How to protest and not get fired

By Rich Bellis

July 05, 2018
 

Remember Juli Briskman, the woman who got fired for flipping off President Donald Trump’s motorcade last fall? Well, in April she sued her former employer for wrongful termination, and now a court will decide whether her viral “FU” was a fireable offense under Virginia employment law.

 
 

Free speech is a constitutional right, but exercising it can still have some consequences for your career. If you’re planning to join a protest, or engage in any form of political activity for that matter, it’s helpful to know where the risks might lie with regards to your job. Here are some pointers and precautions covering a few common circumstances:

If you’re an “at-will” employee

Many employers add guidelines to their employee handbooks asking staff “not to engage in any activity that would ‘damage the employer reputation or brand,’” human resources analyst Laura Handrick, who writes for FitSmallBusiness.com, explains to Fast Company. These clauses can give employers a lot of leeway, allowing organizations to terminate employees by “saying little more than that you ‘violated company policy,’” Handrick cautions, “especially if they don’t agree with what you’re protesting.”

So-called “at-will” employees are especially vulnerable to such discretionary firings. “‘At will’ means they can terminate your employment at any time, and for no reason,” Handrick explains, so if you aren’t sure whether you’re an “at-will” worker, don’t hesitate to ask your boss or HR officer to find out.

If you’re off the clock

Employers can typically fire employees for things they do outside the office, not just within it (as Briskman found out). It sometimes hinges on the degree to which an employee can be seen to represent their employer when they’re not on duty. So take precautions to avoid any obvious associations between your activism and your role as an employee. “Never wear your employer’s logo apparel while protesting,” Handrick advises, and “Don’t protest outside your employer’s office.”

Still, courts have given employers wide latitude in claiming reputational damage. Sometimes the nature of someone’s position is enough. “Let’s say the employee is an insurance agent, realtor, or financial planner,” says Handrik, “and people will naturally associate their actions with the agency they represent.”

“I know of an employee who was fired from his teaching job for making political statements while working part-time as a radio DJ,” she adds. “This was possible because the state [Arizona] allows the ‘at-will’ employment doctrine, and the requirement to be professional and non-political even outside of work was clearly documented as prohibited in the teacher’s handbook. They felt his comments reflected poorly on the school, and could negatively influence his high school drama students.”

As XpertHR legal editor David Weisenfeld pointed out in an article last year for the site, roughly 30 U.S. states have some form of protections on the books for employees’ off-duty conduct. But the limits that one jurisdiction may place on employers from disciplining lawful off-the-clock activism might differ from another’s. For example, Ellen R. Storch, partner at Kaufman Dolowich Voluck, tells Fast Company, many “do not apply to particular types of employers, like public employers, or to conduct that creates a material conflict with the employer’s business interests.”

If you’re protesting your own employer

Storch points out that “federal law could limit the employer’s response” in other ways, including if you’re protesting your employer rather than, say, a government policy. “Section 7 of the National Labor Relations Act, which applies to both unionized and non-unionized employers, prohibits employers from taking adverse actions against employees who ‘engage in . . . concerted activities for the purpose of . . . mutual aid or protection.’ According to cases interpreting this statute,” Storch points out, “an employer could not take adverse action against an employee who participates in lawful political advocacy that relates to labor or working conditions.”

In recent months Silicon Valley tech workers have pushed back against their employers’ military defense contracts. Since labor conditions aren’t at issue, the bigger question is whether their activism impacts business. “Google, Amazon, and Microsoft are getting negative press due to recent employee protests,” Storch continues. “If these companies can show that they are losing business because of the negative press, they may be able to terminate employees who participate in the protests, depending upon where those employees live.”

If you’re comfortable alerting your boss

“Employees should consider asking for their boss’s blessing or approval rather than [their] permission,” says Handrick, “as they have a right to free speech, but don’t necessarily want to take the risk of losing their job over a political rally or protest. They can ask something like, ‘Do you have any concerns with me joining the XYZ rally this weekend?’ That gives the employer the professional courtesy of advance notice and an ability to chime in about any concerns they have,” she explains.

“The employer may say, ‘Just don’t wear your logo jacket’ or, ‘I’d really rather not have our business associated in any way with that cause.’” From there the choice is yours, but it’ll be much easier to make once you know where your employer stands.

 

If you’re tweeting

“Employers are more likely to have social media policies that limit what employees can post than they are to have policies that limit what events employees can attend,” Storch says, adding that social media policies tend to be more legally enforceable for two reasons: First, they’re often worded quite precisely, and second, “evidence of political speech on social media is more readily available to an employer and more difficult for an employee to deny, than attending a rally in a public space would be.”

“That’s why some employees keep a separate social media account, with no work ‘friends’ on it,” says Handrick, “so that they can post their political commentary with little risk of it impacting the business they work for, or reflecting poorly on their industry or employer.”

In terminating her, Briskman’s employer, the government contractor Akima, LLC, cited its social media policy prohibiting obscenity. “If instead of making an obscene gesture, she was photographed and later posted the photograph of her holding a sign indicating that she objected to a particular Trump policy,” Storch says by way of example, “her company could not have relied on its prohibition of obscenity to terminate her.”

If you’re joining a protest but not leading it

Handrick says it’s smart to “avoid any kind of profanity while protesting, and do your best not to be the one interviewed on camera.” The risk to your job goes up if you’re the one at the head of the march, swearing into a megaphone, rather than one more participant in the crowd. As a general rule, she adds, “It’s best, if you don’t have the blessing of your employers, to protest in ways that won’t embarrass your employer.”

 
 

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