aCCoMModaTing
Taking
a knee To pregnanCY-relaTed
Free speeCH in THe workplaCe
liMiTaTions
labor & Employment law Section
Continued from page 46
which is protected by federal and
state labor laws.
Many employers are not sure
where they can draw the line.
For example, the Dallas Cowboys
recently faced an unfair labor
practice charge because their
owner, Jerry Jones, told players
that they may no longer take a
knee during the national anthem
to protest political or social issues.
Even though Jones did not threaten
termination, he nonetheless made
it clear that he would take adverse
action against his players — i.e.,
benching them — if they did not
stand during the national anthem.
Jones’ actions made national
headlines and prompted Local 100
of the United Labor Unions to file
an unfair labor practice charge
against the Cowboys with the
National Labor Relations Board
(NLRB), claiming the threat to
bench players chilled protected
concerted activity. But Local 100
withdrew the charge because, in
order to succeed, the Cowboys
players would have been required
to show that they kneel during
the national anthem to protest
the terms and conditions of their
employment, rather than the
ongoing political and social issues
relating to the treatment of African
Americans by law enforcement,
which issues have permeated the
news since at least mid-2016.
Jones’ actions and Local 100’s
response raise a critical issue:
what are the limits on employees
exercising their right to engage in
concerted activity by engaging in
controversial, unpopular, or even
profane speech? In Nat’l Labor
Relations Bd. v. Pier Sixty, LLC,
855 F.3d 115, 117 (2d Cir. 2017),
the Second Circuit provided
employees substantial leeway to
engage in such speech. In Pier
Sixty, an employee on break posted
a profanity-laced rant on social
media regarding his boss and
his boss’ mother. Because the
employee inserted the words
“Vote YES for the UNION” in the
same post, the Second Circuit held
that the employee’s termination
for making the post constituted
an unfair labor practice. While
Pier Sixty does not support the
conclusion that an employee may
immediately take to social media
to berate his or her boss or boss’
family, or otherwise disrupt the
workplace with such speech, it does
show the broad deference courts
give the NLRB in protecting an
employee’s right to engage in
concerted activity.
In today’s divisive political
climate, labor and employment law
practitioners, as well as in-house
counsel, should ensure that their
clients or
employers are
well-versed in
these matters
to avoid taking
a knee to
unprotected
speech.
Authors:
Gregory A.
Hearing &
Matthew A.
Bowles –
Thompson,
Sizemore,
Gonzalez &
Hearing, P.A.
MAR - APR 2019
|
HCBA LAWYER
47