Over the past week, millions of protesters across the country spoke out against racial injustice, police brutality and the death of George Floyd.
Organizations including the ACLU and the Legal Aid Society have emphasized the importance of protesters knowing their legal rights.
Another concern that protesters face is if their actions will impact their livelihoods and some wonder, “Can I be fired for protesting?”
While it’s unclear whether any protesters have been fired, a common misconception is that the First Amendment protects protesters’ jobs, says Jonathan Bell, a New York-based labor attorney.
“A lot of people say, ‘Well, what about the First Amendment? Doesn’t it protect our right to protest?’ The answer is yes. The First Amendment does protect an individual’s right to protest, but it doesn’t afford any protection for employment,” he says. “Freedom of speech does not mean that your employer can’t terminate you for any reason, especially if you’re an employee at will.”
CNBC Make It talked with protesters in New York and Washington, including several who spoke on condition of anonymity, saying they feared their participation in demonstrations could lead to negative consequences in their careers.
“Yesterday, I lied to my boss to go to a protest. It didn’t occur to me to tell them what I was doing,” a black woman who works for a start-up in New York City told Make It. “I have a white friend who emailed her boss explaining she was going to a protest and got approved for time off. I’m worried about the message it would send about me being ‘radical’ if I asked, whereas I feel like my white friend was able to ask because it signals to her boss that she’s a ‘good person.'”
One 22-year-old protester based in Washington, who works as an account management associate, said he was explicitly told protesting could “result in termination,” but ultimately he felt standing up for what he believed in was most important.
A 30-year-old New York-based protester who works for a nonprofit and uses they/them pronouns also worried that protesting could result in getting fired but feels strongly it’s the right thing to do.
“There are many reasons I’m still out protesting. The violence has been so intense and deserves witness and response, and I feel such grief for my fallen trans siblings,” they said, referencing Tony McDade, a black trans man who was shot and killed by a police officer in Tallahassee, Florida, last week. Police said that while investigating a fatal stabbing, McDade was in the area, matched the description of the suspect and was shot after pointing a gun at an officer.
“There are so many young kids out there!” the 30-year-old Brooklyn protester said. “The cops are going after them with greater force. They want to intimidate us to staying home.”
“And ultimately, I’ll be fine if they fire me. How many millions of people are without work right now?”
Others said they’ve felt supported by their employers. In one instance, a 29-year-old New York protester who works as a director of brand communications said her manager let her skip a meeting in order to go to a demonstration.
“My boss asked if I wanted to join a call, and I knew I had the space to tell her I can’t because I was going to a protest. Her response was, ‘That is more important,'” said the protester. “Our black friends and family need us more than ever. They are exhausted, we need to show up for them in every way possible.”
Human resources and legal experts tell CNBC Make It there are several factors to consider when determining if a person can be fired for attending a protest. Here are a few of them:
Are you an at-will employee?
“At-will” employees are not protected by a contract or a bargaining agreement, so they can be fired without cause.
According to the National Conference of State Legislators, “The U.S. is one of a handful of countries where employment is predominantly at-will. Most countries around the world allow employers to dismiss employees only for cause.”
“If you’re an employee at will, you can be fired for any reason at all,” says Bell. “You can be fired because someone doesn’t like the color of your shoes, as long as it’s not discrimination based on race, age, religion, gender, disability or a protected class.”
He says the vast majority of working Americans are at-will employees. Doctors with contracts with specific hospitals are among the minority of workers who are not considered at-will. If you are not an at-will employee, you should thoroughly read your contract, he says.
What are the labor laws in your state?
Another variable is where your live.
“It really depends upon what state you’re in,” says Bell. “For example, states that do have laws or provisions regulating termination are states like California, Colorado and New York, where basically the law is that if you’re engaging in a lawful activity during nonwork hours, then employers can’t terminate you.”
Amber Clayton, director of the Society for Human Resource Management’s Knowledge Center, says such protections are often referred to as “off-duty conduct laws” or “lifestyle discrimination laws.”
“Those are the kinds of laws that actually would protect employees from being terminated for peaceful protesting, for example,” she explains.
Here is SHRM’s guide to how these protections vary from state to state.
What if you get arrested?
Even in states like New York that have such laws, workers need to “look out for minor violations,” says Bell, noting that while protesting is a legal activity, workers are sometimes fired if they have been arrested for unlawful activity.
“If protesters are arrested for what is deemed ‘unlawful activity,’ then employers may be able to take action,” says Clayton. “But it’s important to remember that states have varying laws with regards to arrest and conviction records and also to keep in mind that arrests don’t necessarily mean that someone is convicted.”
Here is a resource that protesters can reference that compiles state employment laws on use of arrests and convictions.
There are no federal protections
Ultimately, there is no federal legislation that protects protesters from being fired.
Without federal protections, Clayton says workers also need to pay close attention to employers’ policies to make sure they have all of the information they need.
“For example, some employers may have policies where employees can’t wear uniforms out in public and show that they’re representative of the organization while they’re doing any kind of off-duty work,” she says.