When Employees Become Activists

​In recent months, a surge in activism has seen thousands standing up for causes such as Black Lives Matter or protesting COVID-19 government shutdowns. Are employees who participate risking their jobs each time they take to the streets or post politically charged comments on social media?

The answer varies depending on what they do and where they work. For example, it may not pose a problem for employees to protest off-hours. But employees who skip work to protest do risk termination. Many private employers have the right to fire employees "at will," but employment lawyers caution companies to tread carefully when disciplining employees for political activism outside of the office.

States including California, Colorado, Louisiana and New York protect an employee's right to engage in political activity. But most states do not have such protections.

What employees say in the workplace and at protests could be a problem, as well.  "For private companies, you do not have a First Amendment right to free speech in your place of employment," said Aaron Holt, an employment lawyer with Cozen O'Connor in Houston. "So employers have wide latitude to limit speech that might be offensive to others or affect the company's reputation or value." (See "What Employee Speech Is Protected in the Workplace?" for more information.)

In general, he said, most employers don't discipline employees for marching in peaceful protests outside of work hours. The exception is when it goes against the company's values. If someone is caught making racist remarks or otherwise violating the company's discrimination or conduct policies, the employer is within their rights to fire or discipline the employee for their off-duty conduct. Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of race, color, religion, sex or national origin. If the company has notice of discriminatory off-duty conduct of its employees and fails to address it, and another incident occurs in the future, the company could be held liable for tolerating a hostile work environment, he said. 

[SHRM members-only resource: Discipline for Off-Duty Conduct]

Betsy Carroll, an employment lawyer at Davis Wright Tremaine in Los Angeles, said in most states, employers can fire someone at will but not for an illegal reason. "Is there any way that taking action against someone for political reasons could be a proxy for something else—a protected class like race or national origin? You have to be mindful that someone is not perceiving that they are singled out," which could open the door to a discrimination suit.

The key is consistency. "If an employer doesn't have a problem with someone taking off work to go to a protest about the pandemic shutdown, but they do have a problem with someone going to a Black Lives Matter protest, that's a problem," Holt said. "Employers can't pick and choose who they want their policies to apply to."

Added Peter Shapiro, an employment lawyer at Lewis Brisbois Bisgaard & Smith in New York City, "If you only discipline the minority and you don't discipline the majority, you have a pretty good lawsuit on your hands. But it has to show adverse actions, such as being demoted, fired or suspended."  

The more egregious the behavior, the better the case for the employer to step in, lawyers said. If an employer can prove a pattern of behavior, rather than just one offensive tweet, it will have a stronger case for taking disciplinary action.

But there are limits to how much employers can ask about political activity—especially in states with protections. "In California, employers may not ask about arrests that do not lead to conviction, and so if someone gets arrested at a protest, most of the time, you wouldn't be able to ask about it," Carroll said. But discipline may be allowable if the individual was caught on camera being violent. (See "What to Do If an Employee Is Arrested During a Protest" for more information.)

Employees also have to make sure that their political activity doesn't interfere with job performance. If they skip work to march, they could be disciplined for absenteeism or failing to do their jobs, lawyers said. "You have to do it on your own time," Shapiro said.  

Aside from the legalities of disciplining an activist employee, companies also have to consider the public relations of shutting down an employee's political expression. Terminating an employee for his or her political position could result in an unhappy workforce and could lead to backlash in the community. 

While employees at private companies don't have many legal safeguards on free speech, those who work for public companies are protected by the First Amendment if the speech relates to a "matter of public concern." But even that right is not unfettered, Holt said. "There's a balance between the employers' right to maintain a disruption-free and productive workplace and the employees' rights to speak on matters of political, social or other concern to the community."

Cristina Rouvalis is a freelance writer based in Pittsburgh.