The California Constitution states “every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
Under Cal. Lab. Code § 1102 an employer is explicitly prohibited from attempting to “coerce or influence his employees” by threatening termination or “loss of employment” in an effort to encourage or discourage the employee from engaging in “any particular course or line of political action or political activity.”
More specifically, an employer shall not “discharge an employee or in any manner discrimination, retaliate, or take any adverse action against any employee or applicant . . . [for] conduct delineated in this chapter. . .,” Cal. Lab. Code § 98.6, which would include “lawful conduct occurring during nonworking hours away from the employer’s premises,” Cal. Lab. Code § 96(k). In essences this means that the Labor Code expressly prohibits an employer from terminating an employee who engages in protected political speech at a protest, provided it is during non-working hours and away from the place of work.
In the case of a protestor who was arrested at the protest, an employer also “shall not . . . utilize, as a factor in determining any condition of employment including . . . termination, . . . any record of arrest or detention that did not result in a conviction.” Cal. Lab. Code § 432.7. In other words, without a conviction, the employer is prevented from using the arrest as a reason for termination; however, the employer may ask about the arrest.
Notably, there are some exceptions to this rule as laid out further in the Labor Code. Some employers who are permitted to make employment decisions related to arrest records include, but are not limited to, “criminal justice agencies,” “health facility[ies],” or “public agenc[ies].” Cal. Lab. Code § 432.7.