From sports and entertainment to politics and social justice—when worlds collide in your workplace

September 19, 2016 0 COMMENTS

It’s everywhere. Whether you like it or not, you can’t escape it. While the topics of politics and social justice are undoubtedly important discussions to have in our country, the reality is that they now seem ever present. Consider, for example, two popular entertainment outlets many individuals usually go to in order to “escape” from their daily routines: sports and television.  protesting with different opinions

Within the sports realm, and with apologies to the other sports, there is no question that the return of the NFL season garnered the most anticipation the last couple weeks. Yet the biggest story wasn’t necessarily the play on the field. Instead, it was San Francisco 49ers quarterback Colin Kaepernick’s decision to kneel for the national anthem as a demonstration of protest against racial inequality and oppression in this country. A number of other NFL players subsequently joined in the protest in their own way, as did athletes from other sports, most notably in the news was U.S. soccer star Megan Rapinoe.

Everyone had an opinion, some in support of the protests and some who were critical. And I mean everyone. Not only were athletes, sports owners and executives, and sports analysts providing their take, but national political pundits and personalities were speaking out. Heck, even the President of the United States was asked by reporters to weigh in with his opinion and did so. The NFL was no longer just a sports story, but now had become a national news story.

The world of television is no different. The 2016 Emmy Awards were televised last night, a ceremony meant to reward the best of television from the past year. Yet, whether it was the introductory skit (featuring Jeb Bush, who you have to admit was kind of funny), Jimmy Kimmel’s opening monologue, or various acceptance speeches throughout the night, politics was a major theme of the evening. To be more specific, the subtleand in many cases, not so subtledigs at Donald Trump were a recurring event. Even if you didn’t watch the Emmys, just reading on the internet what happened last night will make clear that political opinions were not in short supply.

Look, this is of course not new or without precedent. There is a long history of athletes and entertainers speaking out, and in some cases protesting, publicly for civil rights and against social injustices that goes back many decades. There is similarly a long history of people in the public eye, including athletes and entertainers, publicly supporting specific candidates or decrying other candidates.

But doesn’t it seem like this year is a bit different of a political climate? I was not alive during the Civil Rights Movement of the 1960s and am not comparing this year to the dissension and discussion created by other historical events of similar importance. However, I think that most people would agree that in terms of recent history, this election year in particular has created an emotionally charged debate regarding politics and social issues that has become more prevalent than in recent years past. While this certainly has a lot to do with the evolving media coverage and social media access people have, there is no question it has more to do with the two major candidates running for president and the polarizing opinions that surround both individuals.

The fact that opinions related to politics and social justice have become more transparent in the world of sports and television is simply a reflection of how important these issues have become to our country and individuals in general, particularly in this election year. As a result, there is no surprise that individuals are having these conversations more frequently: in their homes with family, with friends at public places, and also within the workplace with coworkers and colleagues.

It is important for employers to understand this dynamic, not only for this year but for the years that follow. Disagreements among employees can have a negative impact upon employee morale, working relationships, and productivity. Therefore, employers must seriously consider whether their workplace is one that would benefit from policies that seek to limit this type of discussion in the workplace, or to prohibit the use of company property, resources, and time to pursue political endeavors or activities.

However, instituting such a policy is not without its risks. While the First Amendment doesn’t necessarily have application within the private sector, there are state laws that exist which prohibit employers from retaliating against employees for certain types of political activity. In addition, the National Labor Relations Act, which applies to unionized and nonunionized employees, prohibits employers from restricting employees’ rights to engage in concerted activity, including with respect to labor, working conditions, and mutual aid or protection. Therefore, any workplace restriction must be specifically tailored, worded and implemented in a way that would not appear to infringe on the aforementioned rights. There can be a host of other additional issues for employers, depending upon applicable state law or if a collective bargaining agreement is at issue.

At the end of the day, while there are laws that limit the extent to which employers can institute policies governing political speech at work, companies may impose certain reasonable restrictions should they believe it is of benefit to the workplace. Of course, companies may also determine that they don’t want to insert any type of restriction whatsoever within the workplace, due to the type of environment and culture that exists, or due to other factors. Whatever an employer decides to do, the most important thing is to evaluate your options, gather the facts, understand what the issues are on both sides, and decide what is best for your institution.

Think of it as being similar to the process for voting for a candidate. Evaluate your options, gather the facts, understand the issues each candidate stands for and then make your decision. The only difference being when determining the best course of action for your company with respect to policies and procedures compliant with federal and state law, I would recommend you consult an attorney at some point in the process. When it comes to selecting a candidate for president however, no need to consult an attorney, or even the opinions of athletes or television personalities. Make your decision your own. But, if you truly want my legal advice on the matter, I can tell you that I’m voting for ____________.

Did you really think I’d tell you? Didn’t I just get through saying this is an emotionally charged election? Besides, the person I anticipate voting for today may not be the person I vote for on November 8. In light of the events of this election year, who knows what can happen in the next month and a half. Nothing would surprise me.

Cooling hot political buttons

May 27, 2016 0 COMMENTS

During every political campaign, I am reminded of the notion that if we speak about our co-workers or subordinates in the manner in which the American voter speaks about political candidates, we should expect some remediation by our superiors or human resources. For example, if we question the legitimacy of an employee’s birth certificate, criticize an employee’s middle name because it is the same as the first name of a known terrorist, or question whether we are ready for a female boss or whether an applicant for employment is “too old,” we might notice an increase in administrative charges or lawsuits.  The Words Coming Out of My Mouth

Love him or hate him, Donald Trump’s election rhetoric, both in the news and in social media, has us wondering what he will say next. In the work world, human resources professionals and employment lawyers alike spend countless hours developing appropriate harassment/discrimination policies and training their workforces to prevent harassment in the workplace on the basis of any protected characteristic.

What would happen if Trump was an employee and used his very own rhetoric at work? Referring to an employee as a “piece of a – -” or to persons of certain nationalities as “rapists and criminals,” imitating disabled persons, or comparing his fingers to … well, something else … would send him into his very own “Trump Boardroom.” Despite its apparent presence at the political podium, this conduct has no place at work, and proper training and corrective remedial action are key to avoiding discrimination and harassment claims.

But what if employees speak about Trump’s polarizing policies at work? Can you have a rule that outlaws all political speech in the workplace regardless of the speech? Although controversial, chilling political speech, even in the workplace, could have certain First Amendment consequences. Distilled to its very essence, the First Amendment limits Congress’ and states’ rights to pass laws abridging the freedom of speech. This right has been extended to public-sector employees. Therefore, federal, state, or local government employees may not suffer any retaliation for speaking out about matters of public concern.

As a private-sector employer, you might believe that the First Amendment has no relevance to your workplace. You might believe that you can fire Trump or Hillary supporters just because they are Trump or Hillary supporters, even if they support their preferred candidate during their free time. You might believe that you can fire employees for discussing their political beliefs at work. You might be wrong.

Many states prohibit private-sector employers from retaliating against employees for legal off-duty activities, which includes political activity. Some states, like Connecticut, codified the First Amendment in a statute and made the First Amendment applicable to all private-sector employees. Therefore, in Connecticut, employees cannot suffer adverse action for engaging in rights protected by the First Amendment, including speaking out on matters of public concern in the workplace.

Finally, in the unionized setting, where collective bargaining agreements contain “just cause” provisions, disciplining employees for speaking out about their favorite political candidates or about their political views would not rise to the level of “just cause” under the “Seven Tests of Just Cause” or any test of just cause.

Despite certain First Amendment rights, employers should still control harassing speech, as political correctness at the workplace still trumps political talk.

 

A horse with no claim

October 04, 2013 0 COMMENTS

Some colorful (ahem) corners of the Internet were abuzz this week after a report surfaced that an anonymous adult male fan of the cartoon show My Little Pony: Friendship is Magic was fired from his job after admitting his fandom to his coworkers. The firing of this “brony” (and let’s just assume for the sake of this post the story is true) prompted questions about the limits of employee workplace protections. Did this man’s termination violate his right to free expression?  Answered simply, no. This episode is a useful reminder of the limits of constitutional protections in the private-sector workplace and the viability of at-will employment.  

The First Amendment guarantees that our rights to freedom of speech and expression are shielded from state action. Private sector employers, however, are not state actors. A 2007 federal district court decision unambiguously held that “the protections guaranteed by the First Amendment of the U.S. Constitution don’t extend to private-sector employees.” Simple, right? Well, maybe not always. Employers should be aware that some states have their own laws or provisions in their state constitutions that transpose First Amendment-like protections into private workplaces.

A number of states have passed laws protecting employees from discrimination based on their political actions or beliefs. For example, the California Labor Code prohibits an employer from controlling an employee’s political activities or taking any action that would restrict an employee’s ability to be a candidate for office. A Connecticut statute bars discrimination against any employee for “exercise … of rights guaranteed by the First Amendment,” although that statute has been interpreted to protect employees who speak out on a matter of public concern. A 1983 decision from the U.S. Court of Appeals for the Third Circuit pointed to language in the Pennsylvania state constitution that said “every man may speak freely” and held that the termination of an employee for refusing to engage in certain political activities implicated important public policy considerations derived from either the First Amendment or the state constitution. But no subsequent case has gone this far, and it remains safe to assume that the First Amendment itself doesn’t apply to private-sector workplaces.

So, to all those bronies out there, keep reaching for that rainbow. Just not at work. That’s creepy.  And it might get you fired. And there won’t be much you can do about it.