In the wake of the Charlottesville tragedy, several Twitter crowdsources have undertaken to “out” attendees of the “Unite the Right” rally to their employers and the community at large. Some employers have subsequently fired those employees attending the rally. Without any political polemics, let’s discuss whether this is permitted.

The Right to Assemble Affords No Protection from Employer Action

The First Amendment of the U.S. Constitution protects free speech and “the right of the people peaceably to assemble,” among other rights. State constitutions offer mostly the same protections with different wording.

While the First Amendment undoubtedly protects an individual’s right to attend a lawful protest, it affords no protection from the employment consequences of attending the protest. Note also that political speech is generally not covered by Title VII and other federal employment laws, although some argument could be made that certain speech may be tied to the individual’s sex, race, religion or other protected class.

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. That is exactly what some Virginia employers have done after the events in Charlottesville.

But Several States Prevent Firing for an Employee’s “Lawful Activity”

However, several states have their own statutes protecting employees from employer action related to their off-the-clock lawful activities, which would ostensibly include lawful political protest. States, of course, can offer greater protections than those offered under federal law.

Virginia is not one of those states; neither is Texas. Discussed below are the four most populous states with statutory lawful activities protection. As these protests and counter-protests continue to take place following Charlottesville, employers should take note.

  • California (Ca. Lab. Code § 96(k)) – 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”;
  • Colorado (Colo. Rev. Stat. § 24-34-402.5)) – employer discriminates if it terminates employment for “employee’s engaging in any lawful activity off the premises of the employer during nonworking hours,” with some exceptions which would generally not include off-the-clock lawful protest; and
  • Louisiana (La. RS 23:961)) – prohibits employment policies or rules “forbidding or preventing any of [its] employees from engaging or participating in politics” or “attempt to coerce or influence any of [its] 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.”
  • New York (N.Y. Lab. Code § 201-d)) – discrimination for “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes.” While this section implies true recreation like sports and hobbies, it is untested as far as we have reviewed as to inclusion of political protest.

Local governments can institute similar rules, again, under the idea that they may afford greater protections to their citizens than the federal government.

Employers in jurisdictions offering employees protections for lawful activities and/or political affiliation and political activities should definitely take note.