Outten & Golden: Empowering Employees in the Workplace

Archive for the ‘Political Speech’ Category

Want To Speak Out About Politics at Work? Here Are 3 Things You Need to Know.

Tuesday, May 16th, 2017

In the past several months, there’s been a noted uptick in political speech at work. That speech has often made national news, from Sally Yates’ dismissal as interim attorney general to IBM workers organizing against their employer’s support of Donald Trump. In the early days of the Trump administration, the New York Taxi Workers Alliance’s strike against the Muslim ban at John F. Kennedy International Airport stood out as an impressive act of resistance and solidarity. And even before Trump’s election, Colin Kaepernick, then a quarterback for the San Francisco 49ers, sparked a national discussion when he refused to stand during the national anthem in protest of racism against African-Americans and other people of color.

Protests against the administration are building quickly, with diverse groups organizing mass protests against the administration’s policies. This month, on May Day—otherwise known as International Workers’ Day—thousands of workers across the country took to the streets to challenge Trump’s draconian and unconstitutional immigration policies. In all likelihood, political activity at work will only increase throughout the Trump administration, all of which begs the question: How protected are workers who talk politics on the job?

As it turns out, not very, at least legally. Though more than 40 percent of participants in a 2014 YouGov poll believed that the First Amendment protected them from retaliation for their workplace political speech, the truth is that workers have, at best, a patchwork of rights to talk politics at work.

Most private sector workers have no Constitutional protections to engage in political speech at work. However, they do have rights as workers. (Government workers have some limited First Amendment rights because the First Amendment applies to government action, but those rights aren’t always consistently defined.)

Though it can be difficult to navigate the maze of laws that regulates employment, there are some simple things to keep in mind that can help private sector employees ensure they have maximum protection at work. These tips are not foolproof ways to protect your job, but they provide some cover in the face of the risks and challenges ahead. Of course, you’re safest keeping your protests outside of work, but building the resistance against Trump will require shop floor leaders to be vocal and visible. While speaking out at work is inherently risky, the rewards measured in collective strength and tangible gains cannot be overestimated.

Step 1: Bring a buddy

The National Labor Relations Act (NLRA), the main law governing relations between workers and employers in the private sector, is unique: It mostly protects groups, not individuals. This means that whenever you stand up to improve the conditions at your workplace with at least one other worker, you are engaging in “protected concerted activity” under the NLRA, and you can’t lawfully be fired or disciplined for that activity. Solidarity at work is protected under federal law. This protection applies to regular workplace complaints and grievances—for instance, joining with your coworkers to form a union or ask for a wage increase—but can also apply to political activity.

Usually, even talking to coworkers about your problems at work is “protected concerted activity.” The National Labor Relations Board (NLRB) recently broadened the meaning of the term in a 2014 case. In that case, the NLRB held that a worker who talked to her coworkers about serving as witnesses in her individual sexual harassment complaint was protected under the NLRA because she was enlisting coworkers in her aid. This suggests that a worker can invoke the protections of the NLRA just by talking with coworkers.

It’s always a good idea to act with at least one other coworker. The best defense is building strong ties with coworkers and the community. The more the boss fears pushback, the less likely he is to retaliate. At the very least, make sure to talk to a coworker before engaging in any action at work, political or otherwise, to bring that action under the NLRA’s protection. But keep in mind that not all political protest is protected—as Step 2 explains.

Step 2: If you’re talking or protesting politics, find ways to tie your protest to issues your employer can control

If you decide to engage in political activity at work, the most important action you can take to protect yourself and your coworkers is to tie your speech or protest to an “employment related concern.” With some limited exceptions, the NLRA protects you from discipline for discussing anything having to do with your pay, occupational safety, the policies at your job, and other terms and conditions of employment with coworkers and third parties, whether the news media or a government agency. In a famous labor law case from 1962, NLRB v. Washington Aluminum, the Supreme Court found that labor law protected a group of workers who spontaneously walked off the job because the shop was too cold to work, though there was a rule against leaving work without the supervisor’s permission and the employees didn’t plan or know they were engaging in a workplace action.

Problems that your employer can’t affect or control are not employment related. For example, in 2006, hundreds of workers were terminated for walking off the job to join massive protests against anti-immigrant legislation proposed in Congress. In response to the terminations, the NLRB came up with some guidelines for political activity. While the protests were found to have been done for “mutual aid and protection”—workers standing together in solidarity—walking off the job against employer rules was unprotected, since the employers could not control immigration policy.

Sometimes an employer does have power over a government policy—for instance, if the employer is actively involved in lobbying over that policy, like in a recent case where taxi drivers protested against their employer, a Las Vegas cab company, for lobbying for more medallions, which would put more drivers on the road and reduce their pay. Still, the takeaway is that you should always try to make sure your protest is about a tangible workplace policy. For instance, if you want to protest the Trump administration’s immigration policies, you could center your protest around a demand that the employer not conduct voluntary I-9 audits.

One last thing to remember is that if an employer has a rule that limits political speech at work, it has to be neutral on its face and neutrally applied. If you are fired for violating an employer attendance policy to attend a rally against Trump’s immigration policies, but another coworker who also violated the attendance policy to attend a Trump rally is unscathed, then the boss has violated the law by failing to apply work rules neutrally and you should contact an attorney or the NLRB to report the violation.

Step 3: Build solidarity at work and in the community

Nothing protects you more than the support and solidarity of your coworkers and community. Collective action is a time-honored and battle-tested tactic. The more people support you, the more the boss will be afraid to retaliate against you. In the Fight for $15 campaign, organizers perfected the art of the “walk back.” After one of their now famous strike days, community members, including clergy and local politicians, would walk striking worker back to fast food restaurants in a show of community power. Build relationships at work and in your community to prepare for the fight ahead. Nothing is stronger than people power.

This article originally appeared at Inthesetimes.com on May 15, 2017. Reprinted with permission.

About the Authors: Leo Gertner is a labor lawyer in Washington, D.C., who previously worked as a grievance representative for janitors in Boston. Sam Wheeler is a Pennsylvania labor lawyer who has previously worked in electoral politics and in the legal departments of several national unions.

Where do we draw the line on political speech in the workplace?

Monday, November 7th, 2016

17547163106_3874c2b4d7_k_2This year’s election has stirred up a lot of controversy, arguably more than the most recent elections. Everyone is talking about the election, whether it is in person or online. Sex, politics, religion, money; these are things we were told not to talk about, especially at work. But now, in this new age of technology, even if we don’t talk about it at the office people can still find out our views if we post online. What rules apply to the workplace and where do we draw the line?

 

Political speech

There seems to be a fine line between what type of political speech is and is not acceptable in the workplace. Federal Law prohibits government employers from restricting free speech in the workplace because of the 1st Amendment. However, private employers do not have the same restriction. In some states, employers may be able to express their political beliefs as long as they are not coercing any employees to vote for or contribute funds to a specific candidate. However, encouraging donations is fine. Other places only allow a company to express its beliefs by expressing its views on which side of each issue is best for the future of the company. Are employees held to the same standard?

What can employees talk about at work? Friends talk about politics outside of work, but what if you are friends with your coworkers? Some employees may be fine with talking about politics with each other. However, if these conversations happen at work where other employees can hear them, they might be offending someone. Employers can regulate as they see fit through their own workplace policies but there aren’t any laws governing this. Some might think offensive political speech would amount to a hostile working environment. However, federal and state laws do not consider political speech as a basis to prove a workplace is hostile. Should employees be able to talk about politics that deal with workers rights, like health care, minimum wage laws, and working conditions? Do employers have the right to restrict this type of speech through their policies? And what happens when someone’s views differs than the boss’s?

Retaliation and discrimination

There are only a few states with laws prohibiting retaliation against employees for their political beliefs. Employees may be fired or passed up for promotions just for having opposing political beliefs from their boss. Even if an employee doesn’t talk about their beliefs at work, an employer can use what they find on the Internet against you. If you post political speech on Facebook, Twitter, Instagram, or any other form of social media, your employer can find out about it. But what about your coworkers, can they discriminate against you?

A recent article talked about coworkers using political speech to harass a Hispanic woman. They changed her computer screensaver to pictures of Trump. They also told her to go back to Mexico and called her an illegal immigrant, even though she was born in America. This woman was eventually fired and told, “Illegal immigrants can’t vote or work. Good luck finding a job.” Is this political speech enough to consider the workplace hostile, even though the law doesn’t recognize this as a basis for discrimination? This woman and her lawyers are not taking that chance. They are filing a lawsuit against the company for racial discrimination, which is actually recognized by federal and state law. How do we stop these things from happening when race becomes such a major topic in political debates?

Solutions

If political speech is so controversial, why not ban it from the workplace? Do we ban all of it or just what may cause employees to feel uncomfortable? Many private companies have their own regulations, but how do they efficiently regulate it? Employees donate money and time to political campaigns, post to social media, and vote outside of work on their own time. Now that we can access technology anywhere, should employers ban political speech online during work hours? Should certain websites be blocked or monitored?

What about voting privileges? Most states require employers to allow employees to take time off work to vote. Some states are stricter than others by restricting how much time can be taken off work, the amount of notice required, or by including exceptions, but employers must comply. If they have to let employees vote during work hours, can they really regulate anything else they do during this time?

For more information about voting rights in each state visit WorkplaceFairness.org.

Angelic Papacalos is a law student at American University Washington College of Law and an intern for Workplace Fairness.

State of the Union Address Barely Mentions Unions

Wednesday, January 13th, 2016

WASHINGTON. D.C.—Last night, President Obama gave his State of the Union address before a joint session of Congress—but barely mentioned unions. The president did touch on a number of issues important to workers—such as increasing manufacturing in America, taxing the rich more equitably, increasing education funding and increasing enforcement of trade laws—but said nothing about increased attacks on workers’ rights around the country during the last 12 months.

This despite 2011 being the a year in which unions (especially those representing public-sector workers) have been under unprecedented attacks in places like Wisconsin, Ohio and Indiana.

The only time Obama explicitly mentioned a union was in reference to  “Master Lock’s unionized plant” in Milwaukee, which he said is now running at “full capacity” because the company brought back jobs from overseas.

At the beginning of his speech, Obama said: “At the end of World War II, when another generation of heroes returned home from combat, they built the strongest economy and middle class the world has ever known.” However, he did not mention the fundamental role that unions played in building that middle class. Unions represented nearly one-third of all workers in the decade following World War II.

One of the only times that President Obama did indirectly to address union issues was in what could be interpreted to be a reference to wanting more “flexibility” in contract language “to replace teachers.” Obama said:

Teachers matter. So instead of bashing them, or defending the status quo, let’s offer schools a deal. Give them the resources to keep good teachers on the job, and reward the best ones. And in return, grant schools flexibility: to teach with creativity and passion; to stop teaching to the test and to replace teachers who just aren’t helping kids learn. That’s a bargain worth making.

While some could interpret this language as attacking the contract clauses of teacher union contracts, American Federation of Teachers President Randi Weingarten did not see this as an anti-teacher union statement, telling In These Times, “I heard a different tone about what teachers and students need—as well as what he has always said about teacher accountability.” Weingarten further praised the speech, saying that it was about “fighting for the middle class, for economic fairness, taking on the banks, telling others to stop bashing and leading with accountability—it’s an important populist message for the times we are in. I think the president deserves that acknowledgement.”

The only other time that Obama referenced an event involving a union was in speaking about the role of workers (represented by the United Auto Workers union) in helping to revive the auto industry. Obama said: “In exchange for help, we demanded responsibility. We got workers and automakers to settle their differences. We got the industry to retool and restructure. Today, General Motors is back on top as the world’s number one automaker.”

While praising GM’s return to profitability, Obama did not mention how, despite the auto industry returning to profitability, the industry has done nothing to eliminate a two-tier wage system that was implemented as part of the bailout. The UAW did not return request for comment on the president’s section of the speech.

“There is little or nothing in this speech to oppose what most employers are doing; cutting jobs, busting unions, slashing wages, liquidating benefits, and running roughshod over workers in every way possible,” said UE Political Action Director Chris Townsend. “As for workers, we are forced to work for a poverty existence at a “competitive wage” until we tipple into the grave. How inspiring is that?”

Kim Bobo, executive director of Interfaith Worker Justice, criticized the speech for failing to emphasize the importance of protecting living standards and workers’ rights. “We need a national jobs policy that creates enough jobs for all those who are able to work, raises core standards around living wages and family-supporting benefits, stops and deters wage theft, and ensures that public and private sector workers have the right to collective bargaining,” she said in a statement Wednesday.

But despite the lack of positive references to the role of unions and organized labor, the speech did receive good reviews for Obama’s calls to renew America’s manufacturing sector, enforce trade laws more fairly, crack down on Wall Street, and reform tax laws to tax wealthy people at higher rates. (Billionaire Warren Buffet’s secretary was actually present for the speech to symbolize America’s dysfunctional tax code; her boss actually pays a lower tax rate overall than she does.) Specifically, he called for the creation of a “Trade Enforcement Unit that will be charged with investigating unfair trading practices in countries like China.”

AFL-CIO President Richard Trumka said:

President Obama’s speech tonight shows that he has listened to the single mom working two jobs to get by, to the out-of-work construction worker, to the retired factory worker, to the student serving coffee to help pay for college. …And tonight he made clear that the era of the 1% getting rich by looting the economy, rather than creating jobs, is over—what a contrast to the vision presented by presidential candidates squabbling over how much further to cut the taxes of the 1%.

The call for reviewing manufacturing and cracking down on unfair trade practices drew particular praise from United Steelworkers (USW) President Leo Gerard. He said:

President Obama has listened to us as American workers and laid out a vision of the America we want and need, one that creates jobs and prosperity for us and not the 1% who have looted the economy….The President’s commitment to discourage job outsourcing and promote insourcing is a ticket to a better economy.

We especially applaud the announcement to renew his policy to get tough on trade enforcement with a new unit to bring together resources and investigators from across the government to go after unfair trade practices in countries around the world, including China.

The GOp chose Indiana Governor Mitch Daniels to deliver the party’s response to the State of the Union address. Daniels has spearheaded the effort to pass “Right-to-Work” legislation in Indiana, which would weaken private-sector unions. On its website, the AFL-CIO said the choice of Daniels sends a “clear signal the party is making attacks on working people a top priority in the 2012 elections.”

Surprisingly, though, Daniels didn’t say anything about unions. At least from my perspective last night, it was as if the massive fights for collective bargaining rights we witnessed in Wisconsin and Ohio last year (which, of course, continue in Wisconsin) never even happened.

Full disclosure: the UAW and USW are In These Times sponsors.

This blog originally appeared in inthesetimes.com on January 13, 2016. Reprinted with permission.

Mike Elk is a labor journalist whose investigative work has been cited on the front page of the New York Times and debated by Whoopi Goldberg and Barbara Walters on ABC’s The View. Elk won a Sidney Award for his coverage of how corporations crafted legislation to exempt prison labor from U.S. minimum wage laws.  Elk has also written for the New York Times, the Washington Post, Reuters and The Nation and is currently a reporter at Politico.

Obama: The First Farewell

Wednesday, January 13th, 2016

The common sense was a necessary corrective to the stuff and nonsense of the political campaign trail. Noting the progress made in recovering from the Great Recession, the president reminded that the U.S. economy is the “strongest and most durable in the world,” now enjoying the longest streak of months with jobs creation in its history.

In contrast to the hysteria generated by the Trumped-up campaign, he said that the U.S. is the “most powerful nation on earth.” Its military has no competitor; “It’s not even close.” He sought to put the fears fanned by the ISIS and the acts of terror in perspective. We’re threatened less “by evil empires, more by failing states.” ISIS and Al Qaeda terrorists can create terrorist acts across the world. But this is not “World War III,” and it is a disservice to call it that. The terrorists are violent thugs but “do not threaten our national existence.” Needless to say, Republicans immediately panned this common sense and revved up their hysteria. Good sense is a first casualty of terror.

The president celebrated the reality that he has begun to transform our energy policy and essentially declared victory in the debate over climate change. The debate is over. The world was acting together to begin to address climate change. And America is leading, with the president claiming that we had cut carbon pollution more than any other country on earth.

If the economy is so strong, why are the people hurting? Here, Obama reiterated his passive voice populism. Americans “feel anxious” because we live in a time of “extraordinary change.” Technology is transforming our economy in “profound ways.” That’s why workers have less leverage, companies less loyalty, wealth and income is more concentrated. We have to make change our friend, and navigate its currents. He then offered a sensible, if modest, agenda on education, extending shared security guarantees, greater support for the working poor.

But technological change has always been with us. Globalization is the result of policy, not an act of nature. Yes, we have to navigate the changes wrought by technological change. But the reason Americans are “anxious” is that the rules have been rigged to favor the few, not because technology mandates less worker leverage or company loyalty.

The president did offer a dollop of more active voice populism later on, an unstated tribute to Sens. Bernie Sanders and Elizabeth Warren, when discussing the fierce debate over “what role government should play in making sure the system’s not rigged in favor of the wealthiest and biggest corporations.”

“Working families won’t get more opportunity or bigger paychecks by letting big banks or big oil or hedge funds make their own rules…Food stamp recipients didn’t cause the financial crisis; recklessness on Wall Street did. Immigrants aren’t the reason wages haven’t gone up enough; those decisions are made in boardrooms…”

“In this economy, workers and start-ups and small businesses need more of a voice, not less.”

Yet this populist frame led nowhere. The president offered no agenda for empowering workers, no pledge of executive action to give government contract workers the right to join a union. Instead he pledged only to “lift up many businesses” that are doing the right thing.

Similarly on foreign policy, after stating the fact that we are the most powerful nation in the world, the president argued that our challenge is how to exercise leadership without pretending to police the world. Sensibly, he argued this would require a sense of priorities. Yet, he suggested that the U.S. would be on patrol against instability in the Middle East, Afghanistan and Pakistan, Ukraine, Central America, Africa and Asia. The challenge was to mobilize allies to “pull their own weight” in acting with us. But if the U.S. is on guard across the world, then it isn’t surprising that our “allies” as in the Middle East have their own priorities and are happy to let us do the heavy lifting elsewhere.

The president returned, somewhat wistfully, to the themes that launched his presidency – the need to recover our sense of one America, to overcome partisan division and discord, the strengths and spirit that sustain us as a nation. In doing so, he reminded us of the historic nature of his presidency, and of the dignity and decency with which he has borne the burdens of office.

He also used this theme to call for us to “fix our politics,” to change the system so people don’t think it is rigged in favor of the rich or the powerful or the narrow interests. That requires changing how we draw congressional districts, reducing the influence of big money, and making voting easier, rather than harder. The president pledged to spend part of the next year supporting these reforms at the state and local level, even while pushing against the wall of opposition at the national level.

Obama knows how to deliver a speech. Like Lincoln, he uses logic and common sense to stake his position and make his case. He has an author’s care about language. But in trying to describe our common ground, he has chosen not to “litigate the past,” either on our economic course or on our foreign policy follies. At a time when Americans had to learn clearly how failed conservative doctrines had led us into the fix we are in, the president chose not to issue the indictment. That was true at the start of his administration as he inherited a failed war and a collapsing economy. And it is true as his term draws to a close, despite the unrelentingly bitter partisan and ideological opposition he has endured.

This blog originally appeared in ourfuture.org on January 13, 2016. Reprinted with permission.

Robert Borosage is a board member of both the Blue Green Alliance and Working America.  He earned a BA in political science from Michigan State University in 1966, a master’s degree in international affairs from George Washington University in 1968, and a JD from Yale Law School in 1971. Borosage then practiced law until 1974, at which time he founded the Center for National Security Studies.

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

Monday, February 24th, 2014

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.

Your Rights Job Survival The Issues Features Resources About This Blog