Following the violent ending of the clash of the extreme right and extreme left in Charlottesville, Va., it was reported that several of the “Alt Right” protesters whose pictures showed up in the news were fired from their jobs.
Can an employer do that? Yes, as long as the workplace is not located in one of those states that says you can’t.
“Generally speaking, in the at-will context, a private employer who finds out that an employee attended a rally outside of working hours can subsequently fire that employee,” says Demetri Economou, an attorney with the law firm of Kane Russell Coleman Logan “That is exactly what some Virginia employers have done after the events in Charlottesville.”
Although the First Amendment undoubtedly protects an individual’s right to attend a lawful protest, it affords no protection from the employment consequences of doing so, he stresses. In addition, political speech is not covered by federal employment laws. Some state laws don’t refer directly to political activity, but restrict how an employer can react to their workers’ activities when they are off the clock.
California authorizes administrative claims for “loss of wages as a result of demotion, suspension, or discharge from employment for lawful conduct during nonworking hours away from the employer’s premises.”
In Colorado, an employer discriminates if it terminates employment for “employees engaging in any lawful activity off the premises of the employer during nonworking hours,” with some exceptions which generally do not include off-the-clock lawful protest.
Louisiana prohibits employer policies or rules that forbid or prevent employees from engaging or participating in politics. Also banned is attempting to coerce or influence employees “by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character.”
In New York discrimination is prohibited for “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes.” This section seems to apply to recreational activities like sports and hobbies, and it is untested as to whether it also covers political protest, Economou notes.
Local governments can institute similar rules, under the idea that they can choose to afford greater protections to their citizens than does the federal government. “Employers in jurisdictions offering employees protections for lawful activities and/or political affiliation and political activities should definitely take note,” Economou urges.
Attorney Zoe Argento of the law firm of Littler Mendelson also warns employers to be careful in making sure that adverse employment actions don’t violate federal labor legal protections protecting activities that involve expression regarding wages and working conditions.
If the employee participated in a rally concerning sick leave, minimum wage or immigration reform, for example, that conduct would likely be protected, Argento points out. Similarly, workplace rules or policies that dissuade non-supervisory employees from exercising their rights to advance their "mutual aid or protection" can violate federal labor law and get you in trouble with the National Labor Relations Board.
Not all protests include the waving of swastika or hammer-and-sickle flags. In other cases, you also should take into account additional factors before firing an employee, Argento recommends.
“As a practical matter, your decision to terminate or discipline an employee should be based on an objective assessment of both the individual's job performance and your business needs,” she says. “If the employee is otherwise a solid performer, and if his behavior does not interfere with the operation of your business, an adverse employment decision may be difficult to explain, undermine morale in your workforce and, on balance, have more negative than positive results.”