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Capitol insurrection leads to job loss, search for participants

Employers interested in whether their employees took part in the U.S. Capitol insurrection and stormed the building may want to proceed with caution, legal and HR experts said.

The FBI posted a Tweet Thursday seeking help to identify people who stormed the U.S. Capitol. Social media users were already on the job, flooding Twitter with dissected images and video of the mob scene. It quickly led to the job loss of at least one person.

A man wearing a red Trump hat and a black hoodie from the 2017 inauguration was photographed inside the Capitol wearing his work badge. Social media's response was incredulous and informative. 

The badge was blurry, but it didn't take long for social media users to identify the name of the firm, NDM Navistar -- also known as Navistar Direct Marketing. One Twitter user tagged a company official. Navistar reacted quickly. 

The Frederick, Md., firm placed the employee on administrative leave Wednesday while it conducted an investigation, according to a tweet. On Thursday, it fired the unidentified worker. 

Navistar reacted to images circulated on public social media channels and calls for action. But if firms go on a hunt for employees who participated in the U.S. Capitol protests that turned into what many are calling an insurrection, legal and HR experts recommended they proceed with caution. 

"There's going to be a line between was an individual engaging in unlawful conduct or were they engaging in peaceful protest conduct?" said Rebecca Baker, a labor and employment attorney at Bracewell LLP in Houston. 

"One reason an employer might shy away from a social media deep dive is it's going to be very difficult for them to know the precise facts," Baker said. 

It may be reasonable for employers to review corporate emails if they suspect they are about illegal activity, according to Baker. But for an employer "to take action or want to take action, it's going to have to be a fairly clear policy violation." 

Companies will have to determine the intent behind the email in question. Was it sent to coordinate with another employee about meeting up for a peaceful protest or to coordinate something unlawful? she asked.

There's going to be a line between was an individual engaging in unlawful conduct or were they engaging in peaceful protest conduct?
Rebecca BakerLabor and employment attorney, Bracewell LLP

The employer will also have to consider its own motivations in searching emails and social media accounts, Baker said. Have they conducted similar searches in response to social or political protests in the past? If not, "why are you doing it now?" she asked. Some states have laws that prevent employee retaliation for political activity, and it could create legal risks for firms to go down this path, she warned. 

You need a real reason to search

Baker said an employer might create legal peril if they decide to go on a fishing expedition, but that's different from ignoring a tip or concern raised by an employee worried about illegal behavior. 

David Lewis, president and CEO at OperationsInc, an HR consulting firm in Norwalk, Conn., advised against a proactive review of employee emails and social media channels, saying it opens themselves up to discrimination claims and other potential risks. 

"It would be a dangerous step for an employer to take such action," Lewis said. "To proactively search for guilty parties like this easily could cross the line on where an employer should operate."

Companies that go down this path could be singling out employees who could turn this around and call it discrimination, Lewis said. The pursuit may appear, for example, to be based on an employee's political views, which may not align with the employer or its leaders, he said. 

"It all seems extremely risky and not worth the risk," Lewis said. 

If a firm knows an employee was involved in an illegal activity, Lewis believes it's up to the authorities to conduct the investigation, "which may lead to the employer being directed to search emails." That's a far better and less risky approach, he said. 

Meanwhile, the FBI is trying to gather all the information it can from social media. "We are accepting tips and digital media depicting rioting or violence in and around the U.S.," it said in its tweet Thursday. 

Navistar's statement about the badge-wearing employee was this: "While we support all employee's right to peaceful, lawful exercise of free speech, any employee demonstrating dangerous conduct that endangers the health and safety of others will no longer have an employment opportunity with Navistar Direct Marketing."

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