Trump loyalists descend on the Capitol Building in an attempt to overthrow the presidential election … [+] Joe Biden. (Photo by Spencer Platt / Getty Images)

Getty Images

The search continues to identify members of the mob who stormed the United States Capitol to overthrow an American presidential election.

Metropolitan DC Police Department tweeted social media photos Thursday morning asking the public for help trying to figure out who got inside. US attorneys representing districts far from Washington, as well as the one overseeing Minnesota, have signaled, “If we can prove that you traveled from MN to DC to commit violent crime, @DMNnews im prosecuted to the full extent of the law. Tech-savvy citizens are feverishly sucking in the photos and videos people have taken 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 that many who occupied the exterior or made it to the Capitol eventually dispersed to their hotels, the airport or highways, home, and perhaps back to their jobs . Law enforcement is chasing them. HR might get there first.

The reasons for resignation listed in Wednesday’s mob employee handbooks do not include “Revolt against the United States.” It won’t matter. In the coming weeks, many of the pro-Trump rioters could be laid off with jobs based on very different rules and a faster process.

So far, at least publicly known, only a handful of employees who were supposed to be in the crowd have been fired or their jobs have been questioned. But the number is growing. Including:

  • Maryland-based Navistar Direct Marketing announced Thursday that it had fired an employee they identified in photos of the crowd. Apparently he wore a company badge. “After reviewing the photographic evidence, the employee in question was dismissed for cause,” said the company.
  • Texas-based Goosehead Insurance announced Thursday that it had fired its associate general counsel. “We’re all trying to get to the Capitol to stop this, and that’s exactly what is happening. They gas us in tears. That’s not acceptable, “said a man who was identified in media reports as a Goosehead employee in an Instagram video. “All of my history shows that I was demonstrating peacefully,” reported the Dallas Morning News, which he later published. “You gassed the whole lot that was there with me. I didn’t try to break in. I just talked to the cops and prayed about them. “
  • Illinois-based data management company Cogensia tweeted Thursday, “Our CEO Brad Rukstales attended the recent protests in Washington DC. These actions were his own and were not acting on behalf of Cogensia, nor do his actions in any way reflect the policies or values ​​of our company. He’s been on leave while we continue investigating. “Rukstales tweeted a statement late Thursday that” in a moment of extremely bad judgment “he followed hundreds of others through an open door to the Capitol to see what was going on inside. “It was, he said in a statement tweeted by Chicago television station WGN,” the worst personal decision of my life. “

The move from thousands of initially peaceful rallies from the south of the White House to some rioters within the Capitol Building is likely to take place in criminal proceedings in the months or years to come. It can also become an important case study of the rights and obligations of workers and employers.

While law enforcement is actively looking for people who have breached security, it can be assumed that most HR departments simply hope that none of their employees have been there. Many executives across the country wait in fear for someone to e-mail a photo that says, “Hey, isn’t that Bob from Shipping?” or: “Doesn’t she have the corner cabin in building four?” However, once this is announced, company management will be forced to investigate, browse social media, look up vacation requests, call managers and employees, and email the management consultant.

It will be faster at work than in the US law firms. Employees have no right to blame themselves when interrogated by their managers. The evidence bar is far lower, if any. HR can take hearsay into account. You don’t need subpoenas. TV reporters do not warn Miranda before interviewing anyone who may be accusing himself of termination of employment at Reagan National Airport. Most importantly, you don’t have to have committed a crime to get fired.

There is a danger that executives will act rashly and unfairly in their quest to distance themselves from such an unprecedented and heinous event, especially when the employee is first identified and raved, dismounted and pecked on social media, as is usually the case is.

Whether someone who has participated will be fired – and whether that termination will stand if challenged in court – depends on a combination of a number of key questions. These are among the most fascinating.

Protests as a joint session of the Congress confirm the result of the presidential elections

Will the Capitol Police Barricades prove to be the boundary between getting a job and keeping it? … [+] fired? (Photo by Graeme Sloan / Bloomberg)

© 2021 Bloomberg Finance LP

Have you crossed the line? Assuming an employee wanted to go to Washington and attend the Trump event, the 52-acre ellipse where the original rally was held was the safest place to work – though it’s not perfectly safe for most workers. Somewhere between there and the rotunda or the chambers of the House and Senate was a line through which a person could be arrested. There was also a physical line, perhaps not the same, which, once crossed, could fire it.

Is the employer public or private? Assuming a public service employee has acted in general, has not crossed police lines, and is employed by a government agency, he or she may be insured. “Public employers, as the arms of government, are bound by the first amendment and generally cannot restrict freedom of expression by punishing workers for engaging in protected activities of the first amendment,” write civil rights attorneys Andrew Melzer and Whittney Barth in a University of California law Illinois review article after the murder of George Floyd. However, this protection is not absolute, especially if the behavior of the employee interferes with the work of the agency, office or department.

Private company employees obey different rules, a fact lost to many workers who believe that the protection of freedom of speech in the workplace is almost absolute. The first amendment reads: “Congress cannot legislate. . . ”It doesn’t say:“ Employers are not allowed to make politics. . . ”Depending on the state and employment contract, many private employees are considered to be employed“ at will ”. They can be terminated at any time or for any reason, and also terminated for a non-discriminatory reason. Employees at will are at risk of losing their jobs, even if they merely caused the embarrassment of their company by shouting on their phones with the riot in the background.

In what condition is the person employed? Some state laws protect political action. The rally participants, who stayed peaceful and flew from California to Washington, returned to protect this clause: “No employer may force, influence, or attempt to adopt its employees by or by threatening to lay off or lose employment Forcing or influencing or following or refraining from a particular course or line of political action or political activity. “Most states, however, do not have such laws.

Did the clerk lie about his free time to get to Washington? Someone who took the time and then showed up on Instagram looking exceptionally healthy and shouting unsubstantiated claims of election fraud in the National Mall could be fired for falsifying their season ticket regardless of whether they followed the other rules.

Did he or she wear the company logo? Claiming what you’re doing with your own time is much more difficult when there are photos of this person wearing an identifiable organizational uniform, hat, or t-shirt. This is especially true now when Twitter can light up when people retweet the photo, tag the company, and (insincerely) ask, “Hey, @CompanyX, are you a corporate sponsor of the Rebellion?”

What did the employee say and how did he or she act? As hyperbolic as the rally was, most of what happened on the ellipse was political speech and demonstration, which falls right under the protection of the First Amendment. However, “arguments” and incitement to “impending lawless acts” are not protected, even when carried out outside the Capitol. You can prosecute a person, especially if there is a riot. They can fire a person, especially because the company doesn’t have to go through the criminal line to decide whether it is best if they part ways.

How were other political demonstrators treated? If an employee of a company has been fired or retained after breaking civil disobedience, for example in a protest against Black Lives Matter, this may well determine the leeway the organization has with pro-Trump protesters. In arbitrary states in particular, however, there is no watertight ban on dismissing someone whose management does not agree with their extreme policies.

How clear is the evidence? Posting on social media “seems like the functional equivalent of sharing a photo at work,” wrote Philip Bump of the Post. “It becomes especially difficult when this footage documents criminal activity on a historical scale.” While the photos and videos are being analyzed, there is a good chance the minute by minute movements of any worker who broke in are known, and these people will eventually have to explain themselves to federal judges but first to their superiors.

We don’t know how many stayed home or at least were removed from the Capitol and thought, “I’m not going to lose my job.” It would be nice to believe that infinitely more people stayed away from it because they respect the country’s democratic institutions and didn’t want to be part of something that was as likely to kill people as it was.

But if the risk of firing serves as another guard rail to shape the nation’s civic processes as the founders intended, and upon which depends the free market system that creates so many of these jobs, this is an additional guard rail, that we could currently use.