Outten & Golden: Empowering Employees in the Workplace

Tackling Political Speech in the Workplace: What We Can Learn from Chris Kluwe

February 24th, 2014 | Nicolas Orihuela

nicolasChris Kluwe was back in the headlines this week for his public support of Michael Sam, a top NFL draft prospect, who announced on Sunday that he is gay.  Chris Kluwe, a former punter with the Minnesota Vikings, claimed earlier this year that he was released from the team for his public support of gay marriage.

As high profile athletes, Kluwe and Sam command the attention of the media and the electorate when they speak up on important societal issues. Michael Sam has indicated that he will not engage in activism in support of gay rights and will choose instead to focus on his fledgling NFL career.

While I do not know him nor pretend to know his motives, I can’t help but think: is the fear of losing out on a high draft pick or not being signed by an NFL team driving his decision not to engage in political activity outside the locker room?  Losing a job should not be a concern that employees have when considering whether to engage in political activities outside the workplace.   Which brings us back to Kluwe’s situation and the question of whether the Vikings had the right to terminate him, assuming his allegations are true, for voicing his political views on gay rights?

With politics a part of daily life, it is only natural that the world of work and politics will collide.   Unfortunately, it is not uncommon for employees to be terminated when the political opinions within these worlds also collide.  Recently, Dick Metcalf, a well known gun journalist, was fired from his job writing for Guns & Ammo magazine after he wrote a column calling into question the absolute right to bear arms.

And take the recent case of Maria Conchita Alonso, a Latin-American actress, who was to participate in a Spanish language version production of “The Vagina Monologues.”  After voicing her support for a Republican California gubernatorial candidate, Tim Donnelly, she was met with fierce protest and basically forced to resign from the production.

The difficulty lies in how to draw the boundaries around protected speech so that the political beliefs and activities of both the employee and the employer are respected.  Employers will argue their own right to political expression and that they should be able to regulate disruptive political activity in the workplace.  However, employers should not have the power to make employment decisions solely based on the political activities outside the workplace.  An employee should simply be able to take a personal stand on political issues (rightly or wrongly) without fear of retribution.

Like Chris Kluwe, most workers who engage in political activity do so on their own time and outside of the workplace.  But without any statutory protection, employers are able to misuse their economic power to influence the political activities of their employees no matter where those activities take place.

Now, if Chris Kluwe played for the Raiders, 49ers or Chargers — all based in California — his right to political speech would be protected.  Two statutes (sections 1101 and 1102 of the California Labor Code) make it unlawful for private employers to retaliate against employees because of their political affiliations or political activities.  California seems to be one of the very few states that protects employees from retaliation for engaging in political discourse outside of work or while at work.

So where does our punter, Mr. Kluwe, stand?  As a result of his allegations, the Vikings are now investigating his claims and have interviewed Mr. Kluwe about his allegations.  However, there is no guarantee that the team will corroborate what he alleges.  And because he does not live in California, there is also no guarantee that the Vikings will remedy any wrongdoing.  While I hope that the Vikings will do the right thing, the natural tendency is for large employers and institutions to close ranks and do nothing to change.  We’ll see soon enough whether the Vikings decide to punt the issue or tackle the issue head on.

This article was originally printed on CELA Voice on February 13, 2014.  Reprinted with permission.

About the Author: Nicolas Orihuela is a founding partner of the employment law firm of Hurwitz, Orihuela & Hayes, LLP and has been practicing since 2002. He represents employees in race discrimination, sex harassment, wrongful termination and disability discrimination related cases. He also handles wage and hour cases. Mr. Orihuela is a member of the California Employment Lawyers Association and the Consumer Attorneys Association of Los Angeles, which are organizations dedicated to protecting the rights of employees and consumers. He is a graduate of Loyola Law School and Loyola Marymount University. While at Loyola Law School he served as a Staff Writer and Articles Editor of the Loyola of Angeles Law Review. Prior to founding Hurwitz, Orihuela & Hayes, LLP in 2007, he worked at Lim, Ruger & Kim, LLP where he handled employment matters, including wage and hour class actions, on behalf of employees.

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