You (Probably) Can’t Legally Fire Employees for Taking a Knee

Debra Franklin Human Resources, News Leave a Comment

Everybody’s talking about the NFL, and it has nothing to do with football! Despite popular opinion, fueled by media misinformation, it also has nothing to do with free speech or the First Amendment.

This weekend’s festivities started on Saturday when President Trump, who was campaigning for a Republican Senate candidate in Alabama, called upon NFL owners to fire players who take a knee as an expression of protest during the national anthem. He followed up with a tweet that went viral the following day, demanding that those who kneel be fired or suspended.

The President’s comments and demands led to a huge reaction, as nearly every NFL team responded with some form of protest, ranging from players taking a knee during the national anthem to linking arms and standing during the anthem, to staying in the locker room during the playing of the national anthem. Even Cowboy’s owner Jerry Jones, who had previously said he would not have players on his team who kneel during the playing of the national anthem, took a knee in solidarity with his team prior to the anthem being played last night.

Social and conventional media has exploded over this issue, and much of the commentary has ranged from the incredible to the outrageous. Let’s take a look at this from a legal perspective.

Would firing NFL players for taking a knee violate the First Amendment?

Not even close! The First Amendment applies to public/government employment, and does not protect the rights of employees in private sector jobs, such as professional football players. Private sector employees have absolutely no right to free speech at work, or even off the job. BUT…

Firing NFL players for taking a knee would probably violate the National Labor Relations Act.

Over the last several years, the National Labor Relations Board (NLRB) has vastly expanded the definition of what constitutes “protected concerted activity” within the meaning of the National Labor Relations Act, regardless of whether or not the employees are unionized. According to the NLRB, this means that “protected concerted activity” would include allowing employees to “take action for their mutual aid or protection” regarding terms and conditions of employment. Protesting on the sidelines arguably falls within that definition. Even a tangential relationship to the workplace has been found to meet the broad standards applied by the NLRB. And the NFL collective bargaining agreement, which limits concerted activity, doesn’t go so far as to prohibit these sideline protests, since they don’t interfere with the operations of the NFL or any of its member Clubs.

This isn’t “The Apprentice”, and President Trump, no matter how offended he (and others) may be by those engaging in protests on sidelines throughout our country, can’t simply say: “You’re fired”. Calling for players to lose their jobs over these protests is nothing more than an empty threat.

Stay tuned to see what happens next!

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