activities taken off-duty that may lead to an arrest. Examples include attacking someone or destroying public property. What’s the difference? The employer needs to confirm that that the fact of the arrest is not swaying their decision. They can only fire their employee for actually doing something worthy of termination. If you would terminate an employee for those actions alone, then you don’t have to keep them on just because they were arrested. Keep in mind that many employees may still interpret this as termination due to an arrest, and might sue the employer for wrongful termination.
With “at will” employment, can I fire an employee for using alcohol or drugs?
Illinois has a very clear law on this matter. Employers cannot discriminate against employees for the use of lawful products, such as alcohol or tobacco. However, employers can terminate employees for illegal use of products. Additionally, employers can have policies in place prohibiting or monitoring the use of certain lawful products at the workplace. However, those policies must comply with the Americans with Disabilities Act or any other applicable laws.
What if these actions affect the company or other employees?
Fortunately, almost all states (Illinois included) have an exception stating that any action that harms the employer can lead to termination. This comes up a lot in social media. For example, say an employee drunkenly posts on social media in a way that connects them and/or the alcohol back to the employer. This might cause negative press for the employer. If the employee’s actions actually harm the employer in some way, the employer may be able to take action against the employee.
Can I fire employees protesting for a higher wage?
Federal law prohibits employers from preventing any union activity, including forming a collective bargaining unit and/or striking. Are employees organizing to bargain with their employer? Most such activities are protected under the National Labor Relations Act. Employers cannot retaliate against employees for these actions, even in an “at will” state.
Takeaway and General Issues to Consider
Illinois employers can usually terminate employees for off-duty activities unrelated to protected conduct, like voting or using a legal product. There are some general laws that employers should always keep in mind when determining whether to terminate or discipline an employee, like discrimination and retaliation claims. Illinois prohibits taking action against an employee based on a protected trait (In Illinois: race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, pregnancy, or unfavorable discharge from military service) or as retaliation for certain legal conduct, like reporting the employer for violations or using medical leave.
Even when you have the right to terminate an employee, many will still sue for wrongful termination. Nothing can completely eliminate the risk of lawsuits. Employees can also get very creative in wrongful termination suits. For example, many employees argue that their termination “violates public policy”. The courts sometimes look favorably on this argument, which is why employers need to review the facts and the laws carefully. The attorneys at G & G Law can help with questions and concerns – contact us today to set up a consultation.
