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What your employer can and can't do if you join a protest

Posted at 11:14 AM, Jun 25, 2020
and last updated 2020-06-25 16:03:02-04

WASHINGTON, D.C. -- For weeks now, protests have touched every part of America, drawing people out of their homes and into the national debate over police reform and racial inequality.

“Hands up – don’t shoot! Hands up – don’t shoot!” could be heard from protesters at a recent gathering in Ville Platte, Louisiana.

Yet, while free speech is a part of the First Amendment, it doesn’t extend as far as you might think.

One example: your job.

“Those protections are nuanced,” said Mark Gaston Pearce, who is with Georgetown Law’s Workers Rights Institute and is a former chairman of the National Labor Relations Board under President Obama. “People are under the false impression that a private sector employment relationship affords you all of the rights that are guaranteed to you by the constitution – but it does not.”

In other words, an employer, in a state where employment is “at will,” could potentially fire someone for attending or participating in a protest.

“Provided, of course, that it’s non-discriminatory,” Pearce said.

There are a few exceptions. Federal and state employees are protected because they work for the government. Unions also have some protections. Also, four states: New York, North Dakota, Colorado and California have specific laws protecting employees’ free speech rights.

“But that’s four states in a 50-state country,” Pearce said.

There are efforts underway in Congress that could expand free speech protections for employees under the “PRO Act.” It passed the House in February and is now in the Senate.

“If labor law is reformed, then that would bring those kinds of protections to the public,” Pearce said.

Until then, he added that an employee’s best defense may be found in their employer’s own words.

“Oftentimes, a lot of that lies in the employee handbook and the publications they make you sign to prove that you read it – and most employees don’t read it,” Pearce said. “They need to know all of that stuff.”

Because even in America, free speech doesn’t necessarily apply everywhere, all the time.