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After Hours: Can your Lawful Activity Away from the Workplace get you Fired?

I. Can Your California Employer Fire You for Legal Activity Away from the Workplace?

You've probably heard about the events in Charlottesville, Virginia. In sum, the city announced that it intended to take down a statute of Robert E. Lee, the Confederate general. In response, a large group of racists, white supremacists, American Nazi Party members, and KKK members assembled to protest.

I don't want to talk about the counter-protestors or the violence committed by the racist groups. That's not the subject of this post. This blog is about employment law, and what's interesting from an employment law perspective is what happened on Twitter.

A well-known Twitter user posted his request that people scan pictures of the racist protestors. If they recognized anybody, the Twitter user asked them to tell him their names. He would then publicize their names via his Twitter account. Some of these people then lost their jobs as a consequence.

Let's put aside the illegal acts committed by some of the racist protestors. Some of these people were protesting legally, although repugnantly. Could their employers legally fire them for their lawful protest?

II. It's not so Clear

As usual, I'm just going to talk about California law. The law in your state may be different. In California, it's not so clear whether an employer can fire someone for engaging in a legal protest.

When analyzing these issues, we start from the at-will doctrine. As I've discussed in previous posts, you are presumed to be an "at-will" employee, meaning that your employer doesn't need a reason to fire you. The at will doctrine has its limitations, of course. You can't be fired because of your race, age, sex, religion, disability, and a handful of other protected characteristics.

But how about for lawful protest? even really horrible, racist protest?

III. It may Depend on what your Job is

As a first cut, it's worthwhile to figure out if you're actually an at-will employee or not. If you're employed by the government, whether federal, state or local, you may have free speech rights that prohibit your employer for firing you because you exercised that right.

If you're lucky enough to be in a union, your collective bargaining agreement probably (but not necessarily) provides that you can be fired only for good cause. You would have to examine the CBA closely to determine what "good cause" is, but engaging in legal protest probably can't result in your being fired.

Finally, if you have a contract for a period of time, it probably can't be terminated early without good cause. Again, the terms of the contract will control.

IV. At Will is a Powerful Doctrine

Assuming that you don't have any of those protections, and that you are indeed an at will employee, your job may be forfeit if you take actions your employer doesn't like. That's what at will employment means: you can be fired for any reason or no reason at all.

V. There may be some Exceptions

On the other hand, California law has made this issue not quite as clear as it may have been before. California Labor Code §96(k) prohibits "discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises." In 2004, the Labor Code Private Attorneys General Act went into effect, specifically incorporating §96(k), and possibly giving individuals the right to sue for its violation.

In other words, it may be illegal in California to fire someone because of legal activity conducted away from the workplace during nonworking hours, no matter how obnoxious or racist the activity. You also can't be fired for engaging in union organizing, or because your speech was political in nature.

VI. Conclusion

Although California presumes that you are an at-will employee, there are enough exceptions to that doctrine that you may be protected from an unfair firing. If you were fired for legal activity conducted away from the workplace, consider talking with an attorney familiar with this area of the law.

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