To Kneel or not to Kneel; What is the Question?

The recent controversy surrounding NFL players kneeling during the National Anthem raises an interesting question concerning the protection of the National Labor Relations Act (NLRA) vis-à-vis work-place protests over social issues.

Colin Kaepernick began protesting last year over his belief that minorities in this country are not treated fairly. His protest involved him kneeling during the playing of the National Anthem. His protest drew attention, but the attention was mostly focused on him and the San Francisco 49ers. What changed this year? First, more players initially took up his cause. Second, the President with a comment during a speech and later tweeted his displeasure with the protest and suggested that employment action be taken against the employees who engage in the protest and that the NFL should suffer unfavorable tax treatment if it does not force players to stand during the Anthem. Third, after the President’s involvement there was a significant increase in the number of players involved in the protest.

So do these employees enjoy the protection of the NLRA when engaging in the protests? Last year, Mr. Kaepernick’s protests were probably not protected activity. Protected activity under the NLRA requires, in a general sense, that the activity concern workplace issues and be concerted. While the football stadiums in which Mr. Kaepernick protested are indeed his workplace, his protest concerned social, not workplace issues. In addition, it appeared to be mostly a solitary endeavor. However, this year is a much different story because the President’s tweets may have brought the protests within the realm of protected concerted activity. The tweets can be read to suggest that the NFL should take job action against the protesting players. If the players are now banding together to protect each other from such potential job action, the protests can be argued to relate to workplace issues. In addition, the number of players involved shows the concerted nature of the action. As such, what started as a small contained protest may have been tweeted into protected concerted activity and ultimately protected by the NLRA.

This blog was written by Marc Sloane at Miles & Stockbridge.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.