The issue of workplace activism has come to the forefront with Google’s recent firing of 50 employees who participated in protests over the company’s contracts with Israel. The employees claim they were unfairly terminated for engaging in a peaceful protest directly related to their terms and conditions of work. The National Labor Relations Board has been called upon to investigate the case, raising questions about the rights of workers when it comes to activism in the workplace. Legal experts warn that both employers and employees need to be cautious in navigating this complex issue.
The fundamental question for employees is what they can do and say when it comes to activism at work. Many employees are unaware that they can be fired for a variety of reasons, as most are subject to the concept of “at will” employment. This means that unless there are specific laws or contracts in place to protect workers, they can be terminated for any reason. One common misconception is that the First Amendment’s protection of freedom of speech extends to private workplaces, which it does not. Employees do not have constitutionally protected rights to express their views without facing consequences.
However, there are some protections in place for employees, depending on their specific circumstances. Some states and local jurisdictions offer protections for off-duty political activities, and unions provide some safeguards through collective bargaining agreements. The National Labor Relations Act allows private sector employees to seek better working conditions and protection from retaliation through protected concerted activity. This means that employees must be acting together for their mutual aid or protection regarding the terms and conditions of employment.
A recent decision by the NLRB has expanded the definition of protected workplace speech. The case involved a Home Depot employee who refused to remove a Black Lives Matter reference from a work apron, with the NLRB ruling that it was for mutual aid or protection. This decision has caught the attention of employers, as it suggests a broader view of what constitutes protected speech in the workplace. Employers must provide a safe working environment for their employees, and policies should be consistently applied regardless of the political nature of the speech or activity.
Employees who choose to engage in protests or activism outside of work may also face risks for future employment. While some states have explicit protections for off-duty political activities, employers may still take action if the conduct is deemed harmful or illegal. The Biden NLRB has set a new standard for employer policies restricting off-duty activities, requiring them to be narrowly tailored to serve a legitimate business interest. Overall, employees need to be aware of the potential risks involved in engaging in activism, both inside and outside the workplace.