Before Accepting a new Position, are you Required to Sign a Non-compete Agreement?

Closely examine noncompete restrictionsA former employee recently sued MedMar Inc. and its related companies. The suit, Greenswag v MedMar Inc., pending in the Cook County Circuit Court, alleges the defendants made misrepresentations about the employment opportunity to induce him to sign a non-compete restriction.

I haven’t reviewed the complaint, but these sorts of claims are often unsuccessful. This is because employment agreements will contain (and if yours does not, you need to update it) an “integration” or “merger” clause. These clauses are intended to nullify all prior agreements and representations not included in the final agreement. There may be exceptions or arguments to avoid an integration/merger clause, but they are just that – exceptions to the general rule.

Consider Non-compete Issues Before Joining a New Employer 

However, this suit is more important as a reminder for individuals who may be considering a change in employment. In this regard, consider these points:

  1. It is not uncommon for a new position to be oversold – especially by recruiters financially motivated to fill positions. But when this sales pitch is made, remember none of the promises, representations, etc. will likely mean anything if they are not included in the final employment agreement.
  2. Ask early in the recruiting process if a non-compete or other post-employment restriction is required. If so, get a copy as soon as possible. You will want to scrutinize the non-compete restrictions to fully understand your obligations. Often, we review post-employment restrictions that are too overly broad to the point it is a “deal-breaker” for our clients. Sometimes these issues can be negotiated. Other times, it comes down to deciding if the risks of being sidelined by a non-compete restriction are outweighed by the benefits of the job.
  3. Evaluate the new employer’s litigation history when it comes to non-compete enforcement. For our non-compete clients, we conduct a comprehensive litigation review of the prospective employer. This often provides insight into a company’s non-compete enforcment history and litigation tactics. There are some companies that will aggressively enforce a non-compete restrictions across the board. Other companies will look for compromises. Either way, it is just good to know what to expect.

For more information about non-compete restrictions or to have your non-compete agreement reviewed, contact attorney Jason Shinn. Since 2001, Jason has represented companies and individuals in all aspects of non-compete law, e.g., drafting, negotiating and litigating non-compete disputes, and drafting or responding to cease and desist demands.

Michigan’s Minimum Wage Increases January 1, 2018

Michigan is one of 18 states where employees will receive an increase in paychecks beginning January 1. Specifically, Michigan’s minimum wage will increase $0.35, raising the minimum wage to $9.25. This is the last increase under the Workforce Opportunity Wage Act, which passed back in May 2014.

According to the Economic Policy Institute, the wage increase will directly benefit 257,000 employees. It will also result in a total increase in annual wages of $219,846,000 for Michigan employees. 

In contrast, the federal minimum wage, which is $7.25, has not increased since 2009. In inflation-adjusted terms, the federal minimum wage was highest in 1968, when it was equal to $11.18 in today’s dollars. Christopher Ingraham of the Washington Post reports puts the federal minimum wage in perspective.

Among the world’s wealthy nations, the United States is an outlier on this issue: Americans have the lowest national minimum wage, relative to the median wage, of any of the wealthy nations represented in the Organization for Economic Cooperation and Development.

It is also worth noting that America’s low minimum wage relative to other nations is further exacerbated when you consider workers in other countries often receive many benefits their US counterparts do not. Such benefits include universal health care, paid maternity leave, retirement pensions, and generous vacation leave.

For more information about Michigan employment and wage law, contact attorney Jason Shinn. Also, here is the link to Michigan’s Wage and Hour Division.

Weak Links in Trade Secret and Computer Fraud Litigation

Strengtening trade secret protectionsA company’s Federal Trade Secret Claim and Computer Fraud and Abuse Act claim were recently dismissed by a Michigan federal district judge. The dismissal was avoidable. But it also offers several key lessons for employers and employees when it comes to protecting and using confidential information.

The Trade Secret and Computer Fraud Litigation

The case, Ukranian Future Credit Union v Seikaly,  is somewhat convoluted. But the Cliff-note version is that the Ukrainian Future Credit Union sued its former employee, Lidia Shibanov, in Michigan State court. That suit alleged Shibanov improperly approved loan transactions.

While Shibanov was employed by the Credit Union, she emailed to her personal email address confidential Credit Union documents. In the state court litigation, the Credit Union argued Shibanov and her lawyers improperly obtained and used the confidential information. But the Michigan state court declined to protect that information as requested by the Credit Union.

The Credit Union then sued Shibanov and her attorneys in federal court. The federal suit asserted violations of the Computer Fraud Abuse Act (CFAA) and later tried to amend to add a claim under the federal Defend Trade Secret Act (DTSA).

Against this backdrop, the Michigan Federal Court dismissed the Credit Union’s suit and denied its request to amend to add a DTSA claim. The Court reasoned:

  • The Credit Union did not allege its former employee emailed confidential information to herself intending to defraud the Credit Union. This intent was required to state Computer Fraud and Abuse Act claim.
  • The Credit Union failed to assert the information emailed by the employee to herself qualified as “trade secret” as required under the Defend Trade Secrets Act.

On this last point, the Court rejected the Credit Union’s claim that two policies (Employee Fraud Policy and “ECommerce Policies and Procedures) showed it took reasonable steps to protect the secrecy of the alleged trade secret. These policies, as the Court noted, were not directed toward protecting confidentiality, but merely set forth general parameters for the operation of the Credit Union’s e-commerce and computer systems and general prohibitions against engaging in fraudulent acts.

Why this Matters to Employees and Employers

Again, this was a procedurally complicated case. But a few points are worth emphasizing for employers and employees:

  • First, no matter the reason, employees face litigation risks if they email or download information from an employer. We frequently encounter this issue in litigation between companies and their former employers. Just because there is a “smoking gun” email or document that favors your claims or defenses does not mean you have a right to take it.
  • Second, employers must make sure business reality matches up with litigation reality. In other words, if your company has not taken steps to meet the threshold requirements for a “trade secret,” i.e., maintaining the secrecy of information that is economically valuable, then a claim for trade secret misappropriation will not be successful.
  • Third, employers must evaluate how confidential information is protected. And careful scrutiny must be applied where such information consists of “trade secrets;” Simply having general policies about the use of technology or prohibited conduct means your company may forfeit down the road a trade secret claim.

For more information about federal or Michigan trade secret misappropriation and claims relating to these issues, contact attorney Jason Shinn. On behalf of his clients, Mr. Shinn has pursued and defended against these claims in Michigan and federal courts since 2001.

When it Comes to Enforcing a Noncompete Agreement is Timing Everything?

Enforcing noncompete agreement A recent noncompete case from Minnesota offers a cautionary tale for employers and cause for celebration for employees.

The case, Safety Center, Inc. v. Stier, (11/6/17), involved an employer that ran a treatment center for special-needs sex offenders. The employer sought to enforce its noncompete agreement against a former program director (Stier).

The noncompete agreement would have limited Stier’s ability to “provide services to [Safety Center’s] clients in any competitive capacity for … one year commencing from the termination of employment,” along with other post-employment restrictions.

Stier applied to the Safety Center on May 19, 2003. She also interviewed that day for a position. The next day, Stier was mailed a letter “to confirm [Stier’s] acceptance of the position [the Safety Center] offered [her].” The letter made no mention of a noncompete agreement. On Steir’s first day of employment in May 2003, she was presented for the first time a noncompete agreement, which she signed.

Fast forward to 2014 and Steir incorporated what would become a competing business. She later resigned from the Safety Center in 2015 to run her competing business.

The Noncompete Lawsuit

The Safety Center sued Steir and her business for various claims arising out of the breaching the noncompete agreement. Enforcement of the noncompete agreement, however, came down to when Stier signed it and whether continued employment provided sufficient consideration to enforce it.

The Court concluded the noncompete agreement was not enforceable. The Court reasoned that because Stier was not presented with or given notice of the noncompete agreement at the time the employment agreement was established, the noncompete agreement was not ancillary to the employment agreement. Further, the employer did not provide any independent “consideration” to support enforcement of the noncompete agreement.

Pay Attention to When Noncompetes are Signed

In our experience in representing both businesses and individuals in noncompete disputes, the circumstances presented in the above case happen all too often. For employers looking to avoid the circumstances, it is critical to closely examine your company’s process for making job offers and obtaining noncompete restrictions.

While this case addresses Minnesota law, it is also a cautionary tale for Michigan businesses as to whether additional consideration (beyond continued employment) is required to enforce a noncompete agreement. Or put another way, did the employee receive anything of value in exchange for signing the noncompete agreement? If not, then the agreement may not be enforceable. Michigan’s highest court has yet to speak on this issue, leaving the issue open for debate.

For more information about Michigan noncompete law, contact attorney Jason Shinn. Since 2001, Mr. Shinn routinely represents businesses and individuals in drafting, negotiating, and litigating noncompete disputes.

Last Day On the Job and Employee Decides to Take Down the President

Not every company has to worry that an employee’s last day on the job will be the day the employee takes down the President (more on this below). But all companies should have policies and procedures in place to prevent a departing employee from doing harm to the company.

So this happened today, for about 11 minutes Donald Trump ceased to exist … at least on Twitter (and coincidentally, a lot of celebratory noise was coming from Chief of Staff John Kelly’s office for those same 11 minutes). According to reports, Mr. Trump’s account was intentionally deactivated by someone on their last day on the job.

Mr. Trump’s Twitter account was replaced with Twitter’s standard error message, which read “Sorry, that page doesn’t exist!” Twitter’s official account later reported that Mr. Trump’s account had been temporarily deactivated due to a “human error.” This “error” was later attributed to a rogue Twitter employee who was working his or her last day.

President Trump TwitterHandling departing employees.

Terminating the employment relationship often happens because of a resignation by an employee or discharge by the employer. And how an employer handles different terminations may vary, depending on the reason employees are departing, the employees’ length of service or performance record, and the employee’s role in the company.

But regardless of why the employment relationship ended, all employers should have a plan in place for how the employment will wind down.

The end of the employment relationship is often where the trouble starts for employers.

An important decision for employers arises when an employee gives some notice of resignation, perhaps the standard two-weeks notice. Should your company continue the employment for the entire notice or something less? The example provided by the Twitter employee who took down Mr. Trump (and everyone thought it would be Robert Mueller) shows why you may not want a departing employee to remain actively employed after giving his or her notice of resignation.

Similarly, I’m representing a company in a trade secret misappropriation case. The lawsuit involves a former high-ranking manager initiated discussions with his manager about leaving the company. This discussion took place in early September 2016 with a resignation effective on September 28, 2016. In the interim, the employee misappropriated over 5 gigabytes of data from the company’s network. This misappropriation happened (or as the defendant explained it, the employer simply “misunderstood my intention”) because the individual continued to be employed after giving notice of his resignation.

Recommendations for handling employees leaving the company. 

Here are a few additional items your company may want to consider for departing employees:

  • Exit interviews. Many employers ask their departing employees to participate in an exit interview, either in person or by completing a written questionnaire. That’s fine. But it is also a good idea to conduct a pre-exit investigation to make sure there has been no suspicious downloads or transfers of company information.
  • Reminder about post-employment restrictions. If the departing employee signed a noncompete agreement, non-disclosure restriction, or other post-employment restriction, the employee should be reminded of those obligations.
  • Employer property. You should have a policy for reminding employees to return all property belonging to employers before their last day.

Contact employment attorney Jason Shinn for more information about this post, employee terminations, or HR best practices. Since 2001, Mr. Shinn has represented employers and employees in the areas of employment laws, wrongful terminations, and noncompete and trade secret claims.

Changes to the Michigan Business Court

Amendments to the Michigan Business Court SRevising Michigan Business Court Disputestatute go into effect today, October 11, 2017. These amendments primarily focus on clarifying the cases that are to be assigned to business courts.

Also, the statute was amended to clarify a Business Court’s jurisdiction to hear business disputes involving equitable or declaratory relief. The amendment now clarifies that a Business Court has jurisdiction over business and commercial disputes where equitable or declaratory relief is sought or in which the matter otherwise meets circuit court jurisdictional requirements, i.e., the amount in controversy exceeds $25,000.

Here is a link the amendments to the Business Court statute.

An action meeting the definition of a “business or commercial dispute” that is filed in a court with a business docket must be filed with the Business Court.

It is important for employers and individuals to understand that Business Court jurisdiction includes and excludes two frequent areas of litigation.

First, Business Court’s will have jurisdiction over disputes involving noncompete agreements.

Second, excluded from the jurisdiction of the Business Court are claims involving:

  1. Any employment discrimination;
  2. Any claims involving civil rights under Michigan’s Elliott-Larsen Civil Rights Act and Michigan’s Persons With Disabilities Civil Rights Act;
  3. Wrongful Discharge (except for those actions involving corporate officers or directors; and
  4. Worker’s Compensation Claims.

In 2012, the Michigan Legislature enacted the Business Court statute. The purpose of creating a specialized business Court docket was to provide a case management structure that facilitates more timely, effective, and predictable resolution of complex business cases. Our law firm routinely litigates in the Michigan business courts throughout the state. With this experience, the business court docket has been effective in meeting the goals of achieving efficient and predictable outcomes. This is especially true when it comes to noncompete litigation because judges may – but are not required to – revise a noncompete agreement for the circumstances presented by a particular case.

For these reasons, when selecting an attorney for a matter that involves a business or noncompete dispute, it is important to understand that attorney’s experience in the applicable Business Court.

For more information about Michigan Business Court litigation, including noncompete disputes, contact Jason Shinn. He has represented companies and individuals in matters involving business disputes and noncompete litigation since 2001.

Running out the Clock in Non-compete Disputes: A Frustrating Reality for Employees

Noncompete Litigation Strategy

One advantage employers often have when it comes to non-compete disputes is time; Employers may win the war without ever doing battle simply by running out the clock. This point was a central issue in a case pending before the Michigan Court of Appeals that our law firm recently argued.

Specifically, on October 4, 2017, I argued a case before the Michigan Court of Appeals about a noncompete dispute. The underlying lawsuit (filed in Circuit Court in Detroit) was somewhat unusual in that the plaintiff had sued to challenge the enforceability of the non-compete. The challenge was both to whether it was enforceable and as applied to the particular position with the new employer.

The non-compete agreement was between the individual and one company. A subsidiary company that was not a party to the contract sought to enforce it the restrictions. This subsidiary, however, was not a party or identified – directly or indirectly – in the agreement.

The case was aggressively positioned to be decided on motions. And the trial judge had expressed agreement that the new position likely did not violate the non-compete agreement; it involved a private-sector employer and a university. While this case was pending, the prospective employer initially agreed to keep the position open. However, business needs eventually intervened and the employment offer was withdrawn.

In this regard, the defendant (the prior employer/subsidiary) argued that because the job offer that sparked the suit was rescinded the case was now moot — or close to being moot. So in essence, the employer argued that it didn’t matter whether the non-compete was enforceable or, if so, whether it would have been violated by the new position because the job offer was withdrawn. Unfortunately, the trial judge agreed. And since the enforceability of the noncompete formed the foundation of the remaining claims, the judge also dismissed those claims.

The Court of Appeals

On appeal, we made several arguments for reversal and remand. One argument was that because of other provisions found in non-compete agreement – namely an invention/intellectual property assignment – the rights, or lack thereof, of the parties continued beyond the expiration of the non-compete agreement. We also argued there was no factual or legal basis for the subsidiary – a non-party to the agreement – to threaten legal action against the prospective employer for hiring my client. So this interference was not permissible under Michigan law.

Normally, one can get a feel for the outcome based on the questions and statements from the panel. But not this time; the panel gave no indication on which way their decision was leaning and only a few questions to both sides were asked.

Time is on the Employer’s Side 

Regardless of the outcome, this appeal illustrates the significant advantage employers have over individuals with non-compete enforcement. Often sending correspondence (commonly called a cease and desist letter) to a prospective employer advising them the person about to be hired is under a non-compete restriction is enough to sabotage the employment offer. Or, an employer can just run out the clock until the offer is withdrawn.

On this point, if I could wave my magic legislative wand, I would add a bad-faith provision to Michigan’s non-compete statute. Some protections are needed to guard against frivolous or overreaching threats of litigation by employers.

As a side note, Judge Henry Saad was one judge on my panel for this appeal. This would be his last day hearing appeals before retiring at the end of next month. Judge Saad has been a Court of Appeals judge since 1994. He was also my ethics professor in law school. As a judge, one thing you could count on from Judge Saad was preparation. He was always prepared with cases he decided. That preparation will be missed.

For more information about Michigan non-compete law, contact attorney Jason Shinn. Mr. Shinn routinely represents parties involved in non-compete matters. This experience includes drafting, negotiating, and representing parties trying to enforce non-compete restrictions or accused of breaching such agreements.

Navigating Differences Under Federal and State Employment Anti-Discrimination Laws

Navigating employment discrimination laws

In what should be in the category, “water is wet,” it is unlawful to discriminate against an individual based on disability. Such prohibition applies to both the federal and at the state level.

Under federal law, employers have the Americans with Disabilities Act (ADA). Under Michigan law, there is the Persons with Disabilities Civil Rights Act (PWDCRA).

While both have similar objectives, important differences exist between them, which employers and employees must understand.

To Treat or Not to Treat: Determining the Disability of an Employee

Under the ADA, an individual has a disability if a physical or mental impairment substantially limits one or more major life activities. 42 USC 12102(2). In making this determination, the ADA initially considered the effects of mitigating factors, such as medicine or treatment, in evaluating if an individual was disabled.

But the Supreme Court later in Sutton v United Air Lines, Inc, decided that with corrective measures (in Sutton the issue were corrective lenses) to mitigate the plaintiff’s impairment did not substantially limit a major life activity and therefore they were not disabled.

The Sutton decision prompted the ADA Amendments Act (ADAAA), which legislatively overruled it. Specifically, the ADA Amendments required that a court’s determination of disability must be made without consideration to the effects of mitigating measures.

Similar to the ADA, Michigan’s PWDCRA defines disability as a:

determinable physical or mental characteristic of an individual… substantially limits 1 or more of the major life activities of that individual and is unrelated to that individual’s ability to perform the duties of a particular job or position…” MCL 37.1103(D)(i).

But in contrast to federal law, the PWDCRA uses the consideration of a mitigating measure, like medication, in evaluating disability. See Payment v Dept of Transportation, which confirmed that the Michigan legislature has not amended the PWDCRA to mirror that of the ADA. Thus, federal and Michigan law differ in their evaluating a disability with the use of mitigating measures.

An Employer Subject to Federal and State Law

In determining if an employer qualifies as a covered entity under the law, we can look to the number of employees. An employer is covered under the ADA if it has 15 or more employees. To qualify under the PWDCRA, the employer has at least one employee making it that all Michigan employers qualify. With these qualifications, an employer may be subject to comply with both federal and state law. If the employer must do so, it will be likely that the more stringent of the laws will be the applicable law.

Document, Document, Document 

Going back to the Payment v Dept of Transportation decision, this case is also significant because it showed the importance of an employer documenting employment decisions. The Appellate Court determined that the evidence presented for her claim did not show that the decision by defendants was based on discrimination. Instead, it noted there may have been poor judgment on the employer’s part but that alone doesn’t constitute discrimination.

The key to this employer victory was documentation. By documenting employment decisions an employer can offer a defense against an employee’s claims. Importantly, an employer’s decision need not be perfect; an employer may make bad decisions and judges do not have to second-guess or improve upon them. Peden v Detroit, 470 Mich 195 (2004). But those decisions must be supported with credible documentation.

For more information about complying with federal or Michigan employment laws or your rights under those laws, contact Jason Shinn. Mr. Shinn has focused on employment law since 2001.

Court Blocks LinkedIn From Restricting Access to User Profiles

Data mining LinkedIn profilesA Federal Judge recently blocked LinkedIn from restricting another company from using data from LinkedIn’s website. The suit involves Linkedin and hiQ Labs, Inc. The suit also has significant ramifications for job-seekers and employers. See LinkedIn Profiles Used to Alert Employers Which Employees are Job-Hunting.

hiQ Labs Business Depends Upon Access to LinkedIn Profiles

hiQ Lab offers data analytics services that can be used to identify employees job-hunting or likely to join a competitor. It does this by automatically “scraping” data from publicly available LinkedIn profiles. hiQ Lab’s business model relies exclusively on access to data LinkedIn users have opted to publish publicly.

In the suit, hiQ Labs sought an injunction to prevent LinkedIn from blocking its access to public profiles. The Judge granted hiQ Labs’ injunction on August 14, 2017. Here is a copy of the hiQ Labs v LinkedIn, 8-14-17 Injunction Order. In sum:

  1. LinkedIn cannot prevent hiQ Labs from accessing, copying, or using public profiles on LinkedIn‟s website.
  2. LinkedIn cannot put in place any mechanism (whether legal or technical) with the effect of blocking hiQ Labs’ access to LinkedIn’s members’ public profiles.
  3. To the extent LinkedIn had put in place technology to prevent hiQ Labs from accessing this information, it must be removed within 24 hours of issuing the Court’s Order.

The Court’s decision was met with surprise and concern from industry tech experts. A great explanation for both was provided by David Berlind, editor in chief of Programmable Web, Why Forcing LinkedIn to Allow Scrapers Sets a Dangerous Precedent for the API Economy.

Limiting the Computer Fraud and Abuse Act?

While I don’t dispute the technological concerns raised by Mr. Berlind, I think the Judge’s decision also provides a positive direction from a legal perspective.

First, the Court signaled its reluctance to expand the federal Computer Fraud and Abuse Act (CFAA) to support LinkedIn’s claim. LinkedIn initially threatened to sue hiQ Labs for CFAA violations. Rather than sit and wait, hiQ Labs took preemptive action in filing suit and seeking an injunction against LinkedIn.

The CFAA, as initially enacted, criminalized computer hacking. However, it expanded over the years to extend to civil claims. It also often applies to conduct that does not bear any semblance to “computer hacking.” But this mutation has not been without concern. Here is how the Judge in the hiQ Labs opinion summarized the conflict:

As hiQ points out, application of the CFAA to the accessing of websites open to the public would have sweeping consequences well beyond anything Congress could have contemplated; it would ‘expand its scope well beyond computer hacking.’ Under LinkedIn’s interpretation of the CFAA, a website would be free to revoke ‘authorization’ with respect to any person, at any time, for any reason, and invoke the CFAA for enforcement, potentially subjecting an Internet user to criminal, as well as civil, liability.

(internal citations omitted).

The CFAA’s expansion to civil liability often creates perverse results. For example, I represented a former executive in a discrimination and breach of contract suit against her former employer. The executive had retained copies of a handful of emails with a supervisor. These emails, however, solely discussed the executive’s terms of compensation and benefits. Further, the emails were not a secret and were properly disclosed in the litigation.

The defendant employer, however, manufactured the claim that possession of these emails made for a CFAA violation. It claimed an employee handbook that discussed the ownership of company information and returning company property had been violated. This claim didn’t gain traction with the judge or mediator, but it was not for lack of trying by defense counsel.

Similarly, the hiQ Labs opinion echoed the concern about needlessly expanding the CFAA:

… the Court has serious doubt whether LinkedIn’s revocation of permission to access the public portions of its site renders hiQ‟s access “without authorization” within the meaning of the CFAA.

Second,  LinkedIn argued that hiQ Lab’s manner of accessing the publically available information on the site (by using software to automate the scraping of user data) also violated the CFAA. The Court disagreed:

A user does not ‘access’ a computer ‘without authorization’ by using bots, even in the face of technical countermeasures, when the data it accesses is otherwise open to the public.

Similarly, it is not uncommon for companies to make similar arguments about the method of access creating CFAA liability when suing a former employee.

A common example is when an employee is given computer access in one context, but accessing it or using it in another. It may be as innocuous as downloading company data to work remotely (e.g., over the weekend, while traveling, or on vacation). But the act of removing the data from the company’s networked environment – even where the employee had permission to access the data in the first place – has been claimed to be a violation.

The LinkedIn/hiQ Labs case is not over, but winning at the injunction stage is often a huge spoiler on who will ultimately prevail. For more information about this case or issues under the Computer Fraud and Abuse Act, contact attorney Jason Shinn. He represents companies and individuals in computer fraud, misappropriation of trade secret, and other business claims.

Is it Lawful to Terminate an Employee Who Attended a Neo-Nazi or White Supremacist Rally?

Is “check to see if any employees came out to support Nazis or White Supremacist” the new normal for HR? After this weekend’s tragic and despicable events in Virginia, it looks like the answer is yes.

The events in question involved a rally of white supremacist, KKK members, and Neo-Nazis that took place at the University of Virginia. Numerous videos showcase why these organizations should be despised. Further, a peaceful counter-protester, Heather Heyer, was tragically killed and more were injured when a white supremacist is alleged to have deliberately driven his car into a crowd.

However, these hate-mongers who once hid behind hoods and on the fringe are being called out for their actions. Consider the following:

  • The Washington Post (by Maura Judkis)  reported one individual was fired after he was photographed marching with torch wielding Nazis, White Supremacist, and/or KKK members. The employee, Cole White, was identified online and his photo was widely circulated.
  • CNN reported about an online crowdsourcing campaign that identifies demonstrators who attended white nationalist rallies in Charlottesville, Virginia. The campaign, led by a Twitter account, @YesYoureRacist, asks people on social media to identify white nationalists who appear in news photos of “Unite the Right” rallies.

So this raises the question of whether employers face any risks in firing an employee for off-duty attendance at a rally supporting hate-groups like the Klan or Neo-Nazis.

For private employers, the short answer is no. Michigan, like most states, is an “at-will” employment state meaning the employment relationship may be ended for any reason that is not unlawful discrimination. Supporting racist views is not a protected category.

Further, First Amendment and free assembly protections apply to government action – not private-sector employers. But even those protections probably do not extend to circumstances like those presented over the weekend.

And if you are a Michigan employer and you have questions about firing an employee who has participated in a Neo-Nazi/KKK rally or other hate groups, please feel free to contact us for a pro bono consultation. Simply put: while some American politicians are ok with legitimizing or tolerating Nazi salutes, chanting derogatory statements about blacks, Hispanics, Jews, Muslims, or LGBTQ, or others, I do not believe that business leaders should. Do this for the good of your company and for the good of society.