For protest-minded workers, employment law and free speech are not clearly on your side

The First Amendment does not workers who protest if their boss decides to fire them. Knowing speech law in an era of protest is important job training.

For protest-minded workers, employment law and free speech are not clearly on your side

Attention workers: what you say or do — even outside of normal working hours — could get you fired.

This is especially pertinent for workers now, given the wave of protests and charged social media posts related to Middle East tensions, the presidential election and other hot-button social issues. Workers may think they have more protections than they do, which can lead them to say or do things that get them fired.

"It's not considered illegal for an employer to say, 'You're representing us; we think that behavior reflects badly on us and so you're fired,'" said Nicole Page, partner at Reavis Page Jump, whose firm represents employees and employers in employment matters.

That's not to say there won't be legal wrangling over the firing, such as the case with Google, which recently terminated 28 employees in April after a series of protests against labor conditions and the company's contract to provide the Israeli government and military with cloud computing and artificial intelligence services. This occurred a day after nine Google workers were arrested on trespassing charges after staging a sit-in at the company's offices in New York and Sunnyvale, California, including a protest in Google Cloud CEO Thomas Kurian's office. The fired employees have since filed a complaint with the National Labor Relations Board.

Employment attorneys say the outcomes of these types of cases turn heavily on the specific facts and circumstances. And there isn't always a quick resolution, which makes it even more important for workers who want to protest political or social issues to know what they could be getting themselves into — before they act in a way that could have long-term repercussions.

Here's where to start in understanding employee rights versus the rights of a company to discipline workers up to and including dismissal:

Remember: The First Amendment does not apply to private-sector workers

Many people participating in protests, sit-ins, or making charged statements on social media may think the First Amendment offers them a blanket of protection, but the U.S. Constitution places restrictions on the government, not private-sector employers. 

Workers who think they have impunity when it comes to free speech and employment law are wrong. In fact, bosses may legitimately have grounds to terminate their employment.

Broadly speaking, the federal government is not allowed to limit your ability to speak, but the same is not true for private employers, Page said. However, there are certain state laws that protect an employee's right to speak, and there are certain protections for union members, who have some built-in protections under the National Labor Relations Act. That includes the ability to talk to coworkers about joining a union, pass out literature about joining a union (in non-work areas during non-work times), sign up co-workers on petitions in non-work areas and during non-work times, join with co-workers for the purpose of improving on-the-job working conditions.

Workers also have the right to speak out about an employer's unlawful conduct that harms them or other workers, such as discrimination, harassment, wage violations, and opposition to union efforts to improve conditions, said Jahan Sagafi, partner-in-charge of Outten & Golden's San Francisco office, where he represents workers in employment class actions.  

Know how 'pro-worker' your state is

Many states have agencies equivalent to the federal Equal Employment Opportunity Commission and Department of Labor to protect workers from discrimination and other workplace harm. You may be able to find them by searching your state's name plus "fair employment practices agency" or "department of labor."

Some states known to be more pro-worker, including on speech issues, include California, New York and Illinois, Sagafi said. 

In California, for example, there are protections for workers' expression of political ideas, which has been interpreted broadly, especially when an employee can show, for instance, that an employer has a pattern of discrimination when it comes to that employee. In many cases, courts have allowed lawsuits to proceed past summary judgment because there are significant enough questions of fact to allow it to move forward.

Make 'common sense' protest choices to protect yourself

Discipline and termination are always risks. But there are things you can do to protect yourself. 

First: Use common sense and don't be disruptive at work, Sagafi said. Don't plan a protest for societal change on company grounds or on company time, or using company resources. "In general, the company has the right to maintain an orderly, inclusive, productive environment for everyone," Sagafi said.  

Second, limit the degree to which your actions can be attributed to the company. "You don't want to make it look like you're speaking on behalf of the company, because the company may be concerned that its image or brand is being tarnished," Sagafi said.

"If you work for a company whose biggest clients include oil industry titans and you chain yourself to a tree because you're protesting oil drilling, you can get fired for that," Page said.

Simply going to a protest might not rise to the level of firing, but if you're posting publicly, or there's a photo of you holding up a sign or throwing something or even just putting something on social media like "I hate oil," it could be reasonable grounds for a company to fire you, she added.

It can be difficult for an employee to know every client of their firm, let alone rank them in order of importance, but again, common sense applies. If you know your company is heavily involved or invested in a particular industry, and you thumb your nose at that in a very public way, legal experts say you could be fired.

In the end, employers have a much better case for a reasonable business justification for termination if a worker breaks the law, acts violently, incites violence, or states blatantly hateful, violent or discriminatory things, said Devin McRae, partner at Early Sullivan Wright Gizer & McRae. Also, don't skip work without permission and don't lie to your employer by taking a sick day, for example, and then attend a public protest. If you show up on the evening news, "conceivably your employer could fire you for lying to them," McRae said.

Social media will get you in trouble

Especially with social media, people have a false sense of security sitting behind a computer and posting what they want. But companies can fire you for what you post, as long as they are not doing it in a discriminatory way. "There can be consequences in the real world," Page said.

She offered the example of NYU Langone, which recently fired two doctors — one for expressing pro-Palestinian views and the other for posting pro-Israel views. One of the doctors has sued, claiming discrimination and the case is ongoing.

It's good to start by thinking twice before you post anything political — especially if you are feeling emotional — and become familiar with your employers' policies on social media posts. Some companies prohibit employees from posting political views on social media, for instance. Going against the policy may be grounds for immediate termination.

Taking an employer to court after being fired is a wildcard

Of course, a worker fired for protesting or expressing views on social media may decide to sue the company for wrongful termination, but that requires time and money. These cases are highly fact-specific, and there's no telling how a jury would decide, if a case even goes that far. 

An employee might have a good case, for example, if they can point to multiple examples where another employee wasn't fired for violating the same policy. There is often legal wrangling over what the company's motivations were in firing the employee, McRae said.