Protected or Not Protected: That is the Question Protected or Not Protected: That is the Question

Protected or Not Protected: That is the Question

A public debate over personal values has been initiated as a result of behavior by professional athletes and, in some instances, student athletes during the playing of our national anthem at sporting events. This behavior has also triggered the question of whether such conduct is legally protected. This article will not attempt to evaluate the merits of personal concerns being raised by the behavior. Rather, the article will discuss whether such conduct, if engaged in by professional and/or student athletes, is legally protected under certain circumstances.
Initially, it is important to attempt to determine the underlying purpose or motive for the action and the type of employer and/or educational institution affected by these actions at sporting events. Generally, First Amendment U.S. Constitutional rights only apply where there is a public/government institution involved, such as a public school or state university. (This article will not delve into potential rights created by private institutions receiving public funding.)  Typically, private employers are not directly covered by First Amendment rights, such as free speech or other constitutionally-protected forms of expression. However, the National Labor Relations Act (“NLRA”) protects private-sector employees who engage in a type of behavior described as protected concerted activity where it pertains to wages, hours, and terms and conditions of their employment affecting themselves and others. 
Accordingly, to analyze the range of protections discussed above, we should attempt to determine if employees or students at a public institution are constitutionally protected under the First Amendment when, for example, they kneel when the national anthem is being played at a sporting event. Additionally, as managers and administrators in the private sector, it is important to try to understand whether such behavior by employees constitutes protected and concerted activity pertaining to the workplace under the NLRA. 
We are, therefore, obligated to address the legality of this action and the appropriate response to this action under both circumstances. In the private sector, legal considerations should be evaluated when employees, such as professional athletes, engage in the type of behavior referenced above. Whether the law protects these employees, requires a determination as to whether their concerted behavior on behalf of themselves and others is directed, at least in part, towards their work environment rather than just constituting a response to general concerns outside the workplace. Also, some behavior, such as burning down a stadium in protest, is not protected under the Constitution as applied to public entitles or under the NLRA for private-sector employees.
Kneeling as a form of protest, under many circumstances, may be lawful as protected activity depending upon the purpose and intent of the behavior. The challenge relating to the recent actions at sporting events is that it is apparently a silent protest as no specific words appear to contemporaneously accompany the action. Hence, we can only speculate about its intent or motivation by hearing comments made afterwards by those involved in kneeling or standing together during the playing of the national anthem. If it can be determined that such concerted or mutual action was motivated by objections to working conditions, it may be protected concerted activity as defined under the NLRA. However, that requires a detailed legal analysis by legal counsel, a government agency, or a court after a detailed review of the specific facts relating to the players’ actions. 
If the conduct described above is engaged in at a public institution, such as a state university or public high school, before an administration takes action against those who are demonstrating, an analysis should be undertaken to determine if the actions are protected as free or protected speech or expression under the First Amendment of the United States Constitution.  Our courts have grappled with these issues since the formation of our great nation.
The bottom line is that managerial and supervisory representatives of a private-sector employer (which includes owners) or a public institution concerned about student athletes or other employees engaging in the type of behavior previously discussed, should take a deep breath and properly analyze and investigate the employer’s or public institution’s legal options and limitations. The direction taken by employers and administrators will not only be affected by the law but by other external considerations, which impact what, if any, action should be taken in support of or in opposition to the actions of those employees and students engaged in such behavior. The answer to such questions is rarely crystal clear.

For more information, contact Bob Weisman or another member of our Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
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