I posted this earlier and got a lot of replies. Do not know what happened to it.
Am I not entitled to my opinion on here? It is a well thought out respectful argument on the issue.
I even included a link to a law journal article about speech in the workplace.
I spent 3 years working on this post.
J-B-9 NFL KNEELING
Outline
General Basics
What if people had the Right to disrupt the workplace space
What is the case
What is the law
Perception is paramount
What about the employees
Get educated
Standard to resolve
The courts will never allow it
What I think
How to stop the players
Can the veteran win the case?
What about the fans
Workplace becomes hostile
Who are the players
I am correct
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General Basics
The NFL players Do Not have the Right to First Amendment Protected Free Speech in the workplace space!
Stop calling it a Right for the NFL Players.
It is the owner’s choice based on cost-benefit analysis based on the EEOC and Workplace Harassment Law.
If the owner of a team feels that a reasonable person working at the Stadium would be offended by the protests at their workplace space, and prevail in court based on the EEOC and Workplace Harassment Law, the owner would be wise to shut the protests down.
It makes no difference what you call the NFL players.
You can call them independent contractors, union employees, or contracted employees.
Independent contractors, union employees, contractors, sub contractors, employees, temp workers, anyone working in the space, are not allowed to go into the workplace of the company and harass anyone who works there, with social-political commentary and protest, especially during the weekly ceremony the company puts on that honors a protected class of people under Federal Law, veterans of the military.
The owners have every right to shut the protest down, and actually have an obligation under the law to shut the protest down.
The EEOC and Workplace Harassment Law make that every clear.
If Senator Booker does not understand this, then he does not know the law, and then he does not deserve to be a US Senator from NJ, and should not be.
Let Booker be the lawyer who will go to the US Supreme Court and argue employees and contractors can go into a company’s workplace space, and have the Right to First Amendment Protected Free Speech.
Booker will lose.
The Right to Free Speech does not exist in the workplace.
It is absolutely true.
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What if people had the Right to disrupt the workplace space
Try to imagine the things people might say at work If people actually had the Right to First Amendment Protected Free Speech in the workplace space, and thus could not be fired over it.
That will never be allowed.
Companies will always have the Right to fire employees over speech in the workplace, especially if the speech is stepping on a class of people who are a protected class of people under Federal Law, such as Veterans of the US military.
Here is a recent high profile example.
Bob Bickle was in his office at Fox News, and a worker came in to work on Bickle’s computer, and Bickle said something about the worker being Black.
Bickle was fired for it.
If he could claim he had the Right to First Amendment Protected Free Speech in the workplace space, he could sue and win a large sum of money from Fox News.
He never sued, even though he has the money to, because he knows he would lose.
People just Do Not have the Right to First Amendment Protected Free Speech in the workplace space!
The NFL players Do Not have the Right to First Amendment Protected Free Speech in the workplace space!
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What is the case
There are many laws, all dealing with discrimination.
Follow the thread below.
Veterans are a protected class under Federal Law.
Employers are responsible for all speech in the workplace.
Employers are responsible for the words and actions of people who work in the workplace that step on a protected class.
Anyone who works there can file a complaint with human resources.
If the company finds the complaint reasonable, the company will shut the speech or action down in some way, with a warning, suspension, or firing.
If the company does not find the complaint reasonable, they will do nothing, and cannot retaliate against the employee who made the complaint.
If the employee feels strongly enough, the employee can file a lawsuit against the company for workplace harassment.
Put it this way.
If a veteran working at Met Life Stadium, going into work every Sunday, sees the players disrespecting him, by stepping on the weekly ceremony the team does to honor the veteran, and the veteran complains to the Giants or Jets Human Resources, and the Giants or Jets do not stop the protesting every week, the veteran can file a lawsuit against the team for workplace harassment.
I say without a doubt the veteran would win the law suit against the team, because the veteran is a Protected Class under Federal Law.
Cannot be harassed like that at work.
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What is the law
To win a harassment lawsuit, you have to prove each of these elements in court.
1 - based on the victim’s protected characteristic
2 - offensive
3 - unwelcome
4 - severe or pervasive enough to affect the terms and conditions of the victim’s employment.
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I say:
1- The veteran is a protected class under Federal Law in regards to workplace harassment.
2- It is offensive to hold a social-political protest during a ceremony that honors that protected class.
3- The veteran does not welcome the protest, hence the Human Resources complaint.
4- The protests during the National Anthem are severe and pervasive.
The protests are ongoing, and have spread throughout the NFL, and into other sports.
The protests are happening every Sunday the stadium has a game.
The protests are so severe that it is national news, and people are boycotting the NFL.
The veteran, going into work, knowing the company is allowing the players to disrespect the veteran at work, does change the terms and conditions of the workplace.
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Perception is paramount
Perception is the name of the game in workplace harassment law.
Wise employers act on the side of caution, and will ask the speech or behavior to stop.
All a court would have to do is think the veteran working at Met Life Stadium is a reasonable person, and that the perception is reasonable.
We know it is reasonable perception to half the country.
Half the country finds it offensive and disrespectful to our veterans to hold a protest during the National Anthem.
The players do not have to be directing their protest to anyone working at the stadium for workplace harassment law to be applied.
Here is an example.
Let’s say I am at work, and one of my best friends is gay, and I am sensitive to jokes about gays, and I hear one co-worker tell another co-worker a bad joke about gays.
I can percieve that to be offensive.
I do not need the joke to be directed at me, or told to me, to be offended.
I can go to HR, file the complaint, and HR will investigate.
If HR is looking to get rid of this employee, this employee will be fired.
If HR wants to keep the employee, they may give a warning or suspension, for a first time.
It is workplace harassment even if not directed toward me.
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What about the employees
People who work at the NFL stadiums care.
Many are deeply offended.
The military veterans who work at the stadiums bust their butts to make it so the ticket holders get a great experience at the stadium, so the players and owners can make big money.
The players turn around and do a protest precisely during the 90 seconds when these veterans are being honored.
The owners refuse to stop the protests.
It is a disgrace.
It is abusive.
It is an injustice.
It is offensive.
It is harassment.
Workplace harassment law says the team can and should shut the protest down.
It does not matter why the players are protesting, what they mean by it, what it is all about, or what the intent is.
Under Workplace Harassment Law, the protest can and should be shut down because doing it during the National Anthem is offensive abusive harassment to all reasonable people who work at the stadium, who support our military veterans or who are military veterans.
One solution might be instead of the players stepping on the veterans by protesting during the National Anthem played to honor the veterans, the players should ask the team owner to do something to honor all victims of injustice before the game.
Play a special song or something. Come up with something short and sweet.
That should not offend anyone.
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Get educated
People who believe the NFL players have the Right to come into the workplace and protest during the National Anthem should read this paper from Georgetown Law Journal, written by a UCLA law professor.
http://www2.law.ucla.edu/volokh/harass/breadth.htm
The players protesting at work during the playing of the National Anthem are clearly harassing employees who work at the stadium either directly for the team or for contractors, who are military veterans or United States citizens who love and respect the United States and the military.
The offensive harassment is having a severe negative psychological affect on certain employees who are military veterans, as well as employees who are US citizens who love and respect the United States and the military.
The offensive harassment is happening every game in a lot of NFL stadiums.
The offensive harassment is ongoing and so large it is in the news all the time.
It does not matter if you call the protest a social commentary, protest about injustice, a political protest, or protest against the flag or military.
Perception is everything in workplace harassment law, not intent.
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Below are some points from the paper.
Workplace harassment law is a speech restriction of remarkable breadth.
It goes far beyond slurs, hardcore pornography, repeated vulgar sexual propositions, and the like, and can suppress, among other things, political statements , and other kinds of speech that are generally seen as being entirely constitutionally protected.
The first place to look in determining the scope of harassment law, of course, is the legal definition of “harassment.”
Speech can be punished as workplace harassment if it’s “severe or pervasive” enough to create a “hostile or abusive work environment”
Based on race, religion, sex, national origin, age, disability (including obesity), military membership or veteran status…
For the plaintiff and for a reasonable person.
Conclusion:
The speech that harassment law restricts
The scope of harassment law is thus molded by three facts:
On its face, harassment law draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech.
All can be punished, so long as they are “severe or pervasive” enough to create a “hostile environment.”
The vagueness of the terms “severe” and “pervasive” – and the fact that the law is implemented by employers, who have an incentive to over suppress – means that the law may practically restrict any speech that an employer concludes might be found by a fact-finder to be “severe or pervasive” enough.
Finally, because an employer is liable for the aggregate of all its employees’ speech, wise employers will bar any sort of statement that might, if repeated enough by people, be “severe or pervasive” enough to create a hostile environment.
Putting all this together, harassment law potentially burdens any workplace speech that is offensive to at least one person in the workplace based on that person’s race, religion, sex, national origin, age, disability, military membership or veteran status or, in some jurisdictions, sexual orientation, marital status, political affiliation, criminal record, occupation, citizenship status, tobacco use outside work, Appalachian origin, receipt of public assistance, dishonorable discharge from the military, or personal appearance, even when the speech is political and even when it’s not severe or pervasive enough to itself be actionable.
The evidence I have set out – the best guess as to how a cautious employer would behave, the policies recommended by employment lawyers, the policies actually implemented by some employers, the injunctions issued by courts, the logic of the seventy-nine law professors’ brief, the justification provided in the educational context by Professor Grey, even the recommended policy given by Professor Epstein, who claims that harassment law is a very narrow speech restriction – all points towards this. The “regulatory reach” of harassment law is certainly not limited to the “most objectively extreme, persistent, and unwelcome” forms of conduct.
Of course, the speech-restrictive potential of harassment law won’t be realized in every situation. Many employers will live dangerously – from prejudice, ignorance, or even a commitment to free expression. Many offended employees won’t complain. Many fact-finders will apply high thresholds of “severity” and “pervasiveness” rather than low ones.
To properly measure harassment law’s impact on speech, we should ask:
What restrictions would prudent, law-abiding employers – employers who heed the EEOC’s statement that “Prevention is the best tool for the elimination of sexual harassment” – impose in trying to avoid liability?
The answer appears to be what I outline above: a broad prohibition on a wide range of isolated statements.
It’s a mistake to hide behind the supposed shield of the severity and pervasiveness requirements.
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Standard to resolve
The standard to resolve the issue of a NFL player’s protest at work is workplace harassment law.
The standard is not the Right to First Amendment protected Free Speech in the workplace.
That Right simply does not exist.
Is it reasonable the speech or act is offensive to the employee making the complaint about the protest?
Is the complaint reasonable?
Is the person making the complaint a reasonable person?
We can get teams on the record making this determination through Human Resources investigations after complaints are made to Human Resources.
This is the key to the deal.
Will teams defend the protesting player(s) or side with the complaining employee.
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The courts will never allow it
People need to understand what the First Amendment protects, and thus why it must never be extended to employees and contractors in the workplace.
No State, Federal, or Supreme Court in the Nation will ever rule workers, employees, contractors and sub contractors, union and non-union employees, and exempt and non-exempt employees, have the Right to First Amendment Protected Free Speech in the workplace.
The Courts have ruled against Free Speech in the workplace every time, not for it.
The First Amendment Protections for Free Speech cover almost all speech, including hate speech.
Companies would never be able to fire anyone for saying offensive things at work in front of other workers if the employee can claim First Amendment Protections to Free Speech in the workplace.
It is never going to happen.
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What I think
The NFL Players can kneel all they want, do cartwheels for all I care.
They have No Right to protest social-economic-political-justice issues at work, during the National Anthem.
What the NFL Players are doing is not Protected Free Speech, because they are doing it in the workplace.
The protests are occurring in view of thousands of other workers and contractors of both teams and the stadium.
If just one person who works there is reasonably offended, the team must by Federal Law shut the protest down.
If the NFL players, union, owners, or teams, go into a State or Federal Court and argue that the NFL players have the Right to First Amendment protected Free Speech in the workplace, they will lose.
No court in the country will rule that.
The only people who have that Right at work are the press, and that is because of Freedom of the Press, and it extends to the media.
It does not extend to workers in the workplace like this.
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How to stop the players
How to stop the NFL Players from “Protesting” at work.
An employee or contractor for a NFL team must go into Human Resources of the team and make the complaint about the political protest in the workplace.
Then if the team does not take action to stop the offending protest, the employee can file a Federal Lawsuit against the team for workplace harassment.
Just because no one has come forward yet does not mean it will not happen this season.
I would like to see a retired US Army Iraq War Veteran working at Metlife stadium as an usher to come forward and make the complaint when he sees a member of the Jets or Giants protesting at the stadium.
The Human Resources complaint is the means by which this whole thing is going to get resolved.
Either the Jets or Giants will put a stop to the protest, or the retired war veteran working for 10 dollars a hour as an usher on game day is going to be a very wealthy man.
Workplace harassment damages have high punitive amounts.
If the case goes to Court, I doubt a judge would would say the players have a Right to protest at work, in the workplace, and during work.
No Judge or Court in America will ever say employees can go into work and protest a Nation’s Flag or National Anthem, or anything else that is likely to offend any other employee or contractor in the workplace.
If a Court ever did, that would open the Pandora’s box.
Any employee could then go into work and protest Mexico for what they do, or any other country for anything the employee does not agree in with in their heart and soul.
This would likely deeply offend other employees.
The protesting employee would then be protected and could not be fired for it.
That can never be allowed to happen and will never happen.
No one has the Right to go into work in a large company and protest anything!
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Can the veteran win the case?
Yes!
Wokplace harassment law is all about the perception of the person making the complaint.
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Did what the complaining employee describe happen?
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Is it reasonable a person would be offended by the words or actions noted in the complaint?
In this case both answers are yes.
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We know the protest is happening because the protest is on camera and taking place in front of many witnesses.
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We know people are reasonably offended.
Just look at the NFL ratings since this non-sense protest stuff started.
The protest is a slap in the face to everyone who is standing for the Flag and Anthem.
There are many ways one can perceive the action to be offensive.
We know the players taking a knee during the National Anthem is a political protest.
The players call it a protest and have been on television and radio stating it is a protest against injustices.
America perceives the action as a protest.
All of the media call it a protest, including television, print, Internet, and radio.
The players union calls it a protest.
The NFL calls it a protest.
The teams’ owners and management call it a protest.
The fans call it a protest.
The public at large call it a protest.
It is a protest that reasonably offends half the country at least.
The retired US Army Iraq War Veteran working at Met life stadium as an usher should not be afraid to go to Human Resources.
Workplace harassment complaints to Human Resources are protected speech.
The company can not fire the employee or take any action against the employee for making the complaint, even if the company determines the complaint to not be reasonable.
If the company takes action against the complaining employee, then another prong of workplace harassment law is applicable.
The employee can then file a Federal law suit against the company for retaliation.
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What about the fans
For those who are wondering why it is not offensive when Fans do not stand for the National Anthem, the answer is very simple.
Going to the bathroom, going to get a beer, being too lazy to stand up, or busy doing something else is not a protest.
There is no stated or implied protest with political views attached to those actions a Fan might take at the stadium.
Fans can do whatever they want, they do not work there. They are customers.
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Workplace becomes hostile
Attached to the players’ protest in the workplace is implied political views and beliefs.
Political views and beliefs not everyone agrees with.
Expressing strong political views and beliefs to others will often cause emotions to flare up.
Hard feelings can develop and the workplace can become hostile.
This is why no one can protest at work after a complaint to Human Resources is made.
No one!
If employees and contractors in the workplace were allowed to protest at work, and no employee offended had the Right to go to human resources and complain, employees would start to take matters into their own hands.
There would be fist fights everyday in every factory, industrial campus, and office building in the country.
This is why we have Federal and State workplace harassment law.
The workplace is not the place to express strong political views, especially when someone in the workplace is likely to be offended.
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Who are the players
The reason the Press and Media do not understand what I am talking about is because they are exempt, for the most part, from Workplace Harassment Law for the views they express required by their job.
The Press and Media are allowed to go into work and rail against anything they want to as their work.
It is protected speech.
It is Freedom of the Press.
A NFL player is not the Press.
A NFL player is an employee in a Union, working for a company.
The job the player agreed to perform has nothing to do with the media.
There is no guarantee or mention in the player’s contract they will be on television, or even if anyone will see the game from the stands.
The players are not actors, not the media, not the Press, and are not artistic performers.
The player’s contract says play the game of football for the company.
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I am correct
My example of the retired US army war veteran working at Met life stadium as an usher, as someone who would be likely to be offended by the players’ protest in the workplace, is dead on correct.
I know the case I stated in the 15 sections above are correct and the way this NFL player kneeling protest can be resolved once and for all.
Anyone who wants to insist I am wrong on this, put your money where your mouth is.
Go into work and start saying hate speech that you know is 100 percent First Amendment Protected Speech.
When you get fired, sue for wrongful termination, claiming you have the Right to First Amendment Protected Speech at work and cannot be fired for it.
See what happens.
You will lose. You will lose every time, as everyone has.
Employees do not have the Right to First Amendment Protected Speech in the workplace.
This situation is so high profile now that we will find out which way this fight is going if and when an employee makes a Human Resources complaint and the team takes no steps to shut the protest down, and the employee then files a law suit against the team.
If the NFL does not shut it down, the courts will.
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