There are two big stories in the headlines involving employee speech and the consequences thereof. If you haven't heard of both, welcome back from the coma. The most recent was Roseanne Barr's racist tweet rant, which resulted in the cancellation of her number 1 rated TV show, Roseanne. Then there has been the ongoing saga of NFL players kneeling during the national anthem in protest over the extreme number of police killings of black people. The NFL recently decided to impose penalties on teams with players who kneel, but will allow them to stay in the locker room.
So, let's first address the elephant in the room. What about free speech? I have to keep saying this, and I shouldn't: there is no free speech in the workplace unless you work for government. Even working for government, your free speech is limited.
Do the NFL players and Roseanne have any rights in this situation? Maybe.
Roseanne is a well-known star. She has a contract with the network. If she had a good agent or lawyer, she likely has a clause protecting her in this situation. If I were negotiating, I might have demanded that the network agree not to cancel the show if ratings were over a certain number. Or that the network guarantee a certain number of shows. I don't know what her contract says. However, it may also have a clause allowing the network to cancel if the stars engaged in behavior that they deemed damaging to the network. Depending on the language of such a clause, a racist rant may well mean the network was within its rights.
Had there been no contract, the network could cancel for any reason or no reason at all, because employees in every state but Montana are at-will unless there is a contract saying otherwise.
The other issue is whether the network should have canceled the show. On that issue, I have to come down in the yes column. They are now on notice of her propensity to engage in race discrimination. Now that they are on notice, if they allow her to continue and she discriminates against cast or crew, they could be liable for punitive damages. I don't see that they had any choice here. There is also the issue of sponsors. If sponsors backed out in droves, that would similarly justify the cancellation.
Now, on to the NFL. The players have a union. This new requirement that they not kneel may well violate the NFL's obligation to collectively bargain regarding terms and conditions of employment. I suspect we'll hear more from the union on that issue.
Should the NFL have done this? On the one hand, some fans were freaking out about the kneeling. But they still keep concession stands open so nobody is freaking out about buying hot dogs during the anthem. These are players quietly and respectfully protesting discrimination. There is nothing about the protest that shows any propensity to engage in discrimination like Roseanne. I, personally, would not organize a protest in a way that allowed the opposition to question my patriotism, but this is how they chose to protest, and I think they should be allowed to do so as long as they do so respectfully, as they have done. I understand the NFL's wanting to end the controversy, but I think they just managed to step it up instead.
Overall, the lesson to those of us who aren't multi-millionaires with big contracts is that there is no free speech in the workplace in America.
Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.