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Employees Who Engage in Political Protest: What Employers Need To Know

Jan 15

All of 2020 and so far, the start of 2021, has proven to be politically tumultuous. While as Americans, there is a constitutional right to exercise free speech–including in exercising political rights. But, with inauguration day looming, and the possibility of more protests a real threat, some employees may be wondering if their right to protest will impact their employment. The answer is that it depends.

Employment Considerations and Political Protests

The rights of an employee depend on the at-will status of the state. New York is an at-will employment state meaning that the employer can terminate an employee at any time, for any reason–unless it is discriminatory.

In this case, the “reason” for any, adverse or otherwise, employment action would be the engagement in political protest. But the real question becomes–was the employee’s personal conduct illegal?

If the employee were to engage in something illegal–like trespassing on Federal property– they could lose their job. But what if the act wasn’t illegal? This is where New York employers need to consider the state and local laws that provide protection for political speech.

Laws Protecting Political Speech

The first consideration is that of the First Amendment. While as we’ve said constitutional rights do not pertain to private-sector employers, there are state free speech laws.

Under New York State Constitution, “Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

There are also federal laws. The National Labor Relations Act (NLRA) can implicate an employee’s political speech if it pertains to work-related conditions. The NLRA protects union and non-union employees who engage in “concerted activities”.

The Act doesn’t limit an employer’s ability to regulate political speech, but if it pertains to working conditions, there may be action taken. Unfortunately, with no clear set of guidelines, employers and employees alike must proceed with caution when engaging in and addressing political conduct.

Political speech and engagement are likely to continue to be a cause for problems in the months to come. But New York employees need to exercise caution as they engage in political action and protest.

If you are caught in the crosshairs of a politically motivated adverse employment action, seek legal advice from the New York employee advocates at Brown Kwon & Lam.

Political Engagement and Employee Rights: Brown Kwon & Lam

We understand the desire to speak up and out against injustices. But when you face retaliation or wrongful termination because of it, your rights have been violated and you need legal support.

The New York employee rights attorneys of Brown Kwon & Lam are here for you. Contact us today for a consultation of your case.

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