Who Will Find The Insurrectionists First: Law Enforcement Or HR?

The search is on to identify members of the mob who stormed the United States Capitol to overturn an American presidential election.

The Metropolitan D.C. Police Department tweeted out social media photos Thursday morning asking the public’s help in identifying who got inside. U.S. attorneys representing districts far from Washington have signaled, as did the one overseeing Minnesota, “If we can prove you traveled from MN to DC to commit violent criminal acts, then you will be prosecuted by @DMNnews to the fullest extent of the law.” Tech-savvy citizens are feverishly sucking up the photographs and videos people shot and posted of themselves before they can be deleted, The Washington Post reported Friday.

That so few people were arrested on the spot or shortly thereafter means many who occupied the exterior or barreled into the Capitol Building eventually dispersed back to their hotels, to the airport or highways, to home and perhaps back to their jobs. Law enforcement is hunting them down. Human Resources might get there first.

The enumerated causes for termination in the employee manuals of Wednesday’s mob do not include “Insurrection against the United States.” It won’t matter. Over the coming weeks, based on much different rules and a faster process, many of the pro-Trump rioters with jobs could get fired.

So far, at least as is known publicly, only a handful of employees alleged to have been among the crowd have been terminated or their jobs put in question. But the number is growing. Among them:

• Maryland-based Navistar Direct Marketing announced Thursday it terminated an employee they identified in photos of the crowd. He was apparently wearing a company badge. “After review of the photographic evidence the employee in question has been terminated for cause,” said the firm.
• Texas-based Goosehead Insurance announced on Thursday it had fired its associate general counsel. “We’re all trying to get into the Capitol to stop this, and this is what’s happening. They’re tear-gassing us. It’s not acceptable,” a man that media reports identified as the Goosehead employee says on an Instagram video. “It’s obvious from my entire story that I was peacefully demonstrating,” The Dallas Morning News reported he subsequently posted. “They gassed the entire crowd that was standing there with me. I was not trying to break in. Was just talking to the police officers and praying over them.”
• Illinois-based data management firm Cogensia tweeted Thursday: “Our CEO, Brad Rukstales, participated in the recent Washington DC protests. Those actions were his own and not acting on behalf (of) Cogensia nor do his actions in any way reflect the policies or values of our firm. He has been placed on leave of absence while we assess further.” Rukstales tweeted a statement late Thursday that “in a moment of extremely poor judgment” he “followed hundreds of others through an open set of doors to the Capitol building to see what was taking place inside.” It was, he said in a statement tweeted by Chicago TV station WGN, “the single worst personal decision of my life.”

The movement of thousands of initially peaceful rally-goers from south of the White House to some becoming rioters inside the Capitol Building will likely be played out in criminal proceedings over the coming months or years. It may also become a prominent case study in the rights and responsibilities of employees and employers.

While law enforcement is actively searching for those who breached security, it’s safe to assume most HR departments are simply hoping none of their employees were there. Many corporate executives around the country have to be waiting with trepidation that someone will email a photo saying, “Hey, isn’t this Bob from Shipping?” or, “Doesn’t she have the corner cubicle in Building Four?” Once on notice, however, the company’s leadership will be forced to launch its own investigation, poring over social media, looking up vacation requests, phoning managers and coworkers, and emailing the corporate counsel.

Things will move faster at work than in the U.S. attorneys’ offices. Employees don’t have a right against self-incrimination when interrogated by their managers. The evidentiary bar is far lower, if it exists at all. HR can consider hearsay. They don’t need subpoenas. TV reporters do not give Miranda warnings before interviewing people who spout potentially job-ending self-incrimination in Reagan National Airport. Most important, one does not need to have committed a crime to get fired.

There is a risk that in their eagerness to distance themselves from such an unprecedented and abhorrent occurrence, executives will act rashly and unfairly, especially if the employee is first identified on social media and it swarms, descends and pecks away as it tends to do.

Whether someone who participated will be fired – and whether that termination would hold up in court, if challenged – will depend on the combination of a number of key questions. These are among the most intriguing.

Did they cross the line? Assuming an employee wanted to go to Washington and be part of the Trump event, the most job-secure place – although not perfectly safe for most workers – was the 52-acre Ellipse where the original rally was held. Somewhere between there and the Rotunda or the House and Senate chambers was a line that can get a person arrested. There was also a physical line, maybe not the same line, that once crossed can get them fired.

Is the employer public or private? Assuming a public employee generally behaved, didn’t cross any police lines, and is employed by a government entity, he or she may be covered. “Public employers, as arms of the government, are bound by the First Amendment and generally cannot abridge freedom of speech by punishing workers for engaging in protected First Amendment activity,” wrote civil rights attorneys Andrew Melzer and Whittney Barth in a University of Illinois Law Review article in the wake of the killing of George Floyd. But that protection is not absolute, especially if the employee’s conduct interferes with the work of the agency, bureau or department.

Private company employees go by different rules, a fact lost on many workers who believe free speech protections are near-absolute in the workplace. The First Amendment says, “Congress shall make no law . . .” It does not say, “Employers shall make no policy . . .” Depending on the state and the employment agreement, many private employees are considered “at will” hires. They can quit at any time or for any reason and can also be terminated for any non-discriminatory reason. At-will employees are at risk of losing their jobs even if they simply caused their companies embarrassment by yelling into their phones with the revolt in the background.

In which state is the person employed? Some state laws protect political action. The rally attendees who stayed peaceful and who flew to Washington from California returned to the protection of this clause: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” Most states, however, don’t have such laws.

Did the employee lie about their time off to get to Washington? Someone who took sick time and then showed up on Instagram looking exceptionally healthy yelling unsubstantiated claims of election fraud on the National Mall could be fired for falsifying her or his timecard, regardless of whether they followed the other rules.

Did he or she wear the company logo? Claiming what one does with one’s own time is one’s own business gets a lot harder if there are photos of that person wearing an identifiable organization uniform, hat or T-shirt. This is especially true now, when Twitter can light up with people retweeting the photo, tagging the company and asking (insincerely), “Hey, @CompanyX, are you a corporate sponsor of the Rebellion?”

What did the employee say and how did he or she act? Hyperbolic as the rally might have been, most of what happened at the Ellipse was political speech and demonstration that falls squarely within First Amendment protections. However, “fighting words” and inciting “imminent lawless action” are not protected, even if done away from the Capitol. They can get a person prosecuted, especially if a riot ensues. They can get a person fired, especially because the company does not need to meet the criminal threshold to decide it would be best if they parted ways.

How have other political protestors been treated? If a worker at a company was terminated or retained after line-crossing civil disobedience as part of, say, a Black Lives Matter protest, it may well determine the latitude the organization has with pro-Trump demonstrators. However, especially in at-will states, there is no watertight prohibition against terminating someone with whose extreme politics the company leadership disagrees.

How clear is the evidence? Posting to social media “seems like the functional equivalent of passing a photo around at work,” wrote the Post’s Philip Bump. “It becomes particularly fraught when that footage is documenting criminal activity at a historic scale.” As the photos and videos are analyzed, chances are the minute-by-minute movements of every employed person who broke in will be known and those people will have to explain themselves eventually to federal judges, but first to their bosses.

We don’t know how many stayed home or at least away from the Capitol Building thinking, “I’m not losing my job over this.” It would be nice to believe that infinitely more stayed away because they respect the country’s democratic institutions and they didn’t want to be a part of something so likely to get people killed, as it did.

But if the risk of termination serves as one more guardrail to keep the nation’s civic processes running the way the Founders intended, and on which the free market system that generates so many of those jobs depends, it’s an additional guardrail we could use at the moment.