More about sitting and kneeling

A received some feedback in relation to my answer to this question relating to the whole kneeling/sitting issue. 

  • A fireable offense?

My answer was “no.” Others disagreed with my answer. So, who is right?

I’m not a lawyer, but I will speak as if I did a lot of research in defending my answer. 

As THIS, and THIS, and THIS, and many more articles state, the First Amendment does not offer any protection from being fired for expressing a personal view. Some of the examples cited are actually quite amusing, although, to be fair, they probably were not amusing to the people involved. 

There are employment laws that protect you from being fired for discriminatory reasons but, to date, those reasons do not include political expression. 

The reason so many lawyers when asked if players can be fired answer “yes” is because — in my non-lawyery opinion — they are asked the wrong question. The question should be, can a private company force you to stand for the Anthem? 

Also, note that all the lawyers who answered did so in typical lawyer fashion . . . they used words that qualified the answers; likely, probably, not typically, I doubt it, technically.

That’s because this has not been tested.  

Note also that I specifically said that an employer would find other ways to get rid of you. That is the practical employer reaction when an employee becomes a problem. In fact, CK is — to date — not working. No one admits as to why, but the reason seems pretty obvious even to Trump who is taking credit for decreasing the employment rate of one individual . . . but he should be careful . . . he is a government employee and a rather special one. When he speaks as the president, he may not enjoy the protection of the First Amendment.  You can read about that HERE.

But, getting back to my answer and my weasely way of justifying it. I was speaking — and still am — based on my practical understanding of what might happen. In that regard, I was swayed by articles like these (I quote portions of the articles):

https://lawnewz.com/uncategorized/aba-legal-fact-check-can-you-be-forced-to-participate-in-the-national-anthem/
. . . is one excerpt supporting the owner’s right to act: “Article 46 expresses that the commissioner can punish players ‘for conduct detrimental to the integrity of, or public confidence in, the game of professional football.’” And SI said the “player would contend that a peaceful protest to the anthem could not plausibly be considered a threat to the ‘public respect’ and ‘public confidence’ in the game. After all, the right to political protest is a core American value and one that distinguishes the U.S. from many other countries.”

http://www.thebowenlawgroup.com/blog/can-an-employer-force-an-employee-to-stand-for-the-national-anthem
The 49ers are keenly aware of the media interest generated by Kaepernick’s protest and they wisely do not want to be seen as averse to his cause. That’s not to say they will stand idly by if Kaepernick’s protests became more demonstrative or dangerous or caused so much disruption or divisiveness that it began to actually harm the organization. After all, professional football is a business, and one employee (particularly a backup quarterback) is rarely bigger than the organization as a whole.

Note, the matter has escalated and now involve many more players, making it unlikely this will be tested in court. It’s also unlikely that the next round of negotiated contracts will include “must stand for the anthem”.

https://www.bloomberg.com/news/articles/2017-09-26/fire-nfl-players-for-protesting-union-deals-make-that-unlikely
“We’re talking about to what extent employees are able to maintain their constitutional rights in all spheres of their life,” said James Bhandary-Alexander, a visiting lecturer at Yale Law School who has brought cases under a Connecticut law that restricts companies from firing workers for exercising of First Amendment rights. “How important are our constitutional rights if an employer can fire us for exercising them?”

There are a couple of more articles I read that I’m trying to find and if I do, I’ll add them here. 

BUT . . . note that with regards to my answer, I hang my hat on the difference between what is strictly legal and what might happen if this is tested. I believe that in this case both the race of the person involved and the issue he’s protesting changes the dynamic of how these things might play out. Even there, I could be wrong because this also falls squarely in the court of public opinion. 

The sad thing is that in 31 states — unless covered by a union contract — an employee of a private company can be fired at will even for exercising his right to free speech because, strictly speaking, that only protects you from the government. In that, my detractors are 100% right. That’s somewhat mitigated by laws regarding race, gender, sexual orientation, age, and a few other types of discrimination, but political speech is not included on the list. 

If you want to get depressed about how much power companies have over their employees, read THIS.

However, understand this is a dynamic situation and there are practical aspects companies take into account (unless the bosses are total jerks) such as public perception, potential litigation cost, and so on. 

All that under consideration, I’ll stick with my answer, at least in the case of unionized players. Eventually, I hope that someday — unionized or not — we’ll all have the same rights.

Other reading:

https://www.americanbar.org/publications/insights_on_law_andsociety/15/winter-2015/chill-around-the-water-cooler.html

http://www.investopedia.com/articles/personal-finance/120914/8-federal-laws-protect-employees.asp

https://aflcio.org/2017/9/26/nfl-players-association-responds-attacks-free-speech

http://corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html

 

That’s it. This post has ended . . . except for the stuff below.

<><><><><><><><o><><><><><><><><><o><><><><><><><>

Note: if you are not reading this blog post at DisperserTracks.com, know that it has been copied without permission, and likely is being used by someone with nefarious intention, like attracting you to a malware-infested website.  Could be they also torture small mammals.

<><><><><><><><o><><><><><><><><><o><><><><><><><>

Please, if you are considering bestowing me recognition beyond commenting below, refrain from doing so.  I will decline blogger-to-blogger awards.   I appreciate the intent behind it, but I prefer a comment thanking me for turning you away from a life of crime, religion, or making you a better person in some other way.  That would mean something to me.

If you wish to know more, please read below.

About awards: Blogger Awards
About “likes”:   Of “Likes”, Subscriptions, and Stuff

Note: to those who may click on “like”, or rate the post; if you do not hear from me, know that I am sincerely appreciative, and I thank you for noticing what I do.

. . .  my FP ward  . . . chieken shit.

Finally, if you interpret anything on this blog as me asking or wanting pity, sympathy, or complaining about my life, or asking for help and advice, know you’re  likely missing my subtle mix of irony, sarcasm, and humor.

About disperser

Odd guy with odd views living an odd life during odd times.
This entry was posted in Musings Stuff, Opinion, Personal, Politics, Writing Stuff and tagged , , , , . Bookmark the permalink.

4 Responses to More about sitting and kneeling

  1. colonialist says:

    This is a thorny issue, indeed. Maybe part of the problem is getting too literal about stuff? People are looking at the fine detail of things that were quite happily accepted as generally symbolical in the past.

    Liked by 1 person

  2. I wonder; does anyone really care, or are they just living in a land of make believe?

    Like

Voice your opinion

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s