In light of the recent tragedy in Charlottesville, First Amendment Rights and employment rights have converged all over the country. Following reports of several people who were caught on camera marching with torches in support of the White Nationalists being terminated from their jobs, people are wondering whether it is actually legal for an employer to fire someone for simply attending a rally. The answer depends on which state you work in, actually. Here are some things to consider.
Protected activity v. criminal activity
First, it is important to make a distinction between employees who were merely in attendance at such a rally and those who engaged in some type of violence or criminal activity at those rallies. An employer typically has the right to terminate an employee based on criminal activity. But, when it comes to First Amendment and politics-related activity the question is much different.
To whom do the First Amendment protections apply?
The prohibitions of the First Amendment apply only to government employers. That means nongovernmental employers, regardless of whether they receive government funding or contracts, are not subject to the prohibitions regarding free speech. On the other hand, private employers are subject to various federal employment discrimination laws; however, those statutes do not prohibit discrimination based on political affiliations.
Some states have laws banning employment decisions based on political activity
There are some states, cities, and counties around the country that have banned employment discrimination based on political activity occurring outside of work. Specifically, certain states prohibit employers from terminating employees for “political activity,” including general ideological advocacy, in addition to election-related politics. Some of those states include California, Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah and West Virginia.
Connecticut, for example, protects employees from retaliatory employment actions based on broad categories of speech. North Dakota and Colorado both prohibit employers from terminating employees for any type of off-duty activity that is lawful, including speech.
What does Alabama say about politics in the workplace?
Under Alabama law, an employer is prohibited from using any form of coercion in order to influence an employee’s vote during an election. Nor can an employer ask an employee who they voted for. Coercion commonly takes the form of threatening to terminate an employee, reduce their compensation or benefits, or punish an employee in any way, in an effort to coerce the employee to vote in a particular manner. Alabama’s law does not address political speech, activity or affiliation.
Alabama and other employment-at-will states
The term “employment-at-will” means that your employer can end your employment at will – i.e., whenever he chooses to do so. So, generally speaking, you can be fired for nearly any reason, and it doesn’t even have to be a good reason. The law generally presumes that you are employed at will unless you have some proof that your employer intended otherwise when you were hired.
Such proof is rare since most employers take painstaking efforts to ensure you retain your at-will status. In fact, you can usually find a statement to that effect in your employer’s written policies, handbooks, or other employment-related documents. When you first applied for your job, the application you completed and signed probably had an acknowledgment of some kind indicating that you would be considered an at-will employee if you are hired.
If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!