October 17, 2017
On September 23, 2017, at a purported campaign rally for Senator Luther Strange, President Trump made the following extemporaneous comments regarding the National Football League, its owners, and its players:
Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’
Putting aside whether you believe it is appropriate for the President to call American citizens a “son of a bitch” - the President’s comments, and subsequent tweets, added fuel and wind to a brush fire and turned it into a forest fire. The small and isolated protests by players kneeling during the National Anthem have become more widespread since and continue to fill the news on Sundays and Mondays.
These events have raised the question for management – what, if any, protests must I permit in the workplace. The answer to this question depends on a number of factors discussed below.
Often, the first reaction is that if it’s a protest, it is protected by the First Amendment, and therefore an employee engaging in a protest cannot be terminated. As a blanket statement, this is not accurate. The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Political speech (including protest) in traditional public forums, such as parks, streets, outside government buildings, is provided a high degree to Constitutional protection and blanket prohibitions of that speech is unconstitutional. A government entity may place reasonable time, place and manner restrictions on such speech (protest) so long as the restrictions are content neutral.
If a government worker engages in a protest, whether that government worker may be terminated for a protest is a complicated analysis that requires an article of its own.
As for private workplaces, however, the First Amendment protections do not apply. But as described below that is not the end of the analysis.
Protest in Private Workplaces
A private employer is not Constitutionally prevented from disciplining or terminating an employee for protests in the workplace. For instance, if an employer has the National Anthem played prior to the commencement of every workday, if an employee kneels, the employer is not Constitutionally prevented from terminating that employee.
However, if a group of employees turn their back to the boss, or verbally disagree, in protest of that boss’ decision not to provide free lunches, or to pay a bonus that was promised, or the employees kneel during the playing of the National Anthem to protest poor working conditions, the employee may have protections beyond those provided by the First Amendment. In these situations, employers may be in a situation similar to the NFL owners where they may not have a free hand to terminate their players for kneeling during the National Anthem.
Members of unions in the United States are provided certain statutory rights regarding the ability to join together in organizations and jointly bargain for better terms and conditions of employment. One of the rights provided to members of unions is the right to engage in concerted activity. Concerted activity is defined by Section 7 of the National Labor Relations Act as:
Employees shall have the right to … engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities . . . .
More simply, if the employees (whether or not unionized) are engaging in collective activity to improve their working conditions, those activities are protected and an employer will likely be prevented from taking disciplinary action against the employees for said concerted activity. If discipline occurs the employees may enforce their rights through their union, the National Labor Relations Board and/or the state/federal courts.
Thus, whether the NFL owners “have their hands tied” regarding the National Anthem protests depends to a great extent on “why” the players are kneeling. If the kneeling relates to the terms and conditions of employment – e.g., the “black listing” of Colin Kaepernick or the disciplinary powers of Commissioner Roger Goodell - the NFL owners ability to terminate or discipline any player is likely very limited. However, if the kneeling is simply an expression of displeasure of the President calling the players “sons of bitches” this is likely not concerted action and the NFL owners have a greater ability to discipline the player.
In short, there is no simple answer. This is not meant to minimize the understandable displeasure and anger many Americans feel over citizens not standing for the National Anthem. But, whether an employer can take action against the employee is not governed only by displeasure/anger.
Despite Jerry Jones’ recent comment that he will fire any player who kneels during the National Anthem, he may not have a legal basis to do so, if the kneeling players’ activity falls within the concerted activity protection. Moreover, one imagines that Mr. Jones’ position might change if the kneeling player were Dak Prescott or Dez Bryant.
Other Limitations on a Private Employers
Retaliation – In circumstances relating to complaints of harassment/discrimination in the workplace or whistleblower events, a private employer may be prohibited by statute from taking disciplinary action against a complaining/protesting employee. In circumstances where an employee has made complaints to any government agency, the employer is well served to discuss with counsel whether the employer may take disciplinary action against that employee.
Despite the strong feelings that are being evoked by the kneeling during the National Anthem, a private employer’s decision to terminate an employee cannot be governed by that emotion, unless a lawsuit is of no concern. Although First Amendment protections, in general, do not concern private employers, a private employer must still be on guard not to violate an employees’ concerted activity rights or their anti-retaliation rights. The emotion of this issue wants to evoke a black and white response – however, the law surrounding employee rights is often gray. With that said, consultation with a lawyer is always a good idea before terminating an employee.
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.