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For better or worse, employers face new challenges in our current, divisive climate, as politics worms its way into workplaces across the country. Let’s suppose you operate a highly visible business in your community, and, at a local event, one of your employees, “takes a knee” during the playing of the national anthem. What can you do? What should you do?
Of course, this particular form of protest began in August 2016 when NFL quarterback Colin Kaepernick sat on the bench during the national anthem for a couple of pre-season games. After meeting with at least one military veteran, Kaepernick switched from sitting to kneeling during the anthem.
Kaepernick has repeatedly explained that he knelt to draw attention to the problems of police brutality and racial injustice in America.
After President Trump recently criticized protesting athletes and suggested they should be fired, more athletes began to take a knee or link arms, either to show solidarity with Kaepernick’s original message, to assert their rights to free speech or both. To be sure, President Trump is not the athletes’ only critic. Other voices, too, have disapproved of their choice to protest during the playing of the national anthem.
So, can a private employer do anything if one of its employees engages in this conduct? Several legal and practical issues are implicated by this question. This article will provide a summary of some of those issues, but as always, does not substitute for the advice of counsel.
The first thing that might come to mind when we talk about public protests is the First Amendment of the U.S. Constitution. However, the Bill of Rights only restricts the government’s ability to interfere with individual liberties, it does not restrain private citizens, organizations or businesses. Employees have a First Amendment right to engage in peaceful public protest without government infringement. The Constitution does not protect them from discipline at work.
Although the First Amendment may not apply, there are other laws that may affect an employer’s response to this politically- and emotionally-charged situation.
In California, our Labor Code prohibits employers from taking adverse actions against employees (i.e., firing, demoting, etc.) because of their lawful, off-duty conduct — including political activity. Also, under California law, employers may not coerce employees, discriminate or retaliate against them, or take any adverse action because they have engaged in political activity. An employer could run afoul of these laws should it discipline or terminate an employee for taking a knee at a public event during the playing of the national anthem.
It also could be argued that the protest is protected by the National Labor Relations Act (NLRA) — which generally covers both unionized and non-unionized non-supervisory employees working in the private sector. The NLRA protects the right of employees to engage in concerted activities “for the purpose of mutual aid or protection.”
Employees may engage in protected political advocacy so long as it relates to labor or working conditions. For example, an employee attending a demonstration in favor of immigration reform could arguably be protected under the NLRA. In our example, there may or may not be a connection between the protest and the employee’s working conditions.
In addition, employment discrimination laws may be implicated as well. If the protesting employee falls within a protected class (for example, if he is African-American, and is subjected to an adverse employment action, the employee may believe that he has been discriminated against because of his race.)
Employers should review existing company policies to determine whethe r they touch on this scenario. If a policy does exist, it would also be necessary to consider whether it is regularly and consistently enforced.
Finally, employers should carefully consider the message that may be sent if it takes action, or takes no action, in response to the employee’s conduct. Many Americans feel very strongly about the issues associated with the ongoing protests, and an employer that responds may be seen as “choosing sides” in this difficult and ongoing political and social debate.
— Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at [email protected].