Can I 86 an employee who acts like a number 7?

Q.     I am a general contractor, and I just finished a building project for a local non-profit veterans group that is going to provide treatment for those who served overseas and are suffering from PTSD. My workers and I have been invited to attend the grand opening and ribbon cutting ceremony.  Because I am proud of the building, the veterans and my employees, I am requiring that my employees attend the grand opening (and of course, paying them to do so).   I am concerned that one or two of my employees will seize on the recent controversy surrounding San Francisco 49ers backup quarterback, Collin Kapernick, and embraced by other professional athletes, and refuse to stand for the national anthem.  In my opinion, this would be insulting to the veterans that the building was built to support and alienate potential developers from using my company in the future.  Can I require my employees to stand for the national anthem?  Can I terminate an employee for not standing up?

A.     I think at some point in the near future, the United States Supreme Court will answer this query for us.  But, in the meantime, an employer must tread carefully.  If an employee is terminated for refusing to observe the national anthem, he might be able to argue that the termination was unlawful.  However, it is unclear how those arguments would be received by U.S. courts at this time.

The most obvious argument would be driven by Labor Code Sections 1101 and 1102.  Labor Code section 1101 states:

“No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employee.”

Labor Code section 1102 states:

“No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”

Another employee argument may be made under the National Labor Relations Act (“NLRA”).  The NLRA gives employees the right to act together to try to improve their pay and working conditions, with or without a union.  If standing for the national anthem is determined to be a “working condition,” then employees could argue that refusing to stand is a protected “concerted activity.”

The interesting component of Labor Code Sections 1101 and 1102 is that both hinge on the term “political,” while the NLRA hinges on the term “working condition.”  Both terms are difficult to define.   Extreme positions like advocating to over-throw the government have been specifically interpreted not to be “political.”  Such an interpretation may protect an employer that terminates employees that, for example, support jihadist ideologies. But, what about an extreme domestic movement that advocates ignoring all law enforcement directions and refusing to acknowledge their authority?

Another issue to consider is whether an employee can limit the time and place of expression without infringing on an employee’s rights.  What if, instead of kneeling down during the national anthem, an employee wears a t-shirt stating “Make America Great Again” or “I’m with Her”?  Or, instead of  quietly kneeling, the employee was actually disruptive?

Employees do not have a Constitutional right to free speech or freedom of expression at work. The Constitution’s right to free speech only applies when the government is trying to restrict it. Even then, it’s not absolute. So employers are generally free to restrict employee speech, at least while they are at work.  However, an employees’ protected speech under the NLRA is an exception to an employer’s broad rights to restrict both speech and expression at work. Section 7 of the NLRA gives employees the right to discuss wages hours and working conditions and organizing a union.

Furthermore, a private employer should consider the implication of anti-discrimination laws. An employer should ask himself: Is this employee’s speech being restricted or punished because the employee is expressing religious or other beliefs that are different from the employer’s or from co-workers? Are employees of some religions or national origins allowed to express themselves regarding religion or national origin, but not others?

These are all delicate issues in a confusing time, which can make a simple grand opening and ribbon cutting ceremony a powder keg for an employer.

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