Recently-Unemployed Rioters and Wrongful Termination Claims

It has been reported that those identified as being present at, and/or having expressed support for, the U.S. Capitol riot(s) of January 6, 2021 have lost their jobs or are otherwise facing discipline. To what extent does such action violate their rights as employees?[1]The below discussion is confined to New York law and federal law as applied and interpreted by New York-based federal courts.

If a private-sector employee has an employment contract that defines the circumstances under which they can be terminated (e.g., “for cause”), and if the employee’s conduct does not meet that definition, they might have a claim for breach of contract.

If the employee has no contract and there is no agreement for employment of a definite term, they are generally presumed, under New York law, to be an “at will” employee. This means, in sum, that absent a statutory violation – such as of one or more of the anti-discrimination laws (see below) – the employer may terminate the employee for any reason, a good reason, a bad reason, or even for no reason at all.

Federal laws, New York State laws, and local (NYC) law prohibit discrimination because of one’s membership in a so-called protected class, such as race, sex, national origin, religion, sexual orientation, age, or disability. So if the employee who attended the Capitol protest was fired, but another similarly-situated employee outside their protected class who engaged in similar conduct was not, they may have a status-based discrimination claim under one or more of the anti-discrimination laws.

New York’s so-called “lawful activities” law, Labor Law § 201-d, provides, in part, that

2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:

a. an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal, provided, however, that this paragraph shall not apply to persons whose employment is defined in paragraph six of subdivision (a) of section seventy-nine-h of the civil rights law, and provided further that this paragraph shall not apply to persons who would otherwise be prohibited from engaging in political activity pursuant to chapter 15 of title 5 and subchapter III of chapter 73 of title 5 of the USCA …

The statute, however, narrowly defines “political activities” as “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group[.]” N.Y. Labor Law § 201-d(1)(a).

Government employees are entitled to broader protections under the First Amendment, which protects the rights to free speech and to peaceably assemble. Thus a government employee may have such a claim if they (1) suffered an “adverse employment action”, (2) because (3) they engaged in “protected activity.”

1 The below discussion is confined to New York law and federal law as applied and interpreted by New York-based federal courts.
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