Most of us work in “employment
at will” states. In these states, an employer can terminate the employment
relationship for any reason, no reason, or a bad reason—as long as this doesn’t
break the law.
But before an employer in
California enforces a “No Nike” rule the boss needs to read Labor Code
Section 1102: “No employer shall coerce or influence
or attempt to coerce or influence his employees through or by means of threat
of discharge or loss of employment to adopt or follow or refrain from adopting
or following any particular course or line of political action or political
activity.”
The law is
as clear as mud as it applies to this new terrain of the Trump-Kaepernick
Maginot Line.
If the employee wears Nike for non-political reasons, the labor code doesn’t apply and she can be fired.
But if she wears Nike as a form of political expression, Labor Code 1102 seems to be implicated.
If the employee wears Nike for non-political reasons, the labor code doesn’t apply and she can be fired.
But if she wears Nike as a form of political expression, Labor Code 1102 seems to be implicated.
Other states have laws
like Section 1102—for example, Connecticut.
If you want to read an
excellent overview of this complicated subject, check out this 2007 article, Dianne Avery &
Marion Crane, "Branded: Corporate Image, Sexual Stereotyping, and the New Face
of Capitalism," Duke Journal of Gender Law & Policy (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=djglp).
In an excerpt, they state:
We
show how the adoption of increasingly sophisticated forms of marketing and
branding strategies by service businesses creates property-like
interests--separate and distinct from workers' physical and mental labor-- from
which employers profit: branded service.
We then analyze the role that law has played in reinforcing the practice of branding. In particular, work law defers to managerial prerogative to construct the business image and to control the workforce as the public face of that image, affirming the employer's power under the doctrine of employment at will to command adherence to appearance codes. The combined effect of the employment-at-will rule and workers' lack of bargaining power at an individual level thus permits employers to extract this additional value from workers above and beyond the compensated value of their labor, without cost.
We then analyze the role that law has played in reinforcing the practice of branding. In particular, work law defers to managerial prerogative to construct the business image and to control the workforce as the public face of that image, affirming the employer's power under the doctrine of employment at will to command adherence to appearance codes. The combined effect of the employment-at-will rule and workers' lack of bargaining power at an individual level thus permits employers to extract this additional value from workers above and beyond the compensated value of their labor, without cost.
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