By Dawn T. Collins (Los Angeles)
With the 2017-18 National Football League (NFL) regular season and National Basketball Association (NBA) pre-season underway, many spectators are excited to don their favorite players' jerseys and cheer on their teams. Yet in recent years, many fans also find themselves equally entrenched in controversial debates that have little to do with who wins or loses the game.
Rather, these dialogues relate to the frequent media coverage over the alleged "blacklisting" of former San Francisco 49ers quarterback Colin Kaepernick after he took a knee during the national anthem last season to protest police brutality against minorities, related demonstrations held in front of the NFL's corporate offices, and actions of solidarity on football fields across the country by athletes like Marshawn Lynch and members of the Cleveland Browns virally trending with the hashtag #ImWithKap. Most recently ESPN sports host, Jemele Hill, drew the attention of the White House and placed her own employment in the cross-hairs by stating in a series of tweets that President "Donald Trump is a white supremacist who has largely surrounded himself w/ other white supremacists" and is "unqualified and unfit to [be] president," and in response, the White House press secretary called Hill's statements a "fireable offense."
As athletes and other public figures use their careers to bring awareness to social movements and other world events such as the Charlottesville tragedy, the implications of social movements on employee relations remains a hot topic that poses challenging issues for employers related to diversity, inclusion, and free speech. Here are a few of those related topics and some practical suggestions of ways employers can address these issues in the workplace:
Does the First Amendment Apply to Athletes or Employees Generally?
People often mention their First Amendment guarantees without understanding that this right is not without certain limitations, especially in the employment context. Specifically, while this protection covers federal, state, and local government employees, courts have held that First Amendment protections do not generally extend to the employees of private-sector employers.
Does Social Media Change Things?
As evidenced by legendary athletes Dale Earnhardt Jr.'s and Kareem Abdul-Jabbar's Twitter posts in response to the Charlottesville tragedy, many athletes and employees use social media to vocalize their positions on social issues. The National Labor Relations Board (NLRB) has taken on cases where employers have fired or taken disciplinary actions against employees who have engaged in certain protected speech via various social media platforms. On the agency's website, the NLRB states: "The National Labor Relations Act protects the rights of employees to act together to address conditions at work, […] [t]his protection extends to certain work-related conversations conducted on social media […]".
This raises the question: Can an employee be disciplined for making racially - or politically - charged speech via social media?
The standard that the NLRB considers is whether the employee is engaging in "protected concerted activity" involving the terms and conditions of employment. Courts have used a multi-factor assessment to determine whether discipline or discharge violates Section 8(a)(1) of the NLRA, which evaluates whether:
- the activity in which the employee was engaged was "concerted" within the meaning of Section 7 of the NLRA;
- the employer knew of the concerted nature of the employee's activity;
- the concerted activity was protected by the NLRA; and
- the discipline or discharge was motivated by the employee's protected, concerted activity.
If the employer alleges that an employee engaged in misconduct during otherwise protected activity, the NLRB generally considers four factors in determining whether speech is protected:
- the place of the discussion;
- the subject matter of the discussion;
- the nature of the employee's outburst;
- and whether the outburst was, in any way, provoked by an employer's unfair labor practice
In many instances, purely individual speech about a social or political topic that in no way involves an employee's work conditions will not be protected by the NLRA. Because of the fact-specific nature of the inquiry, a determination must be made on a case-by-case basis.
So What Now?
Even employers not covered under the First Amendment and NLRA's protections are finding themselves examining some weighty questions. For example:
Although there may be legally sanctioned limitations to free speech in the workplace, does the modern day work culture require employers to facilitate an employment experience that goes beyond what the law requires?
Are employers tasked with creating a workplace that is inclusive but also allows people to express unique (and sometimes controversial) viewpoints on social or political issues?
If so, how does this work and does it ultimately help the business to thrive long term?
Last year the NBA and the NBA's Players Association (NBPA) appeared to have answered this question in the affirmative and implemented this approach with its players. Despite having player agreements with language that can, in some cases, regulate players' conduct, NBA athletes have expressed their positions on social issues both on and off the court. For example, during pre-game warm ups LeBron James wore a t-shirt stating "I Can't Breathe," bringing awareness to the death of Eric Garner. Similarly, Carmelo Anthony and Dwyane Wade made a social action appeal during the 2016 ESPY awards.
Many players have been so outspoken that last year NBA Commissioner Adam Silver and NBPA Executive Director Michele Roberts penned a letter noting that both organizations were addressing the best ways they could move forward in "developing substantive ways . . . to come together and take meaningful action." The letter noted that, in recent weeks, many teams had reached out to the organizations to figure out how they could "create positive change" and garner support with team efforts.
Employers may want to take note of the ways that the NBA and the NBPA are attempting to address this topic. Additionally, employers may also want to review the following considerations.
Be Aware of Blacklisting Laws
Many states have blacklisting laws that, generally, prohibit employers from limiting former employees' opportunities. The following are a handful of state laws regulating blacklisting:
North Carolina law prohibits employers from preventing or attempting to prevent any "discharged employee from obtaining employment with any other person, company, or corporation" whether by verbal or written action.
The California Labor Code also prohibits any person from preventing or attempting "to prevent the former employee from obtaining employment" by misrepresentation and punishes any manager or employee who knowingly "fails to take all reasonable steps to prevent" such action.
Indiana law makes it illegal for an employer to prevent a "discharged employee from obtaining employment with any other person" or employer.
Florida law makes it illegal for two or more people to "agree, conspire, combine or confederate together for the purpose of preventing any person from procuring work . . . or to cause the discharge of any person." The law also prohibits verbal, written, or printed communication that "threaten[s] any injury to life, property or business of any person for the purpose of procuring the discharge of any worker . . . or to prevent any person from procuring work".
New York Labor Law says it is an unfair labor practice "[t]o prepare, maintain, distribute or circulate any blacklist of individuals for the purpose of preventing any of such individuals from obtaining or retaining employment because of the exercise by such individuals of any of the rights guaranteed by section seven hundred three," which discusses the right to join a labor organization or to bargain collectively.
Arizona law explicitly defines the term "blacklist" as "any understanding or agreement whereby the names of any person or persons, list of names, descriptions or other means of identification shall be spoken, written, printed or implied for the purpose of being communicated or transmitted between two or more employers of labor, or their bosses, foremen, superintendents, managers, officers or other agents, whereby the laborer is prevented or prohibited from engaging in a useful occupation. Any understanding or agreement between employers, or their bosses, foremen, superintendents, managers, officers or other agents, whether written or verbal, comes within the meaning of this section and it makes no difference whether the employers, or their bosses, foremen, superintendents, managers, officers or other agents, act individually or for some company, corporation, syndicate, partnership or society and it makes no difference whether they are employed or acting as agents for the same or different companies, corporations, syndicates, partnerships or societies."
Do not wait for your company to become the next trending hashtag on social media as a result of a workplace controversy! Instead, be prepared and take proactive measures in the event employees take a stand on controversial issues. Some options are to proactively address and be sensitive to diversity issues, and to recognize and understand the benefits of workforce diversity both as a source of varied ideas and a competitive advantage. Employers may also want to consider hiring a Chief Diversity and Inclusion Officer or diversity and inclusion team responsible for addressing equity issues.
Consider reviewing your employee handbooks, in addition to contracts you might have with individual employees (or athletes) and third parties to ensure your company's policies regarding diversity and inclusion, nondiscrimination and harassment, and professional development are up to date. Employers may also want to consider evaluating successes and areas for growth in the following areas:
- the recruitment, hiring, promotion, and advancement of diverse employees;
- the availability of alternative work schedules for working parents;
- the evaluation of salaries and compensation levels of all employees in terms of current pay equity principles; and
- the stemming attrition rates of diverse employees.
Finally, employers may want to examine records to determine whether all employees, especially management employees, have participated in appropriate diversity and inclusion trainings, particularly on implicit or unconscious bias.
Employer-created bans on any socially- or politically-related speech rarely if ever actually work and may create exposure to liability under the First Amendment, the NLRA, or state-specific laws. Rather than imposing an outright ban on certain conduct, employers may want to slow down and engage in careful thought at the outset prior to taking any action on behalf of the organization. Employers may also find it beneficial to acknowledge that what happens in the world impacts the workplace. Accordingly, employers may want to develop affinity or employee resource groups, and/or maintain a diversity committee that facilitates well-thought-out inclusion initiatives. With many issues at play from reducing the risk of unlawful discrimination charges to preventing social media reputational harm, planning ahead may help to avoid potential risks.