Legal Updates – August 2020

Can Employers Fire Employees Who Attend Protests? 

In the wake of George Floyd’s death at the hands of police earlier this summer, people all across the U.S. have attended protests in support of racial equality, the end to police brutality, and the Black Lives Matter movement. This has sparked concern from some protesters that their participation in protests could lead to the termination of their employment. But, is it legal for employers to fire employees who attend protests outside of work?

In most states, the answer is yes. There are no federal protections for employees that attend protests, even if attended outside of working hours. Though the Constitution affords protections for free speech and the right to assemble, there is no protection against employment consequences of attending a protest. In fact, most employment relationships are at-will, meaning that an employer can fire an employee for any reasons provided it is not discriminatory. For example, though Title VII protects against discrimination in the workplace based on an employee’s sex, race, religion, etc., political speech is not covered and it is unlikely that protests and/or political speech tied to an individual’s protected class would be protected. This leaves employees without federal protections.

However, states can offer their citizens more protections than federal laws. In Colorado, and a handful of other states, employees have protections against being fired for activities engaged in outside of work. For example, in Colorado § 24-34-402.5 states that an employer discriminates if it terminates employment for “employees engaging in lawful activity off the premises of the employer during nonworking hours.” Though there are some exceptions to this rule, the do not explicitly cover joining a lawful protest when an employee is off-the-clock. Other states that have similar “off duty” protections for employees are California, North Dakota, and New York. 

Racial Discrimination & Harassment Claims Likely to Rise in 2020   

The past few months have seen protests worldwide calling for racial equality. Similar to the rise in sex discrimination claims during the #MeToo movement, law firms are expecting to see a rise in racial discrimination and harassment lawsuits stemming from the Black Lives Matter movement. One reason for the expected increase in lawsuits is because people feel more encouraged and comfortable speaking out about the racism they face daily at work. Because of this, it is likely that retaliation claims for speaking out will rise as well.

In 2019 the EEOC received 23,976 race-based charges, which was notably less from earlier years. But, many expect that these numbers will rise in 2020. There has already been increased publicity around racial discrimination claims by employees against their employers, including major corporations like McDonald’s.

In mid-July three black McDonald’s employees in Tampa filed a lawsuit against their employer in federal court claiming they were subjected to months of racist comments and retaliation by their white general manager. The employees claim that the manager made “disparaging comments about Black employees and customers” and that corporate employees did not take their complaints seriously when they tried to submit a signed petition related to their concerns. This lawsuit also claims that the McDonald’s manager retaliated against the black employees for speaking out by cutting their hours and giving them poor performance reviews. But this is not the only lawsuit McDonald’s is facing related to racial discrimination. Two senior executives are suing the company alleging that under the former CEO the company “became overtly hostile to African Americans in both words and deeds” by firing and demoting black leadership and pushing out black franchisees.

McDonald’s isn’t the only company facing racial discrimination and retaliation claims from employees. WeWork’s former head of diversity and inclusion has accused the company of underpaying minority employees and keeping them out of leadership roles. He also accused the company of using him in the company’s promotional materials despite the fact that he was given little responsibility and relegated belittling tasks like moving furniture. He also claims that his complaints lead to his dismissal. Though WeWork claims that the complaints are unwarranted, publicity like this is what encourages other employees to step forward with their own claims.

But, major corporations aren’t the only ones facing lawsuits. Lawsuits have been filed by court officers in Massachusetts, local government employees in Florida, and University employees in Ohio. These are just a few of the recent racial discrimination and retaliation lawsuits that have been filed in 2020. It is likely that there will be a spike in racial discrimination and/or retaliation claims throughout the rest of the year and into 2021.

Enhance Law Enforcement Integrity bill – Colorado SB 20-217 effective June 19, 2020 includes several updated areas for law enforcement including:

  • Body worn cameras;
  • Use of force;
  • Failure to Intervene;
  • Convicted Peace Officers;
  • Protester Protections; and
  • Qualified Immunity.

To read more about this new bill, please click here.

Colorado SB 20-205 “Healthy Families and Workplaces Act” (HWFA) effective July 14, 2020 through December 31, 2020 states that Colorado and its agencies or entities, counties and cities, and municipalities are included in the HWFA and must comply with the statute’s provisions.  To learn more about SB 20-205, click here.  For a copy of the updated Colorado Department of Labor and Employment poster for Paid Leave, Whistleblowing & Personal Protective Equipment, click here.