The Volokh Conspiracy
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Can California Employee Be Fired for Attending the Jan. 6 Protest at the Capitol?
California statutes suggest the answer may be no, so long as the firing is based on the political activity, and not on criminal conduct.
In Snyder v. Alight Solutions, LLC (filed yesterday), Leah Snyder claims that her employer fired her on these grounds. Here is what she alleges in the Complaint:
She listened to speeches being made and walked to the Capitol, and then she left. She did not participate in any rioting, she did not observe any rioting, and she did not hear of any injuries to persons or damages to property during her peaceful visit. On return home, she posted two "selfies" with her friends and at least one smiling police officer in front of the Capitol to a comment thread on the social media of Sean Armstrong. She believed she was engaging in a debate over the nature and scope of a protest at the Capitol….
On January 6, 2021, while on paid time off from work, she visited Washington, D.C. She and perhaps as many as one million other people, listened to speeches made by the President of the United States and other important persons. Plaintiff is not a zealous adherent of any system of beliefs. Her impression of the speeches was that the assembled people were being asked to peacefully show their support for the U.S. Constitution and the rule of law while presenting their displeasure with vote counting procedures during the recent national election. At the conclusion of the speeches, she joined a group of people who were peacefully walking to the Capitol. She reached the Capitol, took several "selfies" with friends, and at least one with a smiling police officer in the background. She did not cross or see any barricades. She did not see nor participate in any rioting. She did not enter the Capitol. She did not observe or hear of any injuries to persons or damages to property. She was not arrested and she did not see anyone who was arrested. On occasion, when she encountered police officers, she inquired if walking with the other members of the crowd was legal, and each time, the officers responded that what she was doing was legal. After spending some time at the Capitol, she left and went home.
She claims she was then fired because of those actions.
If her allegations are correct, then the employer likely violated California Labor Code §§ 1101-02. Those statutes (enacted in 1937) provide,
No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
[1.] In Gay Law Students Ass'n v. Pac. Tel. & Tel. Co. (Cal. 1979):, the California Supreme Court made clear that "These statutes cannot be narrowly confined to partisan activity" (unlike some more narrowly written statutes in other cases, that are limited to activity related to parties or elections):
"The term 'political activity' connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons." The Supreme Court has recognized the political character of activities such as participation in litigation, the wearing of symbolic armbands, and the association with others for the advancement of beliefs and ideas.
Going to a political demonstration would thus be covered.
[2.] The statute seems to be limited to actions pursuant to a "rule, regulation, or policy"; and the California Supreme Court has defined "policy" as "[a] settled or definite course or method adopted and followed" by the employer. But, as the Louisiana Supreme Court held, interpreting a similar statute, "[T]he actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings." And such firing tends to coerce other employees: "[T]he actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings" (I quote again the Louisiana case).
This is especially for large companies these days, in which employment decisions have become much more formalized and bureaucratized (in part because the process of hiring and firing has become a highly legally regulated activity). It seems unlikely to me that the employer (which apparently has 15,000 employees) will say, "Nope, this was just a one-off decision, we might well handle other employees completely differently"; generally, part of its argument would indeed be that there's some policy that this 20-year employee has violated, which is why she was fired. This might be why some recent California cases have basically treated these sections as generally applicable to firings based on political activity, e.g.,
If plaintiff was fired for his particular political perspective, affiliation or cause of favoring Proposition 8 or being against same-sex marriage, so that it may be inferred that (as plaintiff alleged) Safeway was in effect declaring that the espousal or advocacy of such political views will not be tolerated—then Safeway's action constituted a violation of Labor Code sections 1101 and 1102.
Ali asserts he was fired not because the content of his articles contravened the editorial policies or standards of the newspaper, but because outside of the workplace he publicly criticized an influential public official for supporting a particular political candidate. Whether Ali can ultimately prove all the elements of his claim, he has submitted sufficient evidence of a public policy violation to survive a motion for summary judgment
[3.] Now a California employer is free to fire employees because they committed crimes, or even because it believes they committed crimes, apart from their political activity. If, for instance, Alight the employer fires anyone who it has reason to think were engaged in a riot or vandalism, that isn't itself firing for political activity.
But Snyder's allegation is that she didn't commit any crimes. And to the extent that the employer inferred that she must have committed crimes based simply on her attendance at the Capitol protest, I think that has to be treated as a restriction on political activity.
[4.] Naturally, all of this would equally apply to people attending any sort of protest, left-wing, right-wing, or otherwise: e.g., an anti-police-brutality protest at which some of the protesters engaged in vandalism or arson, an anti-abortion protest at which some of the protesters illegally blocked entrances to an abortion clinic, an anti-globalization protest at which some of the protesters violated the law, or anything else along those lines.
