Over the weekend, President Trump's use of one of his favorite phrases – a variation of “You're Fired!” – set off a (potentially unexpected) outpouring of support for Colin Kaepernick and other NFL players who have knelt during the National Anthem to bring awareness to issues of racial inequality, police brutality and criminal justice reform. We say unexpected because, prior to this weekend, it felt like individuals were hesitant to voice their support of Kaepernick because his message had been intentionally misunderstood and perverted to be anti-flag, military and national anthem. In reality, his protest has nothing to do with disrespect for the flag or the military (indeed, the military fights for and the flag is a symbol of our freedom to protest). Instead, it has everything to do with the simple concept that, as a country, we need to address the fact that black Americans are statistically disproportionately unable to survive an encounter with the police. You can read more on that here.
(Personal note: It seems like it should go without saying that supporting Kaepernick and supporting the police are not mutually exclusive. But we seem to be living in a very black and white world where there isn't much room for nuance. Not only do we have family who serve as police officers and firefighters, but we represent these individuals, as well as veterans, in personal injury matters and in employment cases where they have been treated unfairly at work and because of disabilities incurred in the line of duty. To us, this protest is not about a lack of respect for these institutions. It's about the right of the historically disenfranchised to peacefully speak out and the obligation on all of us to recognize areas where we can do better.).
Now back to President Trump's “Your Fired!” What if instead of the support we saw from the NFL, the owners instead actually fired players who take a knee? (We note that the NFL may not be the best example of a private workplace because the players have a union and are covered by a collective bargaining agreement - so it's possible they may not be treated quite the same as non-unionized private employees).
We've written previously about whether private employees are protected in the workplace when their employer disagrees with their political views. For the most part, the answer is no. In the same vein, there is also no “freedom of speech” in the private workplace. So even peaceful demonstrators can be fired for exercising their First Amendment rights. Case in point: Kaepernick is currently unemployed. We've written about that in the context of demonstrations related to the Women's March. Participating in a hate rally, like in Charlotesville, VA, could potentially get you fired from both private and public (where there is some First Amendment protection) employment.
So, the short answer is that you probably can be fired for participating in a peaceful protest. When can employers get themselves in trouble? When individuals are treated unequally, there is an opening to make a claim for discrimination. So, if a black employee is fired for participating in a peaceful demonstration, but white employees who have done the same are not. Or if a black player takes a knee and is fired, but white players take action that is equally or more disruptive or allegedly disrespectful without consequences.
When can employers get themselves in trouble? When individuals are treated unequally, there is an opening to make a claim for discrimination.
But what if it's the President who is influencing the employment decision? Well, under some circumstances (not really present here), that is a crime:
18 U.S.C.A. § 227
Wrongfully influencing a private entity's employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch
(a) Whoever, being a covered government person, with the intent to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity--
(1) takes or withholds, or offers or threatens to take or withhold, an official act, or
(2) influences, or offers or threatens to influence, the official act of another, shall be fined under this title or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
Here, President Trump's comments likely would not fall under the “solely on the basis of partisan political affiliation” nor the “takes or withholds. . . an official act” provisions.
If you believe you have been terminated for engaging in political activity, peaceful protest or because of your race or other protected status, give us a call. We would be happy to help you determine whether you have a claim and how best to move forward.