Protesting is considered a protected political activity in California, whether the topic is immigration, war, or another political issue. But your specific rights as a worker who engages in a political protest will depend on your situation and when, how, and where you decide to protest.
Can I be disciplined or fired for participating in a political protest?
You cannot be fired simply because you engaged in a political protest that occurred outside of the workplace since this is considered a protected political activity in California. Specifically, California Labor Code 1102 does not allow your employer to discharge or threaten to discharge you for following any particular “course or line” of political action or activity, such as a gathering or march to protest actions by federal, state, or local government officials. Additionally, under Labor Code 1101, your employer cannot “make, adopt, or enforce” any rule or policy that forbids or prevents you from engaging or participating in politics.
Similarly, Labor Code 96(k) and 98.6 protect you from being demoted, disciplined, or discharged for “lawful conduct occurring during non-working hours away from the employer’s premises.”
However, you can be disciplined or fired if you missed work without permission while you engaged in the protest (unless your employer never disciplines employees for missing work for any other reason). You may also be disciplined or fired if your political activities significantly disrupt your employer’s business or your job duties.
Besides participating in a political protest, what other political activity is protected under California Labor Codes 1101 and 1102?
Protected “political activity” has been broadly defined to include not just “partisan” political activities, such as protesting the actions by local or federal government, but also actions that promote a social cause or movement. Actions such as participation in litigation, the wearing of symbolic armbands, and the association for the advance of beliefs or causes have traditionally been seen as political activities by the courts.
Generally, courts have found that political speech and activities that occur outside of the workplace (e.g., a political protest away from your work) are protected. However, if your political activity significantly disrupts your employer’s business or your job duties you may be disciplined or fired.
If you work for the government, your on-the-job “political” speech may also be protected by the First Amendment to the U.S. Constitution because it likely addresses a matter of “public concern.”
On the other hand, the law is unclear whether or not political speech and activities performed during working hours are protected. Furthermore, courts have held that Labor Codes 1101 and 1102 do not protect political actions that promote or advocate for the overthrow of the U.S. government by force or violence.
What happens if my employer violates California Labor Codes 1101 or 1102?
Any employer who violates Cal Labor Codes 1101 or 1102 is guilty of a misdemeanor. The violation is punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine not to exceed $1,000, or both. If the employer is a corporation, the violation is punishable by a fine not to exceed $5,000.
May I recover money damages for a violation of California Labor Code 1101 or 1102?
Yes, nothing in the Labor Code prohibits you from recovering damages from your employer for an injury suffered through a violation of the Labor Code protecting political activity. So, if you were suspended without pay for engaging in a political protest, you could be entitled to collect your lost pay. If you believe your employer has violated one of the Labor Codes, you may file a claim with the California Labor Commissioner. (The California Labor Commissioner has offices statewide. Contact information is at www.dir.ca.gov/dlse.)
If I was arrested due to political activity, can my employer take action against me while the arrest is pending?
If your arrest could reasonably have an impact on your employer’s business (e.g., you are an off-duty police officer arrested for engaging in violence at a political protest), then your employer may take action against you while the arrest is pending trial.
However, under California Labor Code 432.7, your employer is not allowed to use your arrest pending trial as the sole determining factor in making a negative employment decision against you. (Otherwise, there would be no presumption of “innocent until proven guilty.”). Therefore, you can expect your employer to ask about the circumstances of your arrest pending trial to determine whether the arrest could have an impact on your employer’s business.
Can my employer take action against me if my arrest is resolved without a conviction?
Once your arrest has been resolved in your favor (e.g., you were not convicted, given probation, or had any other mark placed on your criminal record), the mere arrest normally can no longer be used against you.
What are my remedies if my employer wrongly fires me because of an arrest?
You may sue for actual damages, such as back pay (your lost wages) and front pay (the amount of money you would have been paid until you can get a new job) under the California Labor Code. You should also try to “mitigate” your damages, which means making reasonable efforts to get another job, or else you may lose your claim to both back and front pay.
Disclaimer
This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, Legal Aid at Work cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.