Stand and Deliver: New NFL Anthem Rule and Employee Speech

The new National Anthem rule put in place by NFL owners last week has brought the question of speech in the workplace back into focus.

The rule requires players to be on the field and standing during the National Anthem.  An opt-out provision allows players to stay in the locker room or other off-field location during the Anthem if they choose. 

The rule stems from pressure on the league to limit player protests.  Many of the players argue kneeling or other forms of protest during the National Anthem are political speech protected by the First Amendment. 

At first glance, this might seem like a straightforward workplace issue.  The players are employees of a private employer.  Their workplaces are governed by their employers’ rules of conduct.  A private employer can set workplace behavior rules, and employees agree to those rules when they work for the employer.  (Workplace rules in the NFL are also subject to the players’ collective bargaining agreement, their own individual contracts, and contract law in general.)  In contrast, the First Amendment, as mentioned in connection to this issue, generally applies to government interference with speech or to government employees.  Because the NFL teams are private employers, some might argue the First Amendment does not apply in this case.

Workplace speech, however, is a more complicated issue than simply private vs. public employer.  True, a private employer can limit some forms of speech in a job.  For example, employers have rules prohibiting speech that is harassing or discriminatory.  However, speech that’s political might be protected under federal or state law.  As an example, in California, employers are expressly prohibited from making, adopting, or enforcing any rules or policies that forbid employees from participating in political activities, or controlling or directing employees’ political activities or affiliations. 

Many of the NFL players have argued their National Anthem-related activities are political and therefore protected under state law.  Players have also argued comments by President Trump have brought government involvement into the dispute, thus triggering First Amendment protection.

While these issues play out on and off the field, non-NFL employers should also keep some employee speech issues in mind.  As previously noted, employers can have employee conduct rules that limit speech, including harassment and anti-discrimination policies.  Some political speech for private employees may also be limited at work, if the speech interferes with the performance of the employee’s job or significantly disrupts the employer’s business.

Another area for employers to consider is speech that’s considered concerted, protected activity under the National Labor Relations Act (NLRA).  The law allows employees to discuss wages, hours, working conditions, and union organizing.  A number of states also have rules allowing employees to disclose their compensation to others, including coworkers.

Policies addressing employee speech at work continue to be a hot topic.  The issue is complex and nuanced, with a number of rules coming into play under federal and state law.  Contact myHRcounsel for assistance in navigating this issue.