Legal experts: So far, Nevada employers are respecting workers’ right to protest


Wade Vandervort

A woman holds up a sign in front of Metro Police officers during a protest on the Las Vegas Strip Sunday, May 31, 2020, in Las Vegas.

Sun, Jun 28, 2020 (2 a.m.)

Demonstrations calling for police reform and social justice have brought hundreds of thousands of Americans to the streets of cities across the country for protests.

Las Vegas has been no different, with hundreds — likely thousands — attending protests since the late-May in-custody death of George Floyd, an unarmed Black man, at the hands of a white Minneapolis police officer.

As with many issues in America today, the Black Lives Matter movement has been politicized, meaning some in the movement could face potential backlash by employers or others who don’t agree with a particular cause.

At least in Nevada, that doesn’t seem to be an issue so far, according to Kristen Gallagher, an employment and labor litigator and partner at the law firm McDonald Carano.

“There’s a lot of interesting issues going on in this country right now,” Gallagher said. “Employees are entitled to do what they want to do on their own time. Generally speaking, employers should not be monitoring them, especially if they’re doing things that are within their rights, such as practicing free speech and participating in protected activities.”

For Americans, certain rights — including speaking freely, assembling peaceably in public areas and petitioning the government — are enumerated in the U.S. Constitution’s Bill of Rights.

There can be exceptions in certain situations, however. The Supreme Court in 1969 ruled that free speech did not include speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

In an employment sense, an employee’s public display that puts an employer’s reputation in a bad spot can, in some situations, lead to discipline or termination. An example is the recent case in which a white woman walking her dog in New York’s Central Park lied during a 911 call, claiming that she was being attacked by a Black man.

The man had only asked the woman to put a leash on her dog. The woman, Amy Cooper, was eventually fired from her job at a financial firm after video of the incident went viral.

“We’ve seen across the country where there are people participating in things that are not appropriate, maybe racially charged language that would be in violation of a company policy,” Gallagher said. “We’ve seen employers take action against those employees. There are so many situations that can happen, it’s really specific to the particular conduct being discussed.”

The key to exercising the right to protest, said Las Vegas attorney Paola Armeni, is to not break other laws in the process.

“We can’t trespass on private property or interfere with a police officer or, say, obstruct a sidewalk,” said Armeni, an attorney with Clark Hill. “If people are being arrested for what they think is an inappropriate reason or if they feel they’re being treated poorly at a protest, I think the best thing to do is to stay calm and complain later in written form.”

If an employee does end up in trouble with the law at a protest — or perhaps if they’re seen on a local TV news clip acting out in some way — Gallagher said it would likely be best for an employer to ask if the incident had anything do to with the employee’s job.

While firing people for their views on social justice doesn’t seem to be an issue in Nevada, it has been an issue for some in Florida, according to the Tampa Bay Times. In a story published June 11, the Times reported that a 20-year-old employee of a Plant City, Fla., restaurant said she was fired for attending a protest.

The restaurant’s owner claimed that the employee had violated a company policy while at the protest, though he wouldn’t divulge what the rule was.

That was just one of several similar terminations in the Tampa are, the Times reported. Because Florida is an at-will employment state, private employers reserve the right to let go of a worker for almost any reason, as long as it doesn’t breach state law.

Nevada is also an at-will employment state, and that’s where the waters become muddied, Gallagher said.

If a person were fired for attending a protest, Gallagher said “there would potentially be an opportunity for an employee to argue it’s not an appropriate firing because they were engaging in a protected right.”

As Gallagher pointed out, however, an employer can terminate a worker for any reason, as long as the termination isn’t based on an illegal reason.

In some cases in Florida, according to Times reporting, businesses were flooded with calls or poor online reviews after terminating employees who had been protesting.

Jordyn Habeck, a Las Vegas resident, has been to some of the local social justice protests that have taken place this year. She said she wasn’t worried about what her employer might think about her presence there because it’s her right under the Constitution.

“I work in human resources and I know we wouldn’t write up anyone or fire anyone unless somehow the company name was involved,” Habeck said.

A plethora of large corporations — Nike, Apple and Target among them — have recently either come out in support of social justice reform or announced donations to causes championing various social causes, including Black Lives Matter.

A small sampling of employers in Las Vegas seemed to show that many companies are on board with employees speaking up in public forums as they are wont to do.

A Zappos spokeswoman said the company’s leadership “does not discourage employees’ right to protest as they see fit.” Cox Communications, which employs about 1,600 people in Southern Nevada, doesn’t have a specific policy when it comes to workers and protests, except to encourage measures of safety at any large event, a company spokesman said.

“We always encourage our employees to take (part) in the political process and exercise their free speech as they desire,” the spokeswoman said in an email. “At the same time, we hope they will take similar precautions as they would when attending any large group gathering or event.”

At Amazon — which recently announced plans to hire more than 2,000 seasonal to full-time employees in Nevada in response to increased demand during the coronavirus pandemic — the company actually encourages workers to take time off, if possible, to make their voice heard.

“We understand our employees are likely to feel passionate about any number of issues and may want to join demonstrations,” a company spokesperson said in an email. “As with any time away from work, employees who choose to participate in these activities may use one of the many time-off options available to Amazon employees.”

After all, and as Gallagher pointed out, peaceful protesting is about as American as apple pie.

“It’s what this country is all about,” Gallagher said. “I would encourage people to voice their opinion on these issues, which have become very important.”

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