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What rights do companies have to fire employees identified as rioters?

Yahoo Finance's Alexis Keenan joins Kristin Myers to break down the rights employers have to fire workers if they're caught rioting.

Video Transcript

KRISTIN MYERS: But I want to talk now about those pro-Trump rioters who had looted the Capitol. They've now been finding out that they have been losing their jobs when they returned home. We have Yahoo Finance's Alexis Keenan here with us now for more information. Hey, Alexis.

ALEXIS KEENAN: Hi, Kristin. So for these workers we really need to separate them into two different categories and ask two different questions. One is can the employer fire the worker for participating in a protest? And can they fire them for participating in a crime? Now the straightforward scenario there, as you might guess, is participating in a crime, yes. Employers can use an employee's criminal action as a basis to let that employee go.

Now for mere lawful participation in a protest, that involves more legal analysis. And it's going to depend much on the state, the jurisdiction, where that protester employee works. Now in some states, employees cannot be fired solely for off duty lawful activity like a demonstration like what happened on Wednesday. Now that's typically true regardless of whether that off duty activity is of a political nature. Though sometimes states have a more narrow exception, and that's called a public policy exception that is specifically protecting the types of political activities and affiliations of the worker.

Now it's going to also be different though. And we have a graphic, a full screen, to show you. It's going to be a different analysis too based on whether the employee is a government worker or whether they work for a private company. Now government workers will have in addition to any state and local legal protections, they'll also get constitutional protection. That includes their First Amendment rights to prevent the government from interfering with their freedom of speech, with their freedom to assembly. But in the end, it's all going to be based on jurisdiction. And so we can expect to see a lot of those cases go through that analysis. Kristin?

KRISTIN MYERS: Alexis, really quickly. I'm wondering how much you see social media really playing as part of this issue. One, we saw a lot of these rioters frankly filming themselves, taking pictures of themselves, and posting it online maskless. So everyone knew who they were in some instances committing these crimes. But at least on that point of the right to protest, we also saw throughout the summer a lot of folks going out in, for example, anti Black Lives Matter demonstrations and then there being very large calls after they were involved in confrontations, calls for their firing even from private companies.

Would something like that be protected under law, a job like that be protected if someone lost it for saying or making unsavory comments or something like that at a protest and then posting it online?

ALEXIS KEENAN: Yeah. Well, you know Kristin, employees do not have the right to free speech in terms of their relationship with a private employer. And it's going to have to go through that analysis. If it is a government worker, it's going to look very very different because they have those additional constitutional rights to free speech. And it's going to be jurisdictional as well.

So these are really case by case judgment calls. I did see one Twitter post where one of the employees who did get inside the Capitol was fired supposedly for wearing the corporate badge that he would need to go on and off the premises of his company inside the Capitol. Now we could argue that that employee was a trespasser and therefore was breaking the law. But there's going to be a lot of different scenarios I think that you'll see in addition to the social media argument.

KRISTIN MYERS: Yeah. I think a lot of companies sensing a perhaps PR nightmare ahead of them from seeing some of their employees out looting and perhaps even stealing items from the Capitol into the coming days. So it's no surprise to me that some of these folks are receiving pink slips as a result of their activities this week. Alexis Keenan, thanks so much for breaking all of that down and answering some of those legal questions for anyone out there.