Sports NFL Players May Have an Ally in Their Protests: Labour Law

15:13  13 october  2017
15:13  13 october  2017 Source:   nytimes.com

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The league ’s operations manual says players must be on the sidelines during the anthem and should stand. While the law might not bear on whether A version of this article appears in print on , on Page B1 of the New York edition with the headline: N.F.L. Players Who Protest Have an Ally In Labor Law .

Reporter Noam Scheiber writes that, since Trump’s call for firing players , their demonstrations now could constitute labor activity that’s federally protected, explains Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board.

Detroit Lions players linked arms, while some knelt, during the playing of the national anthem before a game last month. © Duane Burleson/Associated Press Detroit Lions players linked arms, while some knelt, during the playing of the national anthem before a game last month.

As National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment?

In principle, the answer in the NFL and elsewhere may be: Quite far.

To the extent that most people think about the reach of federal labour law, they probably imagine a union context — like organizing workers, or bargaining as a group across the table from management.

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In principle, the answer in the N.F.L. and elsewhere may be: Quite far. To the extent that most people think about the reach of federal labor law Many experts believe that some of the recent protests by N.F.L. players meet all three conditions, and that as a result, their teams cannot discipline or fire

in Their Protests : Labor LawTogether, said Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board, these precedents suggestthat federal labor law would most likely protect collective protests of the president’s argument that Don’t have an account yet?

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As it happens, the law is much more expansive, protecting any “concerted activities” that employees engage in to support one another in the workplace, whether or not a union is involved. The National Labor Relations Board and the courts have defined such activity to include everything from airing complaints about one’s boss through social media to publicly supporting political causes that have some bearing on one’s work life.

The league’s operations manual says players must be on the sidelines during the anthem and should stand. While the law might not bear on whether an individual player can kneel during the anthem, many experts say it could protect players from repercussions for making such a gesture together — or taking other action — to show solidarity on the job.

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If NFL players protest today, they may have a powerful ally on their side: federal labor law . Here's why the NFL national anthem protests are a phenomenally big deal, and why all workers have a stake in them.

N.F.L. Players May Have an Ally in Their Protests : Labor Law . The reason the author believes we should support the NFL protestors is because they are using their first amendment right to protest for change.

And as unionization continues its decades-long decline, some believe that these alternative forms of taking collective action may be crucial to enabling workers to speak up.

“Workers without a traditional organization that is meant to protect them at work are kind of scrambling around for new ways of protecting themselves,” said Benjamin Sachs, a labor law professor at Harvard University. “It does feel like these are nascent forms of something new.”

To be protected under federal labour law, an employee’s action must be conducted in concert with co-workers, it must address an issue of relevance to their job, and it must be carried out using appropriate means. Workers can’t, say, damage property or threaten violence. (If the workers have a collective bargaining agreement with their employer that forbids certain actions — like striking — they can’t do that, either.)

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As National Football League owners and players ’ union representatives meet in New York today and tomorrow to discuss the players ’ recent Each of these three bodies of law — constitutional law , civil rights law and labor law — independently protects players from retaliation for anthem protests .

On September 24, 2017, the NFL protests became more widespread when over 200 players sat or kneeled in response to Donald Trump's calling for owners to fire the protesting players .[5]. On May 23, 2018

Many experts believe that some of the recent protests by NFL players meet all three conditions, and that as a result, their teams cannot discipline or fire them for taking part.

These experts point to a 1978 case in which the Supreme Court ruled that workers have a right to engage in political advocacy as long as the political theme relates to their job. In 2008, the general counsel of the National Labor Relations Board, which enforces federal labour law, issued a guidance making clear that workers had a right to publicly demonstrate for or against immigration legislation pending in Congress, though they didn’t have the right to skip work to do so.

More recently, the Obama-era labour board appeared to bless a relatively informal definition of the term “concerted activities,” so that spontaneous banter, and not just well-orchestrated action like a formal protest, could qualify as protected.

For example, the board ruled that two employees of a sports bar had been improperly fired after one complained on Facebook that their boss had mishandled their tax withholdings and another “liked” a former employee’s Facebook complaint. In another case, the board ruled that an employer couldn’t fire five workers who had gone on Facebook to object to criticism of their work by a sixth employee.

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The first challenge for anyone considering this issue as a matter of labor and employment is far easier said than done: You need to set aside whatever your personal beliefs may be regarding NFL players protesting during That’s where traditional principles of labor law becomes relevant to the situation.

Nor were many anxious to give women the vote, eliminate child labor , abolish Jim Crow laws , end the Vietnam War. The NFL owners’ more pressing concern was money. They feared that their decline in ratings was the result of player protests .

Together, said Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board, these precedents suggest that federal labour law would most likely protect collective protests of the president’s argument that players should be fired over political gestures — or his suggestion that league rules designed to protect players from debilitating injury are too strict.

Mr. Bodie added that a player was also likely to enjoy federal protection for any protest in support of other players who had been disciplined.

“If they’re standing up for other players’ rights to kneel in the context of their job and keep their job, it seems to me to be protected concerted activity,” Mr. Bodie said.

Michael J. Lotito, a lawyer with the management-side firm Littler Mendelson, agreed that players who protested Mr. Trump’s efforts to stifle their colleagues’ political gestures could be engaging in protected activity. But he argued that under the law, which he said the Obama-era labour board had interpreted too broadly, the activity would have to entail more than kneeling during the national anthem.

He said players would need a more overt connection to their cause, like passing out, to other players, fliers that took issue with the president’s meddling in their workplace.

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While I agree with Ben that Dallas Cowboys owner Jerry Jones violated the National Labor Relations Act when he threatened to bench players The law regarding partial strikes acts as a trap for unwary workers who wrongly assume that a less disruptive protest would be as protected as a full strike.

Players in the National Football League ( NFL ) have recently drawn considerable attention for kneeling during the national anthem in protest of police violence against black Americans. We've rounded up the latest news on the ongoing protects and how labor laws might apply.

Mr. Lotito also said the players’ collective bargaining agreement with the owners could lawfully prohibit these sorts of protests. But Michael LeRoy, who teaches sports law at the University of Illinois, said the league’s bargaining agreement was somewhat ambiguous on the question of protests with a political dimension.

The NFL and its players association did not respond to requests for comment.

Experts said the “concerted activity” right could be even more profound in workplaces, unlike the NFL, where employees aren’t unionized and, therefore, have fewer tools for challenging their employers.

“People naturally have complaints, and they don’t go away just because you kill unions,” said Wilma B. Liebman, a former chairwoman of the labour board during the Obama administration.

Mr. Sachs of Harvard pointed to a case involving a group of employees for a Washington State construction contractor, some of whom produced and publicly released a YouTube video complaining that they were being forced to handle contaminated soil without proper training. The labour board issued a complaint against the company for firing the workers, and the company ultimately settled.

Even James Damore, the Google engineer recently fired for internally sharing a memo about the company’s diversity policies that many found offensive, could credibly claim that federal labour law protected his actions, according to Mr. Bodie. To do so, Mr. Damore would have to demonstrate that he had been seeking to enlist his co-workers in questioning the policies, as he has since suggested was his goal.

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There are rumblings among players for other teams that their outfits have already done or are about to do the exact same thing. For months on end, Trump demeaned NFL players who took a knee during the national anthem to protest police brutality and racial violence in America.

The Trump administration appears to take a dim view of workers’ rights to band together outside traditional union activities. Beyond the president’s forays into the NFL controversy, his administration took the unusual step of reversing the government’s position in a worker-rights case pending before the Supreme Court.

The court, which heard the argument in the case last week, must decide how strong a right workers have to band together to sue employers over workplace concerns, like wage theft or safety lapses, or initiate collective arbitration proceedings to address these issues. Courts have generally acknowledged that federal labour law protects workers’ rights to bring class-action cases, but there is debate about whether employers can require workers to waive that right through their employment contracts. The Trump administration argues that they can do so.

With a conservative majority on the Supreme Court and a Republican majority on the labour board, federal law is likely to move in this direction.

Even so, there is probably no reversing the trend of employees’ piping up en masse in the workplace. “People’s instinct, whether you know the word ‘solidarity’ or not, is to look for people to join you,” said Ms. Liebman, the former board chairman. “The growth of social media, Twitter, different avenues for expressing solidarity, is kind of remarkable.”

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