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By Cory D. Olson
This fall, the NFL found itself in the middle of a political fight. The issue began last year when 49er Colin Kaepernick remained seated during the pre-game playing of the national anthem. When asked, Kaepernick said he would not “stand up to show pride in a flag for a country that oppresses black people and people of color.” A few other players eventually joined Kaepernick’s silent protest by kneeling during the anthem. But by the start of the 2017 season, the protest was garnering far less attention. That’s when President and professional pot-stirrer Donald Trump took to Twitter and proclaimed that the NFL should “fire or suspend” players who kneel, a sentiment he would later repeat at a political rally.
Let’s ignore the fact that players aren’t NFL employees. Let’s also ignore the First Amendment problems of a government official calling for retribution for political protests. Instead, let’s focus on an interesting legal issue: Can a private employer legally fire an employee over a political protest? What if the activity was particularly troubling or divisive, such as attending a white-supremacist rally like the one held in Charlottesville, Virginia this past summer?
You may assume that the answer is yes. After all, Minnesota is an at-will employment state, and people who engage in politics are a suspect class. But it turns out the answer might be a bit more complicated than that.
Minnesota is one of about half the states that have laws on their books that protect employees from discrimination based on political activity, exercises of constitutional rights, or other forms of private political action. Specifically, Minn. Stat. § 10A.36 prohibits economic reprisals based on “political activity,” stating that:
An individual or association must not engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity. This subdivision does not apply to compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment. An individual or association that violates this section is guilty of a gross misdemeanor.
Although the statute punishes violations as a misdemeanor, Minnesota courts have recognized a common-law cause of action for “wrongful discharge in violation of public policy.” This includes termination in violation of “clear mandates of legislative or judicially recognized public policy.” Phipps v. Clark Oil & Refining Corp., 396 N.W.2d 588 (Minn. Ct. App. 1986). Whether the statute would meet that definition is an open question. In the forty-three years since it was passed, no Minnesota appellate court has cited the statute for any purpose, let alone to address employment issues. But South Carolina has a similar statute, and its Supreme Court held that the statute did provide employees a cause of action for wrongful discharge.
Let’s assume that Minnesota would also recognize a private cause of action. Does kneeling during the anthem count as “political activity”? How about attending a rally in support (or against) a social cause? The law is murky here too.
California, for example, has taken a broad view, holding that the term “political activity” includes supporting social causes, wearing symbols, associating with others for the advancement of beliefs and ideas, and espousing candidates and causes. In contrast, South Carolina interprets the term narrowly, extending it to only matters directly related to the executive, legislative, and administrative branches of government, such as political-party affiliation, political-campaign contributions, and voting. So while sitting for the national anthem or attending a rally would almost certainly be protected in California, it would likely be a legal basis for termination in South Carolina. Where Minnesota would stand on that continuum is unknown.
I hope you didn’t start reading thinking you’d get a simple answer, because there aren’t any. And I haven’t even addressed the question of bona fide occupational qualifications, which raises a whole other set of issues. I’m also not necessarily saying this is good policy; that’s for the legislature to decide. I can certainly see arguments on both sides. I raise the question because it is an unsettled area of law—one that, with today’s hyper-partisan climate and crusading social-media mobs, may well garner attention in coming years. Practitioners on both sides of the employment side would be wise to take note.
Cory D. Olson is a trial attorney with Anthony Ostlund Baer & Louwagie P.A., a 23-attorney litigation boutique in Minneapolis. Cory represents clients in a variety of business disputes, with a significant portion of his practice focused on representing securities professionals and firms in regulatory investigations and arbitrations. A graduate of the University of Minnesota, Cory has written and spoken on employment, shareholder and securities matters. Please visit www.anthonyostlund.com or email [email protected] for more information.