Demonstrators hold placards during a protest Sunday, May 31, 2020, in Denver outside the State Capitol over the death of George Floyd who died after being restrained by Minneapolis police officers on May 25. (AP Photo/David Zalubowski)
Q: I care about today’s issues of social justice — from racial inequality to voting rights suppression to fighting for decent wages. I want to participate in peaceful demonstrations, but wanted to know its effect on my job. Can I be terminated from work if I join any of these marches or protests?
A: The general answer to your question is no, your employer cannot legally terminate an employee simply for participating in political activities outside of work.
An employer is prohibited under California’s Labor Code from engaging in any adverse action towards an employee, such as demotion or termination, if the employee engaged in “lawful conduct” during non-working hours and away from the workplace.
In addition, employers cannot control or direct the political activities or affiliations of its employees. Hence, employers cannot enforce a rule or policy that forbids employees from participating in political acts. Nor can employers force or influence employees to follow any particular course or line of political action by threatening employees of termination.
Therefore, an employer is generally prohibited from discharging, or threatening to discharge, an employee for attending rallies or protests against actions by government agencies. Political activity may also include “the wearing of symbols, association with others for the advancement of beliefs and ideas, and espousal of candidates or causes.”
However, the employer may have a right to discipline or fire an employee if they missed work without permission while engaged in some political activity outside work. The employer may also discipline or terminate an employee if their political activities cause significant disruption to the employer’s business.
What if, in the course of attending a rally or protest, the employee was arrested? Can the employer then discipline or fire the employee because of the arrest? If the arrest disrupts the employer’s business, then the employer may act adversely toward the employee by suspending or demoting or even terminating an employee pending a trial. However, the employer cannot use the arrest, without a conviction, as the only factor in the employer’s decision to discipline the employee. If the arrest is resolved without a conviction, then the arrest alone cannot be used to demote, or terminate the employee.
At the heart of the First Amendment of the United States Constitution is the right to join with fellow citizens in protest or peaceful assembly to petition the government for a redress of grievances. This is critical to a functioning democracy. It is even more critical to ending systemic injustice and advancing social changes that uphold human rights and dignity.
If employees make the patriotic choice to peacefully stand up and defend the right to life, liberty, and the pursuit of happiness – they can take comfort in the fact that California has employment laws that protect them.
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]
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