If your employee stormed the Capitol, you can probably fire him

As the nation processed the full impact of protesters’ recent breach of the U.S. Capitol building, the FBI warned of potential armed protests in all 50 states. Many participants in the ransacking have been identified from video and photos, often posted on social media by the rioters themselves. Some of the insurgents, including one man photographed wearing a company ID lanyard around his neck, have been fired or suspended from their jobs. With more protests likely forthcoming, North Dakota employers are wondering whether they can lawfully fire employees who participate in similar outbreaks. For private employers, the answer in most cases is “yes.”

Laws on political beliefs, off-duty conduct

Many employees believe they can’t be disciplined or terminated for their political beliefs or conduct committed while off the employer’s clock. Are they right?

The North Dakota Human Rights Act (NDHRA) does indeed protect employees from discrimination based on off-duty participation in lawful activities. Specifically, N.D.C.C. § 14-02.4-03 provides it’s unlawful for an employer to discriminate against an applicant or employee based on the individual’s “participation in lawful activity off the employer's premises during nonworking hours [that] is not in direct conflict with the essential business-related interests of the employer.”

The NDHRA’s “lawful activities” provision, however, doesn’t cover individuals engaged in activity that isn’t “lawful.” Moreover, it provides no protection based on political beliefs to nongovernmental employees. In short: