Tackling political speech in the workplace: What we can learn from Chris Kluwe 1

Tackling political speech in the workplace: What we can learn from Chris Kluwe

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By Nicolas Orihuela

Chris 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.

Nicolas Orihuela

About Nicolas Orihuela

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.

Getting a job should not require giving up an important constitutional right 1

Getting a job should not require giving up an important constitutional right

http://www.dreamstime.com/stock-photography-contract-image29003522By Nicolas Orihuela

Imagine if a private individual, paid by the wealthier or well-connected party in a dispute, got to decide if the government had the right to curtail your free speech, or if an employer could terminate you because of your religious beliefs, or if the police had the right to abuse your fellow citizens, would you want this system of justice?  Of course not — the deck would be stacked against you at the start.

That’s what happens to employees who are forced to sign an arbitration agreement, which is that buried clause in the employment contract that requires all employment disputes to be resolved through arbitration as opposed to the traditional civil justice system.  In a recent study concerning employment arbitrations before the American Arbitration Association, one of the largest arbitration service providers in the country, the win rate of employees was a meager 21.4% (compared to a win rate of 36.4% in federal court and a win rate of 59% in California state court).  That same study revealed that in arbitration employees tend to obtain smaller awards compared to employees who prevail in jury trials.  Also, as the paying customer of these arbitrators, employers tend to improve their win rates in arbitration by using the same arbitration service provider multiple times (known as the “repeat player” effect).  Under one analysis, the win rate among employees drops from 23.4% to 12.0% when there is a repeat employer-arbitrator pairing.

In today’s world where arbitration agreements are becoming ubiquitous, getting a job now often means signing away your Seventh Amendment right to a jury trial.  The founders of our country, who knew this right was vitally important to a democratic republic, wrote it into the original Bill of Rights, along with the right to freedom of speech, the right to bear arms, and the right to an attorney in a criminal case.  The Seventh Amendment was no accident.  The right to have your peers sit in judgment of your civil case was considered indispensable to a functional democracy and a powerful check on the government and the well-connected.

In the courts, employees are not going down without a fight.  Many battle their employers for the right to be heard in civil court.  But victory is not assured..  The question of whether the courts will respect the Seventh Amendment or side with employers’ one-sided agreements is still undecided.  The question may soon come to a head in the California Supreme Court.

Recently, the California Supreme Court granted review in two cases that exemplify what is wrong with arbitration agreements forced upon employees.  In Leos v. Darden Restaurants, Inc., a female employee was subjected to workplace sex harassment.  When she filed a complaint in civil court, the employer argued that an arbitration agreement forced upon her at the beginning of her employment required her to submit her claims to arbitration.  As is typical of many, it favored the employer, who retained the right to amend or modify the agreement at any time, placed barriers on the employee’s ability to obtain information essential to reveal evidence of wrongdoing, and exempted arbitration claims that only the  employer could  pursue against the employee.  While the Court of Appeal agreed that the arbitration agreement was unfairly forced upon the employee, it still concluded that the employer was entitled to enforce it.  If this is not unfair, then what is?

Leos is to be decided together with Baltazar v. Foreover 21, Inc., a sexual and racial harassment case involving a similar forced arbitration agreement: The employee was told, “sign it, or no job.”  As in Leos, the agreement  covered only claims that an employee is likely to bring  (e.g., discrimination claims, wage and hour claims, etc.).

Both Leos and Baltazar represent the typical scenario that employees face on the first day of a new job. These court of appeal rulings represent a troubling trend towards overlooking the real world disparities in power that produce unfair arbitration agreements.  While both courts agreed that the  agreements were unfairly forced upon the employee, they still held that they  were enforceable contracts.

In both cases what is at stake is much larger than contract interpretation and defenses to contract formation.  What is at stake is preserving  employees’ Seventh Amendment right to a jury trial and preventing the unfair and biased process of forced arbitration.

It’s now up to the California Supreme Court finally to say what is obvious — forced arbitration agreements are an abuse of power that violate employees’ constitutional rights — and to act accordingly, by refusing to enforce them.

Nicolas Orihuela

About Nicolas Orihuela

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.

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