At Sanford Heisler Sharp we are committed to the bedrock principle of equal justice under law. We support and stand behind peaceful protests to bring about long-needed societal reform, take on systemic racism, and make our world a better place for everyone. In the familiar words of Dr. King, “Injustice anywhere is a threat to justice everywhere.”
As employment lawyers, we are also committed to the rights of workers and support their efforts to be treated fairly in accordance with the law. Given our role as employee advocates, we are able to provide a certain insight into what employment protections the law may provide for workers who engage in peaceful political activity on their own time.
Our assessment of relevant laws and doctrines that we think could potentially apply in these types of circumstances is set forth below. It is meant only as a starting point and is not intended and should not be viewed as legal advice.
So what is our take? Can you be fired for non-violent political activity, such as peaceful protests against societal discrimination and on other matters of public concern?
The answer may depend on whether you are a public or private employee and where you live and work. In any case, even if there is not a legal solution for politically motivated terminations, there may be a public relations or organizing angle that could hold your employer accountable and potentially protect your job.
Government Workers
Under the U.S. Constitution, Government employees are protected from retaliation for exercising their First Amendment rights to free speech and assembly. This is because public employers, as arms of the government, are bound by the First Amendment and generally cannot abridge freedom of speech by punishing workers for engaging in protected First Amendment activity.
In general, to assert a claim, a government employee must show (1) that he or she spoke on a matter of public concern; (2) that he or she spoke as a private citizen; and (3) the protected speech was a substantial or motivating factor behind an adverse employment action.
If the employee establishes these elements, the burden shifts to the government employer to demonstrate that its legitimate administrative interests outweigh the employee’s First Amendment rights or that it would have taken the same action even in the absence of the protected conduct. In short, courts are tasked with balancing the interests of the government as an employer and the employee as a citizen.
Under this analysis, we think that most government workers would likely have a claim for being fired for participating in anti-racism protests. You should be aware, however, of the key distinction between speech and conduct. While some conduct is considered expressive and entitled to protection, the First Amendment does not shield you from facing consequences for engaging in violent acts or behavior—even as part of a political protest—or otherwise breaking the law.
Private employees
Unfortunately, private employees are entitled to lesser protection because private employers are not typically covered by the First Amendment.
- Federal laws
We are not aware of any nationwide law that would definitively protect employees from retaliation for protesting about societal issues.
Statutes such as Title VII and the National Labor Relations Act do apply to protests and organizing surrounding certain workplace practices and conditions but would not extend to other areas such as police brutality, racial profiling, and wider social reform.
42 U.S.C. § 1981 presents a potentially promising, if perhaps largely untested, avenue to protect protesters speaking out against racial injustice. As opposed to Title VII, the statute’s substantive protections extend beyond the workplace or any other particular context to broadly cover various forms of racial discrimination. Ultimately, while a § 1981 retaliation claim is an avenue to be explored in future litigation, in our assessment, the law in this area is unsettled and we do not believe that protesters can rely on it at this time.
It is worth noting that there could be a discrimination claim if the employer discriminates between protesting workers based on a protected category or characteristic—for example if it tolerates protest activity by white employees but penalizes black employees for similar activity.
- State and local protections
Certain states and municipalities, however, have enacted additional employment protections that explicitly cover political protests or may be construed to do so. See https://legalaidatwork.org/factsheet/your-rights-as-protester-political-protests-by-employees/;
https://www.huffpost.com/entry/can-you-lose-job-protests_l_5ed90ce4c5b697d4c4442597;
https://www.workplacefairness.org/retaliation-political-activity-state-laws
- Statutes protecting political activity and/or private off-duty conduct
For example, California Labor Code § 1101 prohibits employers from forbidding or preventing employees from engaging or participating in politics and from trying to control or direct their political activities or affiliations. Section 1102 directly states: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” Similarly, California Labor Code §§ 96(k) and 98.6 protect employees from retaliation for “lawful conduct occurring during non-working hours away from the employer’s premises.” In our view, a peaceful protest would plainly qualify for these protections.
Jurisdictions such as Colorado, North Dakota, and Louisiana may have similar protections that could shield employees from being fired for engaging in lawful, peaceful protests. Other states and cities may also have comparable laws. See, e.g., Restatement of Employment Law § 7.08, Reporters Notes comment b.
But not all statutes of this type actually cover political protests. Details matter. For example, New York Labor Law § 201-d prohibits employers from retaliating against most workers for their “political activities” or “legal recreational activities” “outside of working hours, off of the employer’s premises, and without the use of the employer’s equipment or other property.” Although one might think that protests are included, these terms are defined and applied relatively narrowly. The statutory definitions and case law show that there would not likely be a claim for simple protesting and similar activity, although there could be valid arguments to be made.
- Statutes prohibiting discrimination based on political affiliation
Some jurisdictions such as Washington, DC and several counties in Maryland also protect employees from discrimination based on political affiliation, by including political affiliation among the protected categories in their anti-discrimination laws. (Additional laws may apply to certain government employees.) Whether such a law can be extended through creative lawyering to apply to protest activity will depend on applicable statutory definitions and their interpretation by courts. In DC, for example, “political affiliation” is narrowly defined as “the state of belonging to or endorsing any political party” (DC Code § 2-1401.02), understood to mean only those groups that nominate candidates in recognized public elections, and thus would not include affiliations with advocacy groups and organizations such as Black Lives Matter.
- Anti-retaliation provisions of omnibus discrimination statutes
As opposed to an employment discrimination law like Title VII, some jurisdictions such as New York City have omnibus anti-discrimination laws that cover a variety of subjects. The NYC Human Rights Law broadly prohibits employers from retaliating in any manner against any person for opposing any practice forbidden by the statute, not just an employment practice. NYC Admin. Code § 8-107(7). The question remains as to whether an employee’s protests cover a practice forbidden by the statute (and whether the practice the employee is opposing must occur in or have a nexus to New York City).
- Common law claims
Lastly, there could potentially be a common law claim (non-statutory claims created by judicial case law and the body of historical precedent). Some states allow claims for wrongful termination in violation of public policy. Others may extend the implied contractual covenant of good faith and fair dealing to the employment context. Whether such an action could cover workers fired for participating in political protests depends on the applicable case law in your jurisdiction.
Employees may have an argument that the analysis should be informed by the policies behind the First Amendment and § 1981 and by Restatement of Employment Law § 7.08. This section states that “employees have protected interests in personal autonomy outside of the employment relationship,” including expressing their “political, moral, ethical, religious, or other personal beliefs.” Nevertheless, the drafters of the Restatement recognize that the proposed basis for common law liability set forth in § 7.08 “is a departure from existing law.”
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In summary, depending on your location, there could be local state, county, or city law that would apply if you are retaliated against for participating in peaceful protests. There may be numerous angles worth pursuing but only select jurisdictions provide clear protections.
Some tips for protesters
Under federal law on Title VII, even where protests would ordinarily qualify as protected activity supporting a retaliation claim, “disruptive or unreasonable” protests do not; anti-retaliation laws do not provide a license to engage in violence, insubordination, and the like. This line of case law generally refers to conduct that disrupts the workplace, but would also extend to violent or destructive behavior in the public sphere.
Likewise, employees who engage in protected political protests may be fired for skipping work without permission or if their activities significantly disrupt their employer’s business. https://legalaidatwork.org/factsheet/your-rights-as-protester-political-protests-by-employees/ (discussing California statutes protecting employees who engage in political protests). New York Labor Law § 201-d (even if it does not protect protesting), also counsels that employees should engage in political activity “outside of working hours, off of the employer’s premises and without the use of the employer’s equipment or other property.” See also Restatement § 7.08.
Bearing this in mind, commentators suggest that protestors engage in common-sense measures such as protesting during non-work hours (or seeking permission to protest during work time),[1] informing their employers about their activities, not wearing employer uniforms or insignia, and not engaging in any conduct that they would not want to be captured on film and viewed by their employers (in the age of cellphone cameras, mass coverage, and social media). See https://www.huffpost.com/entry/can-you-lose-job-protests_l_5ed90ce4c5b697d4c4442597
It also may be a good idea to review your employer’s handbook or manual. And, if you are posting your opinions or images of your protest activity on social media, you should consider revising your profile to remove any references to your employer and/or include a disclaimer that you speak only for yourself.
On another note, take care to protect yourself during the COVID-19 crisis and ensure that you do not risk transmitting the virus in your workplace. Follow proper social distancing protocols and guidelines and do not return to work if you are sick or have been exposed to the virus.
If you do face termination for protesting, you may wish to contact an employment lawyer who may be able to examine your situation and advise you on your rights and steer you in the right direction. Civil rights organizations may also be a valuable resource.
Finally, even if there is no law that would protect political protesting in your area, there could be alternative solutions you can pursue such as a media, public relations, organizing, or lobbying strategy. Many employers would not want to terminate employees for exercising their First Amendment rights. And, if workers are fired or otherwise retaliated against for workplace-related organizing and advocacy for the rights of employees who engage in outside protests, laws such as the National Labor Relations Act may then be implicated. See https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/concerted-activity
Stay safe, stay strong, and be smart!
Footnote
[1] If you take time off to attend a protest, make sure that you are doing so in accordance with your employer’s policies. For example, do not use sick leave that may only be used for medical reasons.