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Can I lose my job if I participate in a protest?

Updated: Mar 20, 2022

Employers can consider firing you to maintain the company's political stand and public image under social pressure.

Only a few states prevent employers from firing you for "lawful activity" outside of the workplace. Generally, this is a risk to consider.

While the First Amendment undoubtedly protects an individual's right to attend a lawful protest, it affords no protection from the employment consequences of attending the protest. The First Amendment protects individuals only from government attempts to regulate speech. As a result, private employees lack the protections employees of public employers (generally, government entities) maintain when employers are faced with employee speech they find objectionable. Note also that political speech is generally not covered by Title VII and other federal employment laws, although some argument could be made that certain speech may be tied to the individual's sex, race, religion, or other protected class.

Generally speaking, in the at-will context, a private employer who finds out that an employee attended a rally outside of working hours can subsequently fire that employee. However, several states have their own statutes protecting employees from employer action related to their off-the-clock lawful activities, which would ostensibly include lawful political protest. At the protective end of the spectrum, five states (California, Colorado, Montana, New York, and North Dakota) prohibit employers from punishing employees for legal off-duty activities that do not conflict with the employer's business-related interests. Nine additional states more narrowly protect employees who engage in political activities and five states similarly protect individuals who sign initiative, referendum, recall, or candidate petitions.

Because these limited protections for off-duty political speech are not available to approximately half of the U.S. population that works in the remaining 31 states, we recommend you understand the employment-related risks tied to the protest you are planning to attend.

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