This One Simple Trick -- Used by Colin Kaepernick -- Will Make It Harder To Fire You

Years ago, in Ventura County California (where I am thankfully no longer doing business), a loyal employee approached our manager and told her of a meeting that had been held the night before for our employees at a local attorney's office.  The attorney was holding the meeting mainly because he was trying to drum up business, brainstorming with my employees how they might sue the company for a variety of fanciful wage and hour violations.  Fortunately, we tend to be squeaky clean on labor compliance, and the only vulnerable spot they found was on California break law, where shifting court decisions gave them an opening to extract a bit of money from the company over how we were managing lunch breaks.

Anyway, in the course of the meeting, the attorney apparently advised our employees that if they ever thought they were about to get fired, they should quickly accuse someone in the company of harassment or discrimination or some other form of law-breaking.  By doing so, they made themselves suddenly much more difficult to fire, and left the company open to charges of retaliation if the company did indeed fire them.   In later years, we saw at least two employees at this location file discrimination or harassment claims literally hours before they were to be terminated for cause.   Since then, I have seen this behavior enough, all over the country, to believe that this is a strategy that is frequently taught to employees.

This terrible advice is obviously frustrating not only because it makes the firing process harder, but also because these charges all still have to be investigated seriously, a time-consuming process that has to involve me personally by our rules.   On at least two occasions that I can remember, we delayed a firing for cause by several weeks to complete investigations into what turned out to be bogus charges, only to have the employee do something really stupid in a customer reaction during these extra weeks that had substantial costs for the company.

Anyway, I was thinking about this in the case of Colin Kaepernick, the NFL quarterback currently employed by the 49ers but expected by many to be released (ie fired) in the coming weeks.  Last weekend he stirred up controversy when he refused to stand for the national anthem to protest treatment of blacks in America.   Personally, I barely noticed, as I am not a big fan of enforced loyalty oaths and patriotic rituals, finding these to historically be markers of unfree societies.  For these sorts of rituals to have any meaning at all, they have to be voluntary, which means that Kaepernick has every right to not participate, and everyone else has every right to criticize him for doing so, and I have the right to ignore it all as tedious virtue-signalling.

I mostly yawn and change the channel over all this, but it did make me wonder -- Kaepernick has to know that he is potentially on the chopping block.   Many folks believe that his performance last year was not good enough to earn a job on the 49ers this year.  It has been discussed on national TV for weeks, and probably for months in the local San Francisco market.  If he were to be cut, it would likely be in the next 7 days or so by the schedule the NFL sets for finalizing rosters.   So I wonder if part of Kaepernick's action the other day was to make it harder to fire him.   He and his supporters can now portray his firing as retaliation for his support of Black Lives Matters, something that would be an uncomfortable perception for any high profile organization in America but particularly in San Francisco.


  1. mk:

    Oh, man. This one gets my vote for most succinct summation of the year:

    "Personally, I barely noticed, as I am not a big fan of enforced loyalty oaths and patriotic rituals, finding these to historically be markers of unfree societies. For these sorts of rituals to have any meaning at all, they have to be voluntary, which means that Kaepernick has every right to not participate, and everyone else has every right to criticize him for doing so, and I have the right to ignore it all as tedious virtue-signalling."

  2. jdgalt:

    Why aren't these lying employees sued for, if not charged with, fraud after the cases they bring are dismissed? For that matter the Ventura County DA should be charged for suborning fraud.

    As for Kaepernick, another list reports that he is protesting because he has converted to Islam. Trump is right: America doesn't need him.

  3. J_W_W:

    While not standing during the national anthem is Kaepernick's right, and I think you may have nailed his reasoning, I see a bigger problem brewing.

    I am beginning to believe this will be a thing we see more of in the future.

    Imagine this picture at this sporting event; A Nascar race. As the national anthem plays, all the fans remain seated. This would be an action that should rightfully shock the nation. When the time comes that the most patriotic Americans will refuse to stand for the anthem, you will know the country has been divided so badly that it will not be salvageable.

    This day is coming. The wages of the division being sewn will come due. The cost will be very high.

  4. ErikTheRed:

    Seriously. Most of us have moved on to more meaningful distractions, like what on earth Harambe knew about Hillary Clinton...

  5. Hal_10000:

    I'm not 100% sure how NFL contracts work but I think that the 49ers would take a huge hit to their salary cap if they cut Kaepernicke, some $7 million if I read the websites correctly.

  6. SamWah:

    They could trade him to Baltimore, where the fans might possibly like his sit-down stand.

  7. joe:

    I agree that his escapade will make it harder to cut him from the final roster, though I doubt that was his intent - that would be giving Kaep too much intelectual credit

  8. slocum:

    There was a French farce with a similar plot line (Daniel Auteuil's character comes out as gay to avoid being fired):

  9. joe:

    I see a bigger long term systemic issue

    Since the advent of the Johnsons Great Society, the black community has split primarily into three large groups. Prior to the the johnson administration most black families were intact, hard working and proud of their accomplishment inspite of the institutional discrimination they faced.

    Subsequent to the advent of the great society, one large segment moved beyond the discrimination and became part of the middle class, another segment became quite sucessfull and have become leaders, colin powell, clarence thomas, etc.
    Unfortunately, a large segment refuses to move beyond race, the blame game, give me whats due, you owe me attitude.
    pandering to this segment does a long term disservice to the entire black community.

  10. jdgalt:

    The "Great Society" also gave us a huge poverty problem, by subsidizing useless people to breed. The resulting kids have no future, and if they keep coming, neither do we.

  11. Rewired actuary:

    Apparently, he has been on this kick for some time. Besides his allegiance to a dishonest movement, this was a real dumb career move. His performance has been declining and he is making himself a pain in the ass.

  12. Dan Wendlick:

    I think the intent was to make himself pretty much untradeable. The Niners had basically two options - pay him $10 million to carry a clipboard, or trade him to a team that suddenly found themselves in need of a veteran QB (Dallas, Minnesota, et al.). By pretty much announcing that he's going to be locker room poison (and that he's got some advisors who are not in it for his career best interests) anyplace he isn't guaranteed a starting spot, he's taken the trade option off the table.

  13. Bruce Zeuli:

    I suspect that these employees had a difficult time finding new employment if these matters are public record. So in these cases they received bad legal advice that will likely harm them in the long term.

    Unfortunately this same harm often hits wistleblowers even when they report on truely harmful or clearly unlawful behaviors. But in todays climate you are more likely to face prosecution as a wistleblower than as a perpetrator.

    To me these are related. Prosecuter want to show a record of successful prosecutions. So do they go after the low hanging fruit or try to take down powerful agencies and corporations? I think the evidence speaks for itself.

  14. morganovich:

    this is sort of tangential, but i think one aspect gets left out of this: as a private citizen, you have no obligation to stand for an anthem. but, as an employee, you can be held to different standards. this is common in just about every job.

    you are free, in your free time, to stand in a public place and hand out pamphlets about the interstellar alien-mormon-zionist cabal and it's nefarious plot to rig the price of strawberries.

    but even as a lowly snack bar clerk at a country club, your employer can demand you not do so. they can demand that you wear a shirt with their logo. they can premise your work on all sorts of things.

    this is not kap acting as a private citizen. it's kap performing the job for which he was hired and paid. he is, at core, an entertainer. his job is to put butts in seats. the minute he starts jeopardizing this, that ought to be actionable. you can fire him, for cause, and not pay.

    yes, yes, i know that is not what the law says (especially in CA), but my point is that it OUGHT to be.

    a right to free expression does not mean you can do it in my workspace or coyote's house. if your speech annoys us, we can ask you to leave. that too is a right and, in a just system, would be protected by law.

  15. ano333:

    "When the time comes that the most patriotic Americans will refuse to stand for the anthem, you will know the country has been divided so badly that it will not be salvageable."

    But if the "most" patriotic Americans are not standing, that implies that all "less" patriotic Americans already were not standing. If that is the case, it seems that the country would not be divided, but would actually be united in their lack of standing for the anthem...

  16. ano333:

    Donald Trump encourages people to speak their minds and eschew political correctness. Unless those people are Colin Kaepernick, apparently...

  17. J_W_W:

    No, they wold be not standing for vastly different reasons. The left will not stand because they don't value America. The right will not stand because they will be done with the left's America.

  18. jdgalt:

    I agree except for your next to last paragraph -- the law does allow you to fire someone for that. (Although in CK's case his contract may have something to say about the question, and whatever's in the contract will likely be upheld.)

  19. jdgalt:

    "Most patriotic" does not necessarily imply "most likely to stand."

  20. jdgalt:

    No, Trump himself speaks his mind. I doubt his employees have that privilege on the job, if they disagree with him.

  21. randian:

    Colin is only 28, too early for age to cause his decline. My bet is he stopped doing the work required to keep himself on top. It's not clear what making himself a pariah is supposed to get him.

  22. patrick k:

    Kap is potentially on the chopping block because of his poor play for the last two years not just last year. How pathetic has been his performance? When he asked for a trade late last year only one team was interested at a huge salary cut. In hindsight the niners should have paid the difference and been done with him.

  23. Daniel Barger:

    Kaepernick is not an 'employee'. He is an independent contractor who gets paid based upon the terms of his contract with the team he plays for. Not knowing the full terms it is hard to say exactly how his stupidity will affect his pay under his current contract. It is safe to say that even if he never leaves the bench for the Niners he will still make more than you and I a large margin. However he can be released at any time the team long as they pay him per his contract.

  24. Jeffrey Deutsch:

    One of the things separating us from SJWs: We calmly look at the incentives and constraints. SJWs scream when we do that, and insist that everyone making an accusation should be assumed to be sincere -- if not completely truthful.

  25. bannedforselfcensorship:

    Psychologically, it may help him rationalize his being cut. Incentives are not always monetary.

  26. @nsmartinworld:

    Does it matter legally that where he works on government property that is leased by the team?