The right to freedom of speech – to speak out on matters of public policy and to support or criticize elected officials – is perhaps the most important and cherished rights we share as American citizens under our Constitution. Public protests on issues all over the political and ideological spectrum have become increasingly commonplace in recent years.
Already, policies enacted by the Trump administration have resulted in numerous large protests. It is estimated that over a million people nationwide participated in the recent “Women’s March on Washington.” Recently, individuals opposed to President Trump’s policies on immigration participated in “A Day Without Immigrants” to show what the nation might look like without immigrants. Many businesses simply closed their doors in a show of support for immigrants and to show how important immigrants are to our economy. Likewise, many immigrants simply refused to go to work. While many employers gave employees time off to participate in the protest, news reports have been replete with accounts of immigrants and supporters being terminated from their jobs for failing to report to work while participating in the protests. Is this legal?
Generally, employees working in the private sector do not enjoy constitutional free speech rights, and can be fired for what in the public sector would be protected as freedom of expression under the 1st Amendment. While the 1st Amendment prohibits government from taking an adverse action against an individual for engaging in protected speech, it does not extend to private employers. Most states, including Ohio, are “at-will” states where absent an express written contract between the employer and the employee, an employee may be lawfully terminated from employment for any reason or for no reason at all.
Narrow and limited protection for participation in a public protest can be found in the National Labor Relations Act. However, protection will exist only if there is a sufficient nexus between employment-related concerns and the specific issues that are the subject of the strike. If an employee or group of employees choose to leave work and withhold their services as an economic tool to improve their own employment relationship, such activity is protected. However, when the employee’s motivation for engaging in political protest is a national political issue over which the employer has no control over, such activity will not be protected. So long as the employer has in effect an established and neutrally applied policy under which it disciplines or terminates the employee, the action is legal. An employer that terminates some employees, while excusing the absences of others, may face a claim of disparate treatment.
Ohio attorney Mark Herron has been practicing law in Cleveland and Northeast Ohio for over 20 years. Mark opened his law firm in Cleveland in 1993 and since then has concentrated his practice in a variety of areas, including employment law, bankruptcy law, domestic relations law, personal injury, insurance law, business law and litigation.