California Law Protects Workers From Termination or Retaliation for Participating in Black Lives Matter or Other Political Protests

The massive protests following the murder of George Floyd have brought together people of all races, ages, and walks of life in a collective movement to address systemic racism and police brutality against Black people. Outten & Golden is profoundly committed to supporting workers participating in Black Lives Matters protests. If you work in California, you should know that your wrongful termination, retaliation, or other adverse employment actions for political opinions you express or activities you engage in outside of work.

In California, the law protects workers' rights to political expression outside of work. California Labor Code Section 1101 states that "No employer shall make, adopt, or enforce any rule, regulation, or policy:

• Forbidding or preventing employees from engaging or participating in politics.
• Controlling or directing, or tending to control or direct, the political activities or affiliations of employees.

Similarly, Section 1102 of the Labor Code provides that: "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity."

As the California Supreme Court put it in Gay Law Students Assn. v. Pacific Tel. & Tel. Co., "These sections serve to protect 'the fundamental right of employees in general to engage in political activity without interference by employers.'" Similarly, as a California federal court noted in Smedley v. Capps, Staples, Ward, Hastings & Dodson, "The courts have traditionally interpreted [Section 1101] as being intended to defend employees engaged in traditional political activity from reprisal by their employer."

The Law Only Protects Political Activities Outside of Work

Labor Code Sections 1101 and 1102 only protect employees from retaliation for political activity undertaken outside of work. So, an employer cannot fire an employee for participating in BLM protests over the weekend or outside of work hours. But an employer may restrict employees' political activities at work and the use of their positions and employer-provided equipment for political expression.

Your Arrest at a Political Protest Cannot Justify Your Firing

Police have arrested thousands of protesters at demonstrations across the nation. Many of these arrests are questionable at best, and many never result in criminal charges or convictions. An employer who wants to terminate an employee for their political activities may try to hide behind an employee's arrest as a justification for doing so.

But California Labor Code Section 432.7 prohibits employers from asking job applicants and employees about an arrest that did not lead to a conviction and bars employers from using an employee's arrest pending trial as the sole determining factor in making an adverse employment decision against them. Similarly, the Fair Chance Act makes it illegal for most employers in California to ask about the criminal record of job applicants before making a job offer.

We Stand Up for Workers Who Stand Up for What's Right

Your efforts to fight racial injustice should not mean having to fight for your job. But if you believe that your employer fired you or took other adverse actions because of your political activity outside of work, please contact the employment law attorneys at Outten & Golden. We have the experience and commitment to protect California workers from unlawful retaliation for engaging in political activity and are ready to stand up for your rights.