Human Resources News & Insights

Could you legally fire Colin Kaepernick if he worked for you?

San Francisco 49ers quarterback Colin Kaepernick has made a lot of waves for not standing during national anthem performances. And it has led a lot of employers to ask: Can workers who engage in such political protests be punished? Here’s the answer. 

If you’re a private employer, you can punish workers for engaging in protests similar to Kaepernick’s if the protests violate an organizational rule or expectation, and/or causes a disruption in the business, or paints the organization in a negative light.

As attorney Karen Michael, of the consulting firm Karen Michael PLC, explained for the Richmond Times-Dispatch, the San Francisco 49ers erred in part when the organization said Kaepernick has a “right” to protest during the national anthem what he calls the oppression of people of color in the U.S.

What the 49ers were referring to was Kaepernick’s protected speech rights under the U.S. Constitution’s First Amendment. However, as Michael pointed out, the First Amendment only protects a person’s freedom of speech from interference by the government.

When a person works for a private organization — as Kaepernick does — the First Amendment doesn’t apply.

As a result, protesters who are employed by a private employer, and go against the established policy/rules of that employer, may be subject to discipline.

They’re only protected from government interference.

What this means for the election

To the potential benefit of private employers’, Kaepernick has brought the topic of First Amendment free speech rights to light at an opportune time.

This year’s Presidential Election is sure to spark a lot of heated debates in and around many offices this fall. And many employees may think they can say what they want under the banner of “freedom of speech.” But that’s simply not the case in the private sector, where they could be subject to discipline for what they say.

So if you feel political speech could start to make your work environment a hostile one, it may be a good idea to remind employees they have no protection from discipline under the First Amendment.

However, it’s also worth mentioning that if employee discussions in any way revolve around working conditions, their speech is likely protected by the National Labor Relations Act.

Social media

A recent survey of U.S. employees shows just how many workers have the First Amendment all wrong.

HubShout recently asked workers in its June 2016 Social Media Conduct Survey “Do you believe that getting fired because of a social media post is an infringement of First Amendment rights?”

The answer: 41.2% said “yes.”

Another 28.3% said “not sure,” while the remaining 30.4% said “no.”

That means more than 40% of U.S. workers think they can post what they want without consequences, which just isn’t the case if they work for a private employer.

As the HubShout survey revealed, this could be a fact worth mentioning in your social media or communication policies — just to set the record straight.

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  1. Angelina Arnone says:

    Interesting read!

  2. Oh sure, you can fire someone for protesting. The First Amendment has not and never will protect someone’s freedom of speech when it comes to their employment. The First Amendment doesn’t just blanket everything we say and do under the guise of “free speech”.

    The First Amendment protects your right to speak and protest freely from government infringement. Not your boss. Big difference. It amazes me that we (as Americans) still have to keep having this conversation.

  3. Sammi Cohen says:

    Such an interesting angle on this subject! It’s astounding to me how many employees are under the impression that the First Amendment protects their jobs.

  4. Kind of unnerving over 40% of people don’t actually understand what the first amendment means.

  5. No distinction was made in this article between speech made within the context of work on the employer’s e-mail exchange or social media and an employee’s private e-mail and social media sites. Kaepernick’s protest was made at work, not at (for example) a political rally that he attended during his time off.

    While I know that employers like to wrap themselves in “employment at will” to cover everything, if the court’s uphold the notion that employers can fire people for what they said on their own social media outlets, and the content of the speech has nothing to do with the employer other than perhaps annoy their sensibilities (no reference to the employer or the employer’s practices, for example), then we as a people have sold our soul to Mammon.

    This area of the law is still evolving as we grapple with the finding the edges of our soul being owned by the companies for which we work or our being able to retain an independent voice as a citizen who is part of many different communities with different opportunities for speech. So, let’s not be too hasty to say that our employers can judge our suitability for employment based on what we do or say when not at work. I don’t think any of us really want to live in that kind of a world.

  6. Karen Michael is right when she said the 49’s erred in saying he has the right. Their corporate culture supports free speech, at least in that context.

  7. Taylor Rescignano says:

    I think every working American should be issued an annotated copy of the U.S. Constitution, with extensive notes on the first amendment. There’s no reason that over 40% of U.S. workers think that what they say online won’t hurt their career.

  8. Hopefully most people work at firm who support political / social justice related speech.

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