WHAT I WOULDN'T DO: Legal Updates from HR's Trenches: When you discover you employ a U.S. Capitol rioter.

• Author: Hyman, Jon

Imagine that you learn one of your employees was part of the hoard of rioters who stormed the U.S. Capitol on January 6 in an act of open rebellion against the United States.

Can these people be fired from their jobs? Answer: Absolutely!

"But Jon," you ask, "doesn't the National Labor Relations Act protect individuals' political advocacy while they're on their own time in nonwork areas?"

The answer: It depends. Under the NLRA, the protection of employees' political advocacy depends on when that advocacy occurs and how it is expressed.

* Nondisruptive political advocacy for or against a specific issue related to a specifically identified employment concern, which takes place during the employees' own time and in nonwork areas = protected.

* On-duty political advocacy for or against a specific issue related to a specifically identified employment concern = subject to lawful and neutrally applied work rules.

* Leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern = subject to restrictions imposed by lawful and neutrally applied work rules

Thus, employees who were merely present at the speeches on January 6 might enjoy some employment protections depending on an employer's policy, as would employees expressing political opinions in other venues, such as pro-life/pro-choice rallies or Black Lives Matter protests.

But as to employees who breached...