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Employee Political Behavior:
What to Do if Your Employee Takes a Knee while the
National Anthem
is Being Played
Recently the news has been inundated with reports of National
Football League players kneeling during the playing of the National
Anthem. I am sure that you have heard arguments on both sides
of this issue. Some agree with the players, others do not. Some
have called for the firing of the players while others have said
that it their right under the First Amendment. So, let’s
try to distinguish truth from fiction, from a Human Resources
standpoint.
First, let’s take a look at the issue of free speech in
the workplace. Employees in the public sector – those who
work for governmental entities – have First Amendment rights
as employees, subject to certain restrictions. The case law that
has developed over time regarding First Amendment rights in the
workplace has come from this group, as the government is directly
affecting employees in public sector cases. However, for individuals
who are employed in private sector organizations, there are no
freedom of speech protections under the First Amendment. Since
the NFL is a private sector employer, players are not protected
by the First Amendment, as it relates to their employment.
Secondly, consider consequences. South Carolina, like many other
states, is often referred to as an “employment at will” state.
What this essentially means is that an employer may hire or fire
an employee at any time, for any reason as long as that reason
does not violate State or Federal law. Specifically, an employer
may not make any employment decisions based on an employee’s
age, race, sex, religion, pregnancy, national origin, disability,
or genetics. While, to the best of my knowledge, there is no
Federal law which prohibits a private sector employer from terminating
an employee because of his/her political opinions or actions,
there are state laws which apply.
South Carolina has a law which creates another exception to
the employment at will rule:
“It is unlawful for a person to assault or intimidate a
citizen, discharge a citizen from employment or occupation, or
eject a citizen from a rented home, land or other property because
of political opinions or the exercise of political rights and
privileges guaranteed to every citizen by the Constitution and
laws of the United States or by the Constitution and laws of
this State. A person who violates the provisions of this section
is guilty of a misdemeanor and, upon conviction must be fined
not more than one thousand dollars or imprisoned not more than
two years, or both.” (South Carolina code 16-17-560)
Other States have similar laws. For instance, California, Colorado,
Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, Utah,
West Virginia, Seattle (Washington), and Madison (Wisconsin),
prohibit employers from retaliating against employees for engaging
in “political activities”. Illinois, New York and
Washington prohibit employers from discriminating against employees
for election related speech and other political activities. Colorado,
North Dakota and Utah prohibit discrimination based on “lawful
conduct outside of work”. (The preceding is not an all
inclusive list of states or cities which prohibit private sector
employers from disciplining or terminating employees based on
their political opinions or actions.)
If any employer would like to terminate an employee based on
that individual’s political opinions or actions, it would
behoove the employer to first check the laws of his/her state
before taking any actions.
A company’s best defense against the potential expense
and aggravation related to federal or state law violations is
to proactively review and revise as needed their Human Resources
policies, handbooks, hiring procedures, compensation, benefits,
training programs, communications tools and other functions.
The professionals of PHHR are ready to assist your organization
maintain compliance with the latest state and federal mandates.
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Paul Hilton is a certified Human Resources Consultant, located in
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