Wednesday, October 18, 2017

Legal Protection for NFL Protests? Not So Fast . . . .

Ben Sachs and Noah Zatz have an op-ed in the New York Times today arguing that they believe that the NFL players' national anthem protests are protected under various legal theories, mirroring some of their early writings that Rick posted about recently. With respect to Ben & Noah, I think their conclusion that "[s]tifling the protests would be illegal" misses the mark. 

The op-ed lays out three theories for protection: state action that results in First Amendment protection for the players; Title VII's anti-retaliation provision; and the NLRA's Section 7/Section 8(a)(1). Although I'm supportive of the players and would love to see changes in the law that would protect this type of activity, given the current state of affairs, I don't think any of these theories will work.

First, while I'm no constitutional scholar and am prepared to be corrected, I don't see any state action here. Even with the President's statement a few hours ago, I'm not seeing the level of coercion or control that is usually required for state action. That could come if the President ramps up the pressure, but it doesn't appear to be at that level now.

Second, I also didn't see the nexus to employment that is required for coverage by Title VII and the NLRA. One point on which we agree is that this nexus might exist if the players are protesting their treatment as players/employees, such as opposition to calls for their termination or discipline. But that doesn't seem to be their motivation. Colin Kaepernick started this movement by kneeling in protest police brutality and social injustice (see, e.g., here and here). The recent spread to other players following Charlottesville and other events have appeared to mirror these concerns, rather than focus on players' employment concerns. That could change at some point (although risk more criticism of "spoiled, rich players"), but until it does, I'm unaware of case law that interprets these type of societal concerns as protected activity under Title VII or NLRA. And I don't think the Trump NLRB or most courts would conclude otherwise.

Finally, I worry that painting an overly rosy picture of employment law protections has risks. As we all know, most employees already think they enjoy far more workplace protections than they actually do. Reasonable minds can differ on strategies to address this issue, but I've always taken the opportunity to shine as much light on the actual state of the law. I want workers to know the limitations of the law and the risks involved in their actions so they can seek employers that provide more protection or at least have better reputations. Or, heaven forbid, actually push for legal reforms or a union that can negotiate protections.

-Jeff Hirsch

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I agree with Jeff. I don't think an 8(a)(1) charge filed on this theory would be around long (assuming it was not promptly deferred).

Posted by: Michael C Duff | Oct 19, 2017 2:18:33 AM

Thanks for the engagement, Jeff. It seems that the key factual question is whether the observable spike in protest activity immediately following the President’s call for players to be fired, and accompanied both by shows of solidarity among players and public statements specifically rejecting the President’s calls (including their racial connotations), in fact had little to do with the call for players to be fired and the prospect that it might be heeded in some material fashion. That seems implausible to me, though I agree that it is compatible with an intention also to affirm the original meaning of the protests.

Posted by: Noah Zatz | Oct 19, 2017 6:50:29 AM

One nexus to employment is that the players are refusing to take an action that the employer has requested, but not required, that they take while on the job -- i.e. stand for the anthem. How is this different from a concerted refusal to perform voluntary overtime? Looked at in that light, it doesn't matter what the players' individual motivations for their actions are.

Posted by: Andrew Strom | Oct 19, 2017 9:35:58 AM

Thanks for the comments Andrew & Noah.

Andrew, I'm a bit confused by your analogy. Are you saying that all concerted refusals to comply with a work-related request are protected by Section 7, no matter the reason? For instance, if an employer last year fired a group of workers who refused an employer request to recite the pledge of allegiance because they objected to Obama being president, you'd say that violated Section 8(a)(1)? And, Noah, we obviously agree on a key factual issue, but we'll have to agree to disagree on the interpretation of what's going on. I don't pretend that I've tracked everything all the players have been saying, but based on what I have read, the focus seems to be almost entirely on social issues, not the players' work conditions.

Posted by: Jeff Hirsch | Oct 19, 2017 10:42:06 AM

I tend to agree with Jeff on this. It is difficult to see how this protest, which seems to be focused on social issues of police brutality, falls under Section 7’s broad but limited umbrella. The immigration protests starting in 2006 are much easier to fit under protected concerted activity given the clear link to immigration policies and work. There just does not seem to be that link here. And, the era of reading Section 7 ever more broadly is likely at an end, at least for now.

The other issue that does not get much attention is the potential that the protest could be viewed as an unprotected partial strike. I know the NFL has come out to say that it will not require, as a matter of league policy, that players stand. However, what would prevent an owner (I’m looking at you Jerry Jones) from requiring as part of the job as a player to stand at attention during the national anthem. If that is a job requirement, the players’ choice to selectively refuse to perform one particular job duty could easily be viewed as a partial strike under Elk Lumber.

The protests should really be viewed as an example of how thin and uncertain employee’s rights in this area are. And, what should not be lost is that a professional football player with unique and highly marketable skills will find more protection as a matter of employer tolerance and acquiesce than your average worker viewed as fungible and easily replaced. Given that, the Kaepernick saga should serve as a clear example of just how little protections average workers enjoy.

Posted by: Joe Mastrosimone | Oct 19, 2017 12:22:39 PM

I've only seen the issue come up in the context of voluntary overtime, but I can't see any logical reason why the analysis would be different for voluntary extra tasks during the regular work day. Workers are protected when they engage in a concerted refusal to perform voluntary work, and when they do so, the Board doesn't look to their motivation. So yes, in the hypothetical regarding a concerted refusal to say the pledge while President Obama was in office, I would give the same answer. Coincidentally, I will be addressing the partial strike issue in a post that will be on the OnLabor blog tomorrow.

Posted by: Andrew Strom | Oct 19, 2017 2:08:31 PM

"Where an action is voluntary, the concerted refusal by employees to perform that action is a protected concerted activity...." Riverside Cement Co., 296 NLRB 840, 841 (1989)(finding that employees' refusal to continue voluntarily bringing their own tools to work was protected).

Posted by: Andrew Strom | Oct 19, 2017 2:17:21 PM

Andrew, do you mind posting some cites for those involuntary overtime cases? I don’t mean that in a snarky way—I’m genuinely curious, as your position seems to take the phrase “for the PURPOSE of collective bargaining or other mutual aid or protection” out of Section 7. Also, while I haven’t thoroughly researched this issue, the only refusal to work involuntary overtime cases I’m aware of involved refusals that were part of a labor dispute. That was also the case with Riverside, in which the unionized employees began refusing to bring their own tools as part of a “work to rule” negotiating tactic. In response to that negotiating tactic, the employer promulgated a new rule requiring employees to bring personal tools; the employees still refused and many were disciplined. The Board found that the new rule and the discipline violated Section 8(a)(3) and 8(a)(1). Also, the employer’s announcement of the rule to its supervisors made it clear that the new rule was mandatory, despite a hilarious final sentence denying the rest of the announcement: “Tools which have been provided by the employees as a matter of past practice will be required as a condition to work. An employee who refuses to provide his historically normal complement of tools is to be instructed that we have no work available. No tools, no work. Go home! Don't come back without your tools. Be sure to point out that this action is not disciplinary in nature.” In short, Riverside involved the discipline of employees who were objecting to an unlawful new work rule.

Posted by: Jeff Hirsch | Oct 19, 2017 6:20:30 PM

Isn't a rule that players can't kneel during the anthem an overbroad work rule under Lutheran Heritage Village? Even if they aren't currently kneeling to protest terms and conditions of employment, players would reasonably construe such a rule to prohibit such an action. But perhaps I'm missing something here.

Posted by: G. Hayden | Oct 24, 2017 7:53:45 AM

G. Hayden: that's a good point, although I think that if the players are just focusing on social issues, a new rule would be seen as a reaction to that rather than an attempt to squelch Section 7 conduct. And even if I'm wrong about that, I fear that a no-kneeling rule would be ruled as a legitimate work rule; not that I'd advocate for that position, but if I had to bet on an outcome before the current NLRB, that's where my money would go.

Posted by: Jeff Hirsch | Oct 24, 2017 12:05:59 PM

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