HR Management & Compliance

Can an Employee Be Fired for Protesting?

2020 is already shaping up to be one of the most divisive election years in recent memory. In the last few months, there have been protests about beach closures, mask requirements, and police reform. Some cities have had consecutive, daily protests for over a month. During this time of heightened political activity and emotions, it is important to be mindful of the applicable laws unique to employers.

protest
Outline of a crowd of angry people,

While every state is different, in this article we’ll focus on California and the variety of laws in play. Here we will focus on four: California Labor Code Sections 96(k), 98.6(a), 1101, and 1102. (Note: All subsequent references to the Labor Code concern the California Labor Code.)

An Overview of California Labor Laws

Together, Labor Code Sections 96(k) and 98.6(a) prohibit employers from discriminating, retaliating, or taking any adverse employment action (up to and including termination of employment) because the employee or applicant engaged in lawful conduct during nonworking hours away from the employer’s premises.

Labor Code Sections 1101 and 1102 concern political activity by employees. Employers are prohibited from making or enforcing any rule or policy that forbids or prevents employees from: (1) participating in politics; (2) becoming candidates for public office; or (3) controlling or directing the political activities or affiliations by Labor Code Section 1101.

Employers are also proscribed from coercing or influencing or attempting to influence an employee to engage or refrain from engaging in any particular political action or activity by threatening loss of employment by Labor Code Section 1102. While these rules are straightforward, the application of these rules can quickly become difficult and complex.

Here’s an Example to Clear Up the Confusion

Let’s say Michael and Michelle work for Generic Manufacturing, Inc. Michael decides to participate in a Black Lives Matter protest downtown during nonworking hours. At the same time, Michelle decides to engage in a counterprotest against Black Lives Matter at the same location, also while off the clock.

They don’t wear any particular article of clothing identifying Generic as their employer. Both passionately engage in rigorous political debate, including holding signs, yelling chants, and marching through the streets. Neither engages in any forcible, violent, or otherwise unlawful activity while participating.

Michelle’s supervisor discovered she participated in the event after perusing her Facebook and Twitter accounts, which contained photos of the protest and posts expressing her strong opinions. Michael’s supervisor discovered his participation in the protest after spotting him marching in a news report. Both supervisors are outraged over each employee’s participation in the event and want to immediately terminate Michael and Michelle. Can they? Why or why not?

Can We Terminate Our Workers for Protesting?

As a practical matter, an employer’s decision to terminate or discipline an employee should be based on an objective assessment of both the individual’s job performance and the business needs of the company.

If the employee is otherwise a solid performer, and if the behavior does not interfere with the operation of the business, an adverse employment decision may be difficult to explain; undermine morale in the workforce; and, on balance, have more negative than positive results.

In the above scenario, based on the interpretation of the law, Michael and Michelle would be protected from retaliation for participating in the protest and counterprotest on their own time. Additionally, the employer could not discriminate against the employees for tweeting about the movement, for posting photos and opinions on their personal Facebook pages, or even for discussing the event with coworkers during an employee’s rest break.

An employee probably cannot walk off the job in order to protest, but if the political activity is otherwise lawful and doesn’t interfere with the employee’s work, it should be protected.

Moreover, because the United States and California Constitutions both protect the right of the people to peaceably assemble and petition for a redress of grievances, terminating an employee for participating in a political protest might also violate the common-law prohibition on terminating employees in violation of public policy.

Bottom Line

In sum, it is advisable to seek legal advice before any potential adverse employment action is taken against an employee for his or her participation in political rallies, demonstrations, or protests.

An employee’s off-duty conduct covers a wide variety of issues and as current events continue throughout the nation, employers may be faced with a plethora of issues that surface in the workplace. Join Blake J. Woodhall for the live webinar, “Thou Doth Protest Too Much – An Employer’s Guide to Dealing with Off-Duty Conduct,” on Tuesday, August 18, 2020. You will receive an overview of state and federal law related to off-duty conduct, with an emphasis on best practices in dealing with an employee’s participation in political protests and the world of cancel culture. Click here to learn more, or to register today.

Blake J. Woodhall, Esq. is Senior Counsel in Pettit Kohn Ingrassia Lutz & Dolin PC’s San Diego office, and can be contacted at bwoodhall@pettitkohn.com. Shannon R. Finley, Esq. is a Shareholder out of the San Diego office and can be contacted at sfinley@pettitkohn.com.