Can You Fire an Employee for Protesting?

49 out of 50 states in the U.S., all but Montana, follow at-will employment, so if you’re employed in the U.S. you’re probably an at-will employee. At-will employment means that the relationship between the employer and employee is entirely voluntary and can be terminated at any time. Because there is no employment contract, employees can be fired for pretty much any reason not considered wrongful termination, and they can also leave an employer for any reason. 

However, the government has put limits in place to prevent the abuse or misuse of the at-will doctrine. What does the at-will employment doctrine mean for protesters and their employers?

 

Is Firing Someone for Protesting Considered Wrongful Termination?

Forbes states that one widespread misconception is that “the notion of freedom of speech extends to private workplaces.” In most cases, it is not considered wrongful, illegal, or unconstitutional for a private employer to terminate an employee for protesting. The First Amendment only makes it illegal for the government to prohibit peaceful demonstrations. 

Although Montana is the only state that doesn’t follow at-will employment, California and New York have enacted laws that protect employees' rights to protest. 

California Labor Code 1102 states, “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.” California employers cannot influence employees or prohibit them from taking any sort of political action, including protests. New York has similar protections for employees.  

While protesting is not overall protected, protesting work conditions or economic issues are often protected.  

The Right to Protest vs. The Right to Strike and Picket

Striking or picketing is considered a protected form of protest. When employees strike, they refuse to work due to a disagreement with an employer over working conditions. The UAW strike of 2023 is one example. When employees picket, they participate in a form of protest where people congregate outside a place of work or other location, drawing public attention to a cause. Understanding the difference between protesting and striking or picketing is critical to remaining compliant. 

According to the National Labor Relations Board (NLRB), employers cannot be fired for participating in a lawful protected strike or picket against their employer. When a protected strike ends, employees are entitled to return to work. A lawful strike can fall into two classes– unfair labor practice strikers and economic strikers. According to the NLRB, unfair labor practice strikers have “greater rights of reinstatement to their jobs.” Additionally, the U.S. Supreme Court has upheld the right of employees to go on strike whether they are unionized or not. 

Terminating employees for protesting their working conditions is illegal, but it has to be proven as the reason for termination. On April 29th, Google terminated 50 employees for conducting a pro-Palestinian sit-in. Employees protested to raise awareness and express dissatisfaction with the supposed ties to the conflict. Some terminated employees filed a charge with the NLRB, claiming they were unfairly fired because the protest was “directly and explicitly connected to their terms and conditions of work.” However, the CEO of Google stated that the employees were fired for disrupting coworkers and creating an unsafe work environment.  

Although this situation is ongoing, it represents how compliance surrounding termination can get muddy very quickly when considering classifications of wrongful termination. Some familiar examples of wrongful termination include: 

• Termination due to discrimination regarding protected characteristics such as race, gender, sexual preference, color, religion, national origin, disability, age if over 40, or genetic information 
• Termination that violates public policy: federal or state labor law
• Termination in retaliation to an employee reporting or refusing to participate in harassment 
• Termination in retaliation to an employee reporting or refusing to conduct an illegal act or safety violation (whistleblowing)
• Termination that breaches a contract

Additional Resources

You can stay informed, educated, and up to date with important HR topics using BerniePortal’s comprehensive resources:

• BernieU—free online HR courses, approved for SHRM and HRCI recertification credit
• BerniePortal Blog—a one-stop shop for HR industry news
• HR Glossary—featuring the most common HR terms, acronyms, and compliance
• Resource Library—essential guides covering a comprehensive list of HR topics
• HR Party of One—our popular YouTube series and podcast, covering emerging HR trends and enduring HR topics

• Community—the HR Party of One Community forum, a place devoted to HR professionals to ask questions, learn more, and help others