American citizens are protesting against ICE (Immigration and Customs Enforcement) across the country as the Trump Administration has initiated immigration actions in various Democratic-leaning states. Minnesota is the highest profile example right now, given the deaths of Renee Good and Alex Pretti by ICE officers in the last several weeks. Beyond physical violence, protesters face additional consequences for involvement in protests, including to their employment.
Earlier this month, Tom Homan (Trump’s border czar) spoke with Fox News and stated that “we’re going to create a database where those people that are arrested for interference, impeding and assault, we’re going to make them famous. We’re going to put their face on TV. We’re going to let their employers, in their neighborhoods, in their schools, know who these people are.” (emphasis added) Protesters, then, face the possibility of the federal government notifying your employer of your protests in hopes of you getting terminated.
Do South Carolina Employees Have Any Employment Protections for Protesting Against ICE?
(Note: I’m a South Carolina employment lawyer, so I can only speak for what the law says in our state, so check with employment lawyers in your state for something more specific to you.)
So can you get lawfully fired for protesting against ICE?
South Carolina has not faced a large-scale immigration enforcement action like other blue states have dealt with, even though our state has roughly the same amount of undocumented immigrants as Minnesota, for instance. But if a South Carolina employee participates in protesting against ICE (or, for that matter, for or against abortion, for or against gay marriage, for or against xyz political topic), even absent a similar enforcement action here, then what legal protections does that employee have in terms of their job?
I discussed this topic more recently in relation to the wave of terminations that occurred last fall related to the Charlie Kirk assassination, as well as back in 2016 related to employees voting for Donald Trump. [Read more: Can a SC Employee Be Fired for Making Negative Comments about the Assassination of Charlie Kirk?] [Read More: Can a South Carolina Employee Be Fired for Voting for Donald Trump?] More and more we are seeing people’s employment status being weaponized against them for political reasons, and I suspect this trend will continue.
The Question of Public Employees versus Private Employees Always Matters in these Cases
We go back to the same parameters for free speech, which depends on whether the employee is a public employee (working for the government) or a private employee (working for a business). Public employees have Constitutional protections under the state and federal constitutions relate to their rights for free speech, protests, and free associations. Private employees do not. So if a public employee attends a protest as a private citizen and is speaking out about a matter of public concern, then that speech is protected. However, the employer also has a right to maintain an efficient workplace, so the question becomes one of balancing these two competing interests: right to free speech and right to an efficient workplace. Does the speech or protected actions create disruption in the workplace that is significant? Are employees prevented from working? Does it significantly impact production? If so, then the public employer may have the right to terminate the employee for engaging in protests, even if on the employee’s personal time and in a way that is not related to the workplace.
If the employee engages in wrongful or illegal behavior during the protest, however, then that would be a different story. Vandalism, destruction of property, and assaults on law enforcement are illegal, and that would give the public employer grounds for termination.
The South Carolina Political Rights Statute Provides Protection to SC Employees
For private employees in South Carolina, there are no 1st Amendment protections for engaging in protests on your own time. However, South Carolina does have a Political Rights Statute, S.C. Code Section 16-17-560, which states that “[i]t is unlawful for a person … discharge a citizen from employment or occupation … because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.” Based on this statute, a private employee could bring a wrongful termination lawsuit if the employee is fired solely due to exercising the employee’s political rights (including the right to protest) during the employee’s personal time.
The Political Rights Statute allows a wrongfully terminated employee to seek lost wages and punitive damages. South Carolina employers should be aware of this statute and the protections it provides to employees who the company or its owners may not agree with.
Takeaways for South Carolina Employees Who Are Protesting Against ICE
Protesting against actions taken by state or federal governments is a right that dates back to the founding of this country. But the protection has limits, especially for private employees. If you decide to exercise your political and constitutional rights to protest and engage in free speech, you should be aware of the possible consequences, including potential impacts on your employment.
South Carolina is one of the states that has an express Political Rights Statute, because we as a state recognize the importance of our political rights. The biggest problem arises when a company disagrees with the political beliefs of the person exercising those rights; that’s where lawsuits are going to come up. Remember that the purpose of the Bill of Rights and of laws like the Political Rights Statute in South Carolina are designed specifically for situations where you DON’T agree with someone else. After all, that’s the time that you need those laws the most. So often we get caught up in tribalism (our identification with our own tribe/political party) that we forget that the law protects everyone, not just those that look or sound or believe just like us.
Be mindful of your rights. Be mindful of others. Empathy is not weakness, nor kindness a sin.
Stay safe out there. And give me a call at 864-278-5389 or contact me via our Contact Us page if you have any questions.
