Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
It happens. When the public is already highly-charged with emotion, employees get fired. They get fired for good reasons, like getting caught being racist on camera or refusing to wear face masks. They get fired for bad reasons, like reporting discrimination. And they get fired for scary reasons, like getting arrested while engaging in peaceful protests.
This post isn’t about how to not get arrested at a protest.[1] If you are engaging in civil disobedience against state-sanctioned murder of people of color today, in all likelihood you have already weighed the pros and cons of making your voice heard versus being arrested for blocking traffic or disturbing the peace. These are the choices every person has to make for themselves.
This post is about what to do if your employer calls you on the carpet on Monday because they saw you protesting. Or because you got arrested. Or because they saw your facebook page.
First, unless your employer is a Government agency, remember that you do not have first amendment rights in the workplace.[2] In most cases, your employer can fire you for any reason or no reason at all.
That said, pay attention to what the Employer says and does. Is everyone who got arrested getting fired? Or just a subset, for instance, people of color or people from a particular nation? Are some people getting lesser penalties, such as suspensions? How about people who got arrested for counter-protesting?
If penalties for similar conduct split along racial lines, then start writing. Take copious notes. Note what the employer says to you and what the employer’s security guards say while they’re escorting you out. Write it all down. It might or might not be evidence of discriminatory intent (let the lawyer sort that out). When you get home, write up your observations in an email and send them to yourself.
Do’s…
- Do call your Union Rep. If you’re in a Union, the “for cause” provision in your CBA is the strongest protection you have against politically-motivated terminations.
- Do apply for unemployment benefits immediately.
- Do call your criminal defense attorney and let them know that you may be asking them to communicate with your employment law attorney. (Your employment law attorney will probably need information such as whether you should be asserting the Fifth Amendment during any investigations by the State Division of Human Rights).
- Do ask your defense attorney whether the conduct for which you were arrested was actually illegal or not. In the State of New York, you are not supposed to be fired for engaging in legal off-duty conduct.[3] So if you were actually not obstructing traffic or disturbing the peace, the employment law attorney needs to know that.
- Do call an employment law attorney.
- Do bring the employment law attorney your notes and any paperwork provided to you by the Employer.
- Do tell the employment law attorney about any prior disciplinary actions taken against you during the course of your employment. The employment law attorney may be able to neutralize the effect of those disciplines, but can’t do it without all the facts.
- Do bring the employment law attorney your notes about any previous discriminatory conduct or conduct that went negative after you reported discrimination. The attorney needs names, dates, and witnesses for each incident, and will ask you very specific questions about what precisely was said at what point.
…and Don’ts
- Don’t take anything from the employer’s premises other than your own belongings. It is tempting to download all your emails and the files you were working on in an attempt to defend yourself. Don’t do it. That is the employer’s property and a vindictive employer will come after you for “stealing” it.
- Don’t send emails from your work account to your personal account. Even if you’re not emailing yourself documents, it still “looks” like stealing, and it may give the employer an excuse to subpoena your personal devices.
- Don’t sign anything. If someone is trying to pressure you into signing a severance agreement immediately, it may mean that they sense they are subject to liability.
- Don’t give the employer a reason to fire you. Don’t talk back, use profanity, or engage in hostile or aggressive conduct. Stay calm and observe everything around you.
- Don’t assume that the employer’s conduct is actionable. Don’t assume it’s not actionable. The employment law attorney is the expert. Let that person figure out the legalities of what the employer did.
- Don’t let getting fired stand in the way of your continued activism. You are doing the hard work that citizens have to do in a democracy. And the other activists around you may know about jobs that don’t interfere with your work.
If you’re protesting today, your day job should be the last thing on your mind. Your primary concerns should be making your voice heard and staying safe. But if work gets crazy on Monday morning, the above steps may help you protect your workplace rights.
[1] If you’re out there today protesting, please make sure you know how to identify protest monitors and legal observers, and have a safety plan.
[2] If your employer is a Government agency, you have limited First Amendment rights in the workplace, and only in very limited circumstances will they protect you from being fired.
[3] Note the words “supposed to.” The reality of this prohibition is extremely messy and difficult to prove.
