Employee Protesting Rights in California

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Employee Protesting Rights in California – Top Rated Employment Lawyers

Protests have swept California upon the killing of Mr. George Floyd during an arrest by a Minneapolis police officer. Millions of Californians have made their screams of the surprisingly-controversial statement—Black Lives Matter—heard peacefully across the state, while business both large and small have been ransacked amid escalating tension.

Thousands of Californians that marched the streets despite mandatory curfews have been arrested and undoubtedly risk losing jobs, getting disciplined, or even fired for their political activism. Disturbed citizens may be concerned with getting fired for participating in a protest, which leads everyday workers to wonder what are employee protesting rights in California?

Can you be fired for protesting in California?

It depends. A California employer cannot retaliate against an employee for engaging in protected activities. Political activities like advocacy for the rights of a marginalized group of people are considered protected activities in California, but merely being engaged in activism is not always enough to save one’s job.

California Labor Code Section 1102 disallows employers from firing or threatening to fire employees for participating in any particular course of political action. California Labor Code Sections 96(k) and 98.6 more generally protect employees from being demoted or discharged for “lawful conduct” that occurs on the employee’s own time and away from the employer’s premises. “Lawful conduct” includes engaging in a peaceful protest. So, if an employer fires or threatens to fire an employee for joining a peaceful protest for a legitimate cause during non-working hours, the employee is entitled to sue.

In California it is a fundamental right of all citizens—including employees—to make their voices heard through political protests. California employees cannot be fired or disciplined for attending one, or for having a particular viewpoint, as long as they express their views on their own time and away from their employer’s place of business. However, if an employee fails to show up to work without permission, even to peacefully protest a noble cause, they can be fired. If an employee causes their employer damage, or their political activities otherwise significantly disrupt their employer’s business, they can be fired. Further, if the employee violates an express company policy, like presenting the employee’s opinions as the company’s where it is expressly prohibited in the employee handbook, the employee can still be fired.

For example, it is unlawful for an employer to fire an employee merely for participating in a peaceful march as part of the Black Lives Matter movement. But if the employee misses an expected shift without permission to attend the march, or if the employee commits acts of vandalism, the employer can likely take action against the employee.

Can I be fired for getting arrested during a protest?

If an employee citizen gets arrested during a protest, an employer might want to take action against an employee while the arrest is awaiting trial.

California Labor Code Section 432.7 prohibits employers from using the record of an arrest which did not result in a conviction as a determining factor in any employment decision against an employee. However, if an employee’s arrest is still pending trial, nothing prevents the employer from asking about the arrest and how it may affect the business, so employees arrested during protests should expect to have to explain the story. Still, an employer cannot fire an employee based on a mere arrest if the arrest was resolved in the employee’s favor, or if the arrest is pending trial and does not reasonably impact the employer’s business.

Employee Protesting Rights in California – Contact the Los Angeles employment lawyers at Miracle Mile Law Group

We suggest employees get permission from their employer before missing work for a protest, stay away from the employer’s premises, avoid appearing to represent their employer, and avoid non-peaceful protests. However, if you feel that your rights have been violated in the workplace, our lawyers are standing by at (888) 244-0706 or fill out the form for a free consultation.