Several people who have been identified as racists through social media after the Charlottesville, Virginia, rallies have lost their jobs. That raises the question: Is it legal to fire employees for activities they do outside of work?
As a digital marketing manager in Sioux Falls, Jon Peterson knows what’s trending on social media, including the “Yes, You’re Racist” Twitter account.
“We’re more connected and exposed than ever before,” Peterson said.
The man behind the account is using images of the Charlottesville marches to identify participants. Several of those identified have now lost their jobs.
“I would counsel my clients to be very careful,” Attorney Jen Bender with Davenport, Evans, Hurwitz & Smith said.
Bender says firing employees for things they do when they’re not at work could be risky.
“Governmental employers would have a much harder time because the First Amendment clearly applies to their employees. They would have much more freedom outside of the workplace to express their political views,” Bender said.
Bender says private employers, especially in South Dakota, could potentially fire an employee for off-the-job activities, such as participating in a racist march.
“South Dakota has very few laws that apply to employers. It is an at-will employment state, so an employer can terminate an employee for any reason as long as it’s not an illegal reason,” Bender said.
Just one state to the north though the law is a lot different.
“North Dakota has a state law that specifically would prohibit you from terminating somebody for legal, off-duty conduct. Arguably marching in a parade and carrying a swastika is legal, off-duty conduct,” Bender said.
Even though you might not lose your job, Peterson says you should still think before you post or participate in a questionable activity because it may prevent you from finding another job in the future.
“Where’s the one place they can get an unfiltered view of who that person is potentially really is? It’s their social media accounts,” Peterson said.
Accounts that are holding some accountable.
Each state has different laws regarding political statements and the workplace.
You can check out a state-by-state guide here.