The National Anthem: Let Them Stand or Make Them Stand?
It has been a long-standing tradition for championship sports teams to visit the White House and meet the president. Consistent with that tradition, the Philadelphia Eagles were invited to visit the White House on May 6, 2018, after they won this year's Super Bowl. As it turns out, the visit never took place.
The seeds that led to the revocation of the Eagles' invitation were sown a couple of years ago. Players started kneeling during the “The Star Spangled Banner” to protest—as Colin Kaepernick (reportedly the first player who kneeled in protest) put it—discrimination and police brutality based on race. That caused a tremendous amount of controversy over whether players could and should be permitted to kneel during the national anthem. The public had strong opinions, both in favor of and against the players' actions. In fact, the “kneeling” issue itself in some ways began to overshadow the issues being protested by the players who took a knee during the anthem.
Recently, the NFL implemented a policy that allows the league to punish teams that don't discipline players—i.e., their employees—who refuse to stand or who engage in what is deemed to be disrespectful conduct during the anthem. Under the policy, players who don't wish to comply can remain in the locker room, but if they are on the field during the national anthem, they must stand and be respectful. President Donald Trump weighed in on the controversy, and many players took issue with his view.
Several Eagles players declared during the month of May that they would not attend the White House ceremony in response to the president's position. President Trump then canceled the ceremony. The cancellation of the Eagles' White House visit has raised questions about whether employers can regulate employees' speech and whether politics have any place in the workplace. Talking heads, pundits, and watercooler experts have debated whether the players have the right to take a knee in protest. In a nod to all the recent chatter, this article discusses employers' duties and rights vis-à-vis employees' rights to express themselves in the workplace.
No Free-Speech Right in the Private Workplace
The first question is whether the players have a free-speech right to kneel and express their political opinions by taking a knee during the national anthem. Some people answer that question in the affirmative. Indeed, for some, the logical extension of this view is that the NFL and the individual teams do not have the right to dictate whether the players express themselves by kneeling.
There's no doubt that the players have a constitutional right under the First Amendment to freedom of speech and expression. The question is, what is the reach of that right to free speech? Does it prevent an employer from restricting an employee's ability to speak or engage in political expression?
Simply put, the First Amendment restricts only the government from preventing or abridging an employee's free speech. According to the U.S. Supreme Court, a person claiming infringement of his constitutional right of free speech generally must prove the state (i.e., the government) took some action to contravene his rights. Thus, the government cannot prohibit the players' exercise of their constitutionally guaranteed free-speech right by kneeling in protest.
By contrast, there is generally no constitutional right to free speech in the workplace. Except in very rare cases, speech disputes between private individuals or entities do not implicate the First Amendment because no state actor is involved. Put differently, a private-sector employee doesn't have a free-speech claim against his private (i.e., nonpublic or nongovernmental) employer.
In the context of the NFL kneeling issue, both the players and the teams are considered private individuals or entities, so generally speaking, the First Amendment doesn't apply. The First Amendment's protections simply don't extend to the NFL's ability to regulate the political speech of its players while they're on the field because there is no state actor. Consequently, an NFL football player cannot sue his team (i.e., his employer) or the league for violating his free-speech rights under the First Amendment. Any protection of the players' free-speech rights must come from the collective bargaining agreement, an individual employment agreement, or other applicable laws. Absent some protection in those sources, the players are probably limited to protesting when they are not “working.”
Likewise, the U.S. Constitution doesn't prevent an employer from restricting its employees from engaging in political protests or other political speech while they're “on the clock.” Although other laws may apply, the Free Speech Clause of the First Amendment probably will not protect an employee's ability to engage in political speech in the workplace. However, other laws may protect the employee's right to speak on a limited basis. For example, antidiscrimination laws such as Title VII of the Civil Rights Act of 1964, whistleblower statutes, and other local and state laws may allow an employee the right to engage in limited speech in the workplace.
What About Public-Sector Employees?
Governmental employees enjoy certain speech protections. For example, under Utah law, career service employees are permitted to participate in political activity as long as it doesn't occur during working hours. Partisan political activity is protected, and it cannot be the basis for decisions regarding employment, promotion, demotion, or dismissal. Public-sector employees may make voluntary political contributions to any party or candidate of their choice.
However, public officers and employees are not permitted to engage in political activity during working hours. Likewise, public-sector employees are not allowed to solicit political contributions from other employees during the hours of employment. A governmental employer can discipline employees for violating workplace rules prohibiting political activities during working hours.
In addition, certain whistleblower laws allow public-sector employees to speak up about matters of public concern. Utah's whistleblower statute, the Utah Protection of Public Employees Act (UPPEA), bars adverse employment actions against public employees who report a waste or misuse of public funds, property, or manpower; a violation or suspected violation of a law, rule, or regulation; or gross mismanagement, abuse of authority, or unethical conduct by a state employer.
Under the UPPEA, a public employee must file a claim “within 180 days after the occurrence of the alleged violation” of the statute, or the claim is lost. In other words, a whistleblower claim must be initiated within 180 days of the adverse employment action.
NLRA Protections May Come Into Play
The National Labor Relations Act (NLRA) was enacted to protect the rights of employees to organize and engage in collective bargaining. Under the NLRA, employees are allowed to join together to improve working conditions and wages. Of course, that can happen only if employees are able to discuss the terms and conditions of their employment.
In some respects, the NLRA limits an employer's ability to regulate an employee's ability to speak. With some exceptions, the NLRA prohibits employers from infringing on employees' ability to discuss wages and the terms and conditions of employment—even when their conduct involves political speech or expression.
Some State Laws Protect Employees
In some cases, state laws prevent private-sector employers from infringing on or banning an employee's political speech in the workplace. For example, prohibitions against some political speech may be considered discriminatory in violation of the Utah Antidiscrimination Act (UAA).
Religious expression in the workplace is also protected under Utah law. The UAA specifically states that it should not be interpreted to infringe on the freedom of expression or association or the free exercise of religion protected by the U.S. and Utah Constitutions. Generally, employers must permit employees to express religious and moral beliefs in the workplace on equal terms with any other types of permitted expression as long as the expressions are made in a reasonable, nondisruptive, and nonharassing way. However, when an employee's expressions directly conflict with the “essential business-related interests of the employer,” the employer is exempt from this requirement.
Sometimes, a person's manner of dress or grooming can be deemed speech or expression. The UAA allows employers to adopt reasonable dress and grooming standards as long as their rules afford reasonable accommodations based on gender identity to all employees.
Political Speech Outside the Workplace
The First Amendment may not protect private-sector employees from adverse employment actions based on off-duty conduct, but certain state laws afford protection. The UAA prohibits discrimination or adverse employment action based on an employee's lawful expression outside the workplace of religious, political, or personal convictions unless the expressions or expressive activity directly conflicts with an essential business-related interest of the employer. This prohibition includes expressions about marriage, family, or sexuality and applies regardless of the position being taken.
Generally, an employer can prohibit an employee from engaging in political speech or expression in the workplace or anytime the employee is representing the employer. However, employees are typically free to engage in political activities, expression, and speech outside the workplace.
You should become familiar with the laws that implicate your right to restrict or limit employees' ability to speak or engage in political expression. Review your policies, practices, and employee handbooks to ensure they conform with the law, and make changes if they don't.
Ryan Frazier is an attorney at Kirton McConkie. You can contact him at firstname.lastname@example.org or 801-323-5933.
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