Employee Absences to Attend Protests Might Be Protected Activity

By Robyn M. McKibbin, Esq.

This article was originally written for Stone | Dean’s At Issue Newsletter. You can find the original & full edition of At Issue Summer 2017 here.

Edit, 8/18: With protests flaring up and turning violent around the Nation (notably in Charlottesville, VA), many have taken to the internet in search of answers, and even retribution. Employers across the country face a very difficult dilemma posed by this article: If your employee participates in a political activity (outside of work) that you don’t agree with, can you fire them? It’s happened already, and it will happen again; whether or not it’s a protected activity, however, depends on the activity and the state where you do business. Find out more below.

Nationwide demonstrations have been, and most likely will continue to be, organized to voice different points of view. Employers have legitimate concerns how these rallies, especially walkouts, will impact their business operations and whether employees can be disciplined for violating attendance policies or disrupting production. Caution should be exercised before any disciplinary action is taken as the employee’s conduct may be protected by federal or state laws. This article addresses organized activity during work hours, not any lawful off-duty conduct.

The First Amendment to the United States Constitution protects various things including the freedom of speech and assembly. But it is aimed at protecting individuals from government interference, not activity in a private workplace.

The Federal National Labor Relations Act (NLRA) protects the rights of employees to engage in “protected concerted activity,” which is generally defined as two or more employees taking action relating to the terms of conditions of employment for their mutual aid and protection. The right applies to both union and nonunion employees.

Not all political activity warrants protection; it must be sufficiently employment-related. Purely political conduct that does not involve employee rights does not constitute protected activity. When employees get together to protest working conditions or job issues like low wages or safety concerns, the activity is most likely protected. If an employee takes time off to participate in a general rally to voice their displeasure with the current administration, it is less likely that they are trying to improve their working conditions, thus, it is probably not a protected activity.

California law protects private employers from controlling or retaliating against employees for political activities outside of work: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office; (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Lab. Code § 1101. Labor Code § 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”

The definition of “political activities” under California law is broader than partisan or electoral activities. It covers any activity involving the “espousal of a candidate or cause,” including participating in broad social movements such as supporting gay rights.

Public sector employees have the right to engage in political activities outside of the workplace, as well. Govt. Code § 3201, et seq.

California also has strong protections for immigrant workers who complain about unfair wages or working conditions. Lab. Code § 1019. Further, it is unlawful for a person to report or threaten to report the suspected citizenship or immigration status of an employee, former employee, prospective employee or a member of the employee’s family because that person exercised a right under the Labor Code, Government Code, or Civil Code. This includes wage and hour issues and national origin harassment and discrimination complaints. Lab. Code § 244. An employer’s business license may be suspended or revoked for reporting or threatening to report the same. Bus. & Prof. Code § 494.6. Moreover, a person may be guilty of criminal extortion. Pen. Code § 519.

The “Day Without Immigrants” march did not specifically connect any employment issue to the rally so it most likely would not be protected by the NLRA. But it most likely would be protected activity under California law.

The January 2017 Women’s March in Los Angeles did not articulate a specific message. Some opined “women’s voices should be heard”; some carried signs reading, “Not My President;” others voiced support for pro-choice rights. Without a clear statement of purpose, similar marches most likely will not be protected conduct under federal or state law.

Because any of these laws may come into play with employee protests or rallies, employers should:

• Ensure their leave of absence policy is lawful and applied consistently and fairly.
• Treat an employee’s request to take time from work to participate in a protest the same as requests to take time off for vacation or other personal reasons.
• Not threaten disciplinary action, or take disciplinary action for “political” rallies without the advice of counsel.
• Train managers and supervisors to be mindful of the broad range of characteristics and conduct that may be protected under federal or state law.

The Employment Law experts at Stone | Dean are committed to helping businesses meet challenges posed by ever-expanding federal and state regulations governing the workplace. Business-owners and corporations looking to comply with new changes and implement litigation-avoidance strategies should visit StoneDeanLaw.com/ practice-areas/employment-law