Van Wey, Metzler & Williams

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Can You Get Fired for Protesting? The Six Questions You Need to Ask Before You Go

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Although the First Amendment offers protection for free speech and peaceful assembly, this protection only goes so far in the workplace. First Amendment protections extend to public-sector employees but do not protect employees in the private sector. Rather, there is no explicit federal legislation that protects at-will employees’ speech or peaceful assembly in the private sector. There does exist the National Labor Relations Act. However, it only goes so far in giving employees the right to engage in “concerted activities” when it is in an effort to improve pay, benefits, or working conditions rather than activities unrelated to the workplace. In contrast to federal law, state laws can vary on what restrictions they place on a private employer’s right to fire their employees. For example, some states such as California and Colorado prohibit employers from discriminating against an employee for participating in “lawful off-duty conduct.” 

Although there may not be explicit federal legislation offering protections for employees who want to attend a protest or post their opinion online, there may be an exception that exists. Employers may not discriminate against employees “on the basis of sex, race, color, national origin, or religion.” This law applies to both public and private sector employers and places a duty on employers to prevent and promptly correct harassment and discrimination in the workplace. If an employee can show that they were fired for participating in a public protest that was connected with their sex, race, color, national origin or religion, that employee may have an argument that he or she is being subject to unlawful discrimination. 

So what options does that leave you? If you are considering voicing your opinions online or attending a protest, ask yourself the following questions:  

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1. Are you an at-will employee? 

At-will employees are not protected by a contract or a bargaining agreement and a private employer can fire an at-will employee without a cause as long as it is not discrimination based on race, age, religion, gender, disability or a protected class. If you are not an at-will employee, it is important to read your employee contract.

2. What are your employer’s policies? 

Depending on what policies are in place, employers may have implemented restrictions on what off-duty conduct employees can engage in. By familiarizing yourself with your employer’s policies you will have a better grasp as to what is or what is not condoned. As a reminder, Title VII of the Civil Rights Acts prohibits discrimination in employment.

3. What are the labor laws in your state?

Check the specific employment laws in your state since some states have laws or provisions that protect employees from being terminated for “lawful off-duty conduct” or for exercising their First Amendment rights.

4. Is the activity you engaged in, whether it is a protest or expressing an opinion online, related to your sex, race, color, national origin, or religion?

Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of sex, race, color, national origin, or religion. An argument could be made against a termination that originated from the employee’s participation in or expression of something related to those categories. Something employees will want to be cognizant of while in this space is that being an at-will employee technically gives the employer the power to terminate an employee without a reason. As an employee, be wary of company policies and ensure you follow policy and procedure as closely as possible when engaging in these activities to minimize the reasons for which you could be fired. 

5. What are you saying online and when are you saying it? 

Employees have a greater amount of speech rights when they are outside of work. While you are working, though, your employer has a right to demand your attention and therefore has an interest in limiting your personal social media use. Employees generally lack protection when discussing matters unrelated to work, such as personal views on topics in the news, but employees do have the right to post about an employer on social media if it would otherwise be considered a “concerted activity” by the NLRB. If the social media post embarrasses or disparages the employer, or is conducive to the discrimination or harassment of others, then the employee may be at risk of losing their job. 

6. Were you part of something unlawful or arrested during the protest?

You may be engaging in legal activity while protesting but if you are arrested for even minor violations your employer could fire you for being arrested for what was deemed as “unlawful activity.” State laws may vary on this point as well so, again, it is important to review the laws in your state before engaging. 

As we have seen recently, peaceful protests can turn violent and people can get injured. If you are injured during a protest in a public place or partly as a result of negligence of a property owner, you could pursue a premises liability claim either against the city or the property owner if they were negligent in providing adequate security. If you are injured during a protest and you know who caused that injury then you are likely able to hold the person(s) liable directly. If that person is a law enforcement officer, you can start by filing a written complaint with the agency’s internal affairs division or with the civilian complaint board. Taking it a step further, you could file an action against an officer but be wary of qualified immunity. Qualified immunity is a legal doctrine that shields government officials from being held personally liable for discretionary actions performed within their official capacity unless their actions violate “clearly established” federal law. This means that it is possible for police officers to be protected if they commit certain constitutional violations, such as the right to be free from excessive police force.

We believe in your right to protest. Do you have a case you’d like us to review? Contact us for a free consultation now and a team member will review your case shortly.

By: Kay Van Wey | June 11th, 2020

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