Jul 10, 2020 • Ashley Ravid; FINDLAW/BLOGS/LAW AND DAILY LIFE
Can You Be Fired For Protesting?
Amid the many protests occurring across the United States, one common question people are asking is if they can be fired for attending a protest. While the First Amendment of the U.S. Constitution does protect protesters from governmental retaliation, in many states private employers have the right to terminate your employment at-will, depending on the circumstances.
Right to Protest Explained
The First Amendment states that “Congress shall make no law… [abridging] the right of the people to peaceably assemble.” While some people may mistake this to mean that it is unconstitutional to raise any opposition to peaceful protest, the First Amendment simply means that the government cannot ban peaceful demonstrations. It does not guarantee that you will not face consequences for protesting imposed by others besides the government.
If you are a non-governmental employee, the First Amendment does not protect you from losing your job because of your political actions or online posts. Unless there is a protesting-specific clause in your employment contract, odds are that your employer has the right to fire you if they disagree with your protesting.
Most employees are designated “at-will,” which means in most cases employers can fire employees for nearly any reason that is not considered illegally discriminatory. Wrongful termination occurs when an employee is fired in violation of the terms of their contract or state and federal employment anti-discrimination laws, such as the 14th Amendment.
All states, except Montana, have laws that protects employers’ rights to terminate at-will employees. However, many have also enacted laws that grant protection to employees in certain circumstances.
California law, for example, prohibits employers from attempting to stop or influence employees “from adopting or following any particular course or line of political action or political activity.”
New York labor law contains similar protections for employees taking part in political action or protests. If you are in a state with these types of protections, this means that your at-will employment likely cannot be terminated solely because you partake in lawful political activity.
Knowing Your Rights
However, this does not mean that you are entirely safe from any disciplinary action or loss of employment because of related actions. You could lose your job for breaking the law while protesting, including by blocking roads or committing vandalism.
This may apply to online speech as well, so be certain that you are aware of your employer’s policies. Employees are often seen as representatives of a business and are sometimes fired for expressing values that differ from those of their employer or engaging in behavior at protests that the employer disagrees with. If you are unsure whether you live in a state that grants protest protections to at-will employees, you can check local labor codes and state laws to better understand your employment situation.