Human Resources Consulting - Columbia SC

Employee Political Behavior:
What to Do if Your Employee Takes a Knee while the
National Anthem is Being Played

Recently the news has been inundated with reports of National Football League players kneeling during the playing of the National Anthem. I am sure that you have heard arguments on both sides of this issue. Some agree with the players, others do not. Some have called for the firing of the players while others have said that it their right under the First Amendment. So, let’s try to distinguish truth from fiction, from a Human Resources standpoint.

First, let’s take a look at the issue of free speech in the workplace. Employees in the public sector – those who work for governmental entities – have First Amendment rights as employees, subject to certain restrictions. The case law that has developed over time regarding First Amendment rights in the workplace has come from this group, as the government is directly affecting employees in public sector cases. However, for individuals who are employed in private sector organizations, there are no freedom of speech protections under the First Amendment. Since the NFL is a private sector employer, players are not protected by the First Amendment, as it relates to their employment.

Secondly, consider consequences. South Carolina, like many other states, is often referred to as an “employment at will” state. What this essentially means is that an employer may hire or fire an employee at any time, for any reason as long as that reason does not violate State or Federal law. Specifically, an employer may not make any employment decisions based on an employee’s age, race, sex, religion, pregnancy, national origin, disability, or genetics. While, to the best of my knowledge, there is no Federal law which prohibits a private sector employer from terminating an employee because of his/her political opinions or actions, there are state laws which apply.

South Carolina has a law which creates another exception to the employment at will rule:

“It is unlawful for a person to assault or intimidate a citizen, discharge a citizen from employment or occupation, or eject a citizen from a rented home, land or other property because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State. A person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction must be fined not more than one thousand dollars or imprisoned not more than two years, or both.” (South Carolina code 16-17-560)

Other States have similar laws. For instance, California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, Utah, West Virginia, Seattle (Washington), and Madison (Wisconsin), prohibit employers from retaliating against employees for engaging in “political activities”. Illinois, New York and Washington prohibit employers from discriminating against employees for election related speech and other political activities. Colorado, North Dakota and Utah prohibit discrimination based on “lawful conduct outside of work”. (The preceding is not an all inclusive list of states or cities which prohibit private sector employers from disciplining or terminating employees based on their political opinions or actions.)

If any employer would like to terminate an employee based on that individual’s political opinions or actions, it would behoove the employer to first check the laws of his/her state before taking any actions.

A company’s best defense against the potential expense and aggravation related to federal or state law violations is to proactively review and revise as needed their Human Resources policies, handbooks, hiring procedures, compensation, benefits, training programs, communications tools and other functions. The professionals of PHHR are ready to assist your organization maintain compliance with the latest state and federal mandates.

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Paul Hilton is a certified Human Resources Consultant, located in Columbia, SC.
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Paul Hilton, Human Resources Consulting, LLC
Columbia, South Carolina
Office: (803) 481-9533
Cell: (803) 305-8962 

Paul Hilton, Human Resources Consulting, LLC