Was Juan Williams' Termination By NPR Illegal Under California Law?

NPR announced yesterday that it had terminated "longtime news analyst" Juan Williams because of the views he expressed during a discussion of terrorism and Islam on The O'Reilly Factor.  The specific comment for which he was terminated was apparently the following:

"Look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."

NPR has stated that William's termination was justified because he violated the NPR policy that "News analysts may not take personal public positions on controversial issues." 

Given the peripatetic nature of the news business it is unclear what state law might govern Williams' employment.  (New York or DC are likely candidates).  But if NPR ever intends to fire one of its California employees for taking "positions on controversial issues," it should first consider the implications of California 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 scope of the "political" speech and conduct which is protected by Section 1102 is not limited to support or opposition to candidates or parties.  Rather, it has been broadly defined to include the espousal of opinions concerning such matters as publicly supporting gay rights or opposing union closed shop rules.  

Juan Williams' positions (or alleged positions) thus seem to fall squarely within the definition of protected "political" speech -- indeed, NPR's position is that he was fired precisely because his positions were deemed too "political" and "controversial."  California employers should therefore think twice before emulating NPR's conduct in this episode.

Class of Newspaper Reporters Entitled to Overtime -- Wang v. Chinese Daily News

The Ninth Circuit's Decision in Wang v. Chinese Daily News is an important decision on several levels.  One of these is to demonstrate just how difficult it can be for an employer to prove a defense to overtime under the professional exemption.   

The Chinese Daily News argued that its reporters qualified as exempt "creative professionals," because their primary work duties required "invention, imagination, originality or talent in a recognized field of artistic or creative endeavor as opposed to routine mental, manual, mechanical or physical work.” 

As the court explained, however, "newspaper reporters who merely rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals."  Rather, exempt duties include "performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator."  

In short, the difference is between being a mere conduit for facts and being an investigator, analyst or interpreter of those facts.  The Court opined that this "creative professional" standard should only apply to the "small minority of journalists" who work at national papers such as "The New York Times" or "Washington Post."  But reporters at "small or unsophisticated" "community" papers such as the Chinese Daily News in Monterrey Park are presumably not exempt professionals.   

I have to imagine this is a slightly bitter-sweet victory for the reporters.  On the one hand, they won the right to collect back overtime pay.  On the other hand, the Ninth Circuit has essentially declared that, as a matter of law, they are a bunch of "unsophisticated" hacks who can't pretend to the title of a "professional" journalist.  In the law it's sometimes impossible to eat your cake and have it, too.