Is 'Taking a Knee' a Protected Activity Under Labor Law?
NFL players who kneel during national anthem may be engaging in protected concerted activity
Players in the National Football League (NFL) have recently drawn considerable attention for kneeling during the national anthem in protest of police violence against black Americans. Some people support the players' protest, while others, including President Donald Trump, have called for the NFL to fire players who don't stand for the anthem. However, their actions may be legally protected.
We've rounded up the latest news on the ongoing protects and how labor laws might apply. Here are SHRM Online resources and news articles from other trusted media outlets.
President Calls for Discipline
Trump has been vocal about his displeasure with NFL players who kneel during the national anthem. He has called for his supporters to boycott games and has said the NFL should discipline or fire players who don't stand. The president said the NFL should have suspended former San Francisco 49ers quarterback Colin Kaepernick first kneel in protest last season. More players joined in solidarity over time and at the start of the new season, many players have linked arms, knelt or declined to appear on the field during the anthem—some owners have even joined them. NFL Commissioner Roger Goodell said that the NFL supports player who take a stand on "critical social issues" but the current protest is "threatening to erode the unifying power of our game."
(NBC News)
Expansive Protections
The league could run into legal issues under the National Labor Relations Act (NLRA) if it fires players who protest the national anthem. The NLRA doesn't just cover union negotiations and collective bargaining agreements. The act broadly protects workers' right to engage in "protected concerted activity." The National Labor Relations Board (NLRB)—as well as courts—have found a wide range of activities to be protected, such as complaining about a manager on social media sites and publicly supporting political causes that have an effect on an employee's work life. Furthermore, a 1978 U.S. Supreme Court opinion said that workers have a right to engage in political advocacy if it's job related. Although President Barack Obama's administration broadly interpreted "protected concerted activity," experts note that the government may limit what is considered protected activity, given the conservative majority on the Supreme Court and the NLRB.
[SHRM members-only HR Q&A: What is the function of the NLRA?]
First Amendment Considerations
Freedom of speech protections under the First Amendment to the U.S. Constitution apply to speech against the government—not private employers. The NFL is a private employer; therefore, some legal experts say the national anthem protests are simply a workplace issue, not a constitutional one. The NFL's rulebook, personal conduct policy and collective bargaining agreement all spell out the conduct requirements for players. However, other legal experts say the issue may not be so straightforward. Government funds may pay for certain NFL activities, stadiums and pregame patriotic displays (like anthem performances and on-field color guard ceremonies) that are aimed at marketing to potential recruits. Some issues may come down to state law, as some states protect private employees' political speech.
Standing Not Required
Though Goodell has said he wants players to stand for the national anthem, the NFL has not made this a requirement. The league's policy states that players should stand, but the players who have knelt haven't been disciplined. The issue, as well as possible solutions to it, will be discussed at an owners' meeting in New York City next week. "The NFL is doing the hard work of trying to move from protest to progress, working to bring people together … Players from around the league will be in New York next week to meet with owners to continue our work together," Goodell said in a memo.
College Player Cut
The NFL might not be disciplining players who kneel during the national anthem, but a college football player recently was cut for doing the same. Gyree Durante, a sophomore backup quarterback for Division III Albright College in Reading, Pa., was cut for violating team rules. Unlike the NFL, the college team requires players to kneel during the coin toss and stand during the anthem to show team unity. It isn't clear why Durante was kneeling. "I was just taught you fight for what you believe in and you don't bow to anyone," Durante said to WCAU, a Philadelphia NBC News affiliate. "I believe heavily in this. So I decided to fight for it."
(International Business Times)
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