NFL No-Kneeling Compromise: Implications for the Workplace

 

Q: Can private employers limit workplace speech and activities?

A: Yes, but only if the limits do not violate other laws.

On May 23, 2018, the NFL issued a new rule that will require all players on the field to stand for the national anthem. The NFL will also impose fines to teams whose players, coaches, or staff fail to follow the new rule.  NFL Commissioner Roger Goodell stated the new rule is a compromise because it does not require players to enter onto the field for the national anthem.  If players choose to enter onto the field, however, they are required to stand for the national anthem.

The NFL rule comes after a contentious and highly publicized 2017 football season. A number of players around the league knelt during the national anthem to protest racial injustice and bring attention to this cause. In response to these protests, President Trump tweeted that players who kneel during the national anthem should be suspended or fired.  Vice President Mike Pence walked out of an Indianapolis Colts game after players knelt for the national anthem.  Several individual teams, such as the Dallas Cowboys, imposed their own sanctions against players who knelt.  Most teams did not.

The new rule illustrates how private employers, such as the NFL, may limit workplace speech and activities. Generally, an employee’s workplace speech is not protected by the First Amendment.  The First Amendment prohibits the government, not private employers, from infringing upon a person’s freedom of speech and religion.  The NFL, as a private employer, is not a government actor, and therefore cannot violate the First Amendment.  As a general matter, private employers are free to prohibit or restrict speech in the workplace about non-work topics such as politics and  social conditions outside the workplace.

That does not mean that private employers may intrude on all forms of speech by employees, however, because some workplace speech is protected by laws other than the First Amendment.  Employers may not violate these other laws when limiting workplace speech.  For example, Title VII of the Civil Rights Act of 1964, which prohibits employers from taking adverse action against an employee for being a member of a protected class such as race, also prohibits retaliating against an employee for reporting workplace discrimination based on race or other protected classfications.  Under federal labor laws, employers also cannot discipline or terminate employees for their involvement in protected “concerted activity,” such as discussing wages, employment terms or working conditions and forming a union. As a result, employers should be cautious when disciplining or terminating employees for their speech in the workplace or about working conditions.

If speech is not protected by other laws, employers can discipline or terminate employees. Employers also have an have an interest in keeping the workplace professional and efficient.  Provided it does not violate other laws, employers may terminate employees whose workplace speech is disruptive or hinders workplace performance.

Many employers wish to avoid disputes and hard feelings between employees, which often arise from differing opinions over sensitive topics, particularly in today’s charged political and social environment. Virtually all employers want to avoid having those topics spill into communications with customers and important commercial partners.   As a result, many employers choose to implement policies or rules governing workplace speech.  Private employers are free to do that, but they must be wary of the line between protected and non-protected speech.

Employers should consider implementing training for supervisors and employees discussing what speech is and is not appropriate in the workplace.   HR staff should also be aware of what speech is protected in the workplace.  Employers should consult with a labor and employment attorney if they have any questions about protections on workplace speech.

— Doris E. Baxley*

* Ms. Baxley is a 2018 summer associate in Pepper Hamilton’s Berwyn office. She is not admitted to practice law.