What to do, what to do….
San Francisco 49’ers player Colin Kaepernick’s decision not to stand for the National Anthem has stirred up a lot of emotion on both sides of the issue. There are those who are vilifying him, and those who are praising him. Much of this debate centers on his right to expression of free speech. Let’s look at this from an employment/HR standpoint (what, you expected something different?).
Yes, we all have a right to our opinions and in many cases; we have the right to express those opinions – publicly. However, a point that I think is being missed in this mess is that this right does not extend to a private workplace. Nope, sorry. It doesn’t. When a person is working for a private company, the First Amendment simply doesn’t apply.
The First Amendment limits only the government’s ability to suppress your speech. Courts have extended this prohibition (in most cases) to all federal, state, and local government officials but have consistently emphasized that the First Amendment’s constraints do not apply to private-sector employers. There have also been several court cases where even public sector employees were found to have been disciplined appropriately and legally for statements they made that were found to be disruptive damaging to the employment relationship or the reputation of the employer.
The 49’ers (or the NFL) could punish Kaepernick if his conduct violated an organizational policy or expectation, and/or caused disruption or put the organization in a negative light. Now, the NFL has already come out and said that players are encouraged to stand during the National Anthem, but are not required. The 49’ers have essentially said the same thing, albeit in a slightly different way: "we recognize the right of an individual to choose to participate, or not, in our celebration of the national anthem." Although, I think their reasoning is a bit flawed, seeming that they think his right extends to the workplace.
If you work for a private employer, or if you are a private employer, you need to know that employees are free to say and do whatever they want. However, they are not free from the potential consequences of that behavior if the employer finds it warranted.
What should the 49’ers have done? Again, no lack of opinion there. Personally, even though their statement was factually incorrect, I think the probable intent behind the statement was more considered. Taking a "wait and see" approach on such a hot-button issue may be the better route at this point. Simply said, just because you can do something does not mean you should.
This may very well die down on its own. Or, if the reaction to his protest – by fans (who buy the tickets), sponsors and advertisers - becomes too disruptive to the team or the whole of the NFL, they may change their mind and decide to exert a bit more control. In other words, it might be a good idea to let the market decide!
Want more info on this topic? Check out these links:
Njlawblog – This interestingly enough, has a slight NFL tie-in.
Workforce.com – great article by employment law attorney Jon Hyman – dealing primarily with employees, free speech and social media, but still on point.