If you’re among the demonstrators protesting police brutality across the nation following the recent police killings of George Floyd and Breonna Taylor, you may need to consider whether participating can cost you your job.
The First Amendment of the U.S. Constitution gives people the right to peacefully assemble and protest with their fellow citizens. But if you work for someone else, the extent of this legal protection depends on when and how you protest.
“In short, it depends on who you work for and where you live,” said Aaron Holt, a Houston-based labor and employment attorney at the law firm Cozen O’Connor.
Do you have a public or private employer?
If you work for a public employer, you work for the government, and you have a right to political speech if it’s a matter of political, social or other concern to the community, Holt said.
Holt cited Connick v. Myers, a U.S. Supreme Court case that established a balancing test for public employees based on whether an employee’s speech was a personal grievance or a matter of public importance.
“If it’s a matter of public importance, then the employee’s right to make that speech, to protest, to voice their opinion outweighs the employer’s interest, which is the government, in maintaining an effective workplace,” Holt said.
At-will employers can fire you without needing much justification.
If you have a private employer, you are generally going to be an at-will employee, which means you can be terminated for any reason as long as your termination is not in violation of other federal, labor and discrimination laws.
“Every state in the nation but Montana is at-will, so unless you have a contract or union collective bargaining agreement saying otherwise, you can be fired for any reason or no reason at all, including attending protests,” said Donna Ballman, a Florida-based employment attorney and author of “Stand Up for Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed, Or Sue the Bastards.”
That being said, an employee cannot be fired in retaliation for a legally protected action, and in several states like Colorado, New York and North Dakota, employees are protected from getting fired for lawful activity off the employer’s premises during non-working hours.
California, Colorado, New York, North Dakota and Louisiana also have specific protections for political participation in employees’ off-hours. In these states, “it’s illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. So protests are probably covered,” Ballman said.
“If you’re in an organization that hasn’t supported the protests publicly, distributed informative resources about the protests, and/or made financial contributions, the company’s silence speaks volumes.”
If certain demographics of employees are being singled out for disciplinary action, being fired for protesting that Black lives matter could also be discriminatory, Ballman said.
“If Black employees are fired for protesting in Black Lives Matter protests, there is also an argument about race discrimination,” Ballman said. “Discrimination laws still apply to protests, so an employer can’t fire only employees of a certain race, sex, national origin, etc. for participating in protests.”
There are ways to minimize the risk of jeopardizing your employment.
One practical tip is to protest outside of your working hours. The laws protecting political actions like protesting are centered around what you do off the clock, so your employer is within its rights to fire you if you’ve been protesting while you agreed to be working.
“If you’re on the clock working for the employer, the employer has every right to expect you to be doing the job for which you are being paid,” Holt said.
Because protests are being televised and shared on social media, keep in mind that you may end up on camera. Having an up-front talk with your boss about your participation could be helpful, said Kyra Leigh Sutton, a human resources expert and professor in the Rutgers School of Management and Labor Relations. “The conversation is not asking for permission,” Sutton said. “Instead, it’s an opportunity to share your interests/values with your managers and give them a heads–up about your participation.”
If you don’t trust your manager to be supportive, talk to someone else you trust within the organization, so you can at least get clearer insight into how the company feels about employees protesting. You can ask that confidante, “From the perspective of our organization, are there any legal ramifications if I participate in the protests during my personal time?” Sutton advised.
Then consider what you wear to the protest, because your off-duty conduct can still implicate you at work. Sutton suggested staying away from wearing the company logo while protesting to show you don’t represent the company in your actions.
If a company’s values around protests are different than yours, pay attention to that signal.
If you do find out that protesting against police brutality is against company policy and you disagree, that could be a signal to look for a job that’s a better fit.
“If you’re in an organization that hasn’t supported the protests publicly, distributed informative resources about the protests, and/or made financial contributions, the company’s silence speaks volumes,” said Kyra Leigh Sutton, an HR expert in the Rutgers School of Management and Labor Relations. “I recommend leaving an organization if their values don’t align with yours.”
Of course, we’re in the middle of a pandemic, thanks to which over 40 million Americans have lost their jobs since March, so quitting without a job lined up is not practical.
Sutton said that if leaving is not an option right now, you can still plan for it, and “in the interim, do your best work. Remember, even if the organization isn’t a good fit, consider how the experience can prepare you for your next job.”