Over this past weekend, we saw public protests in nearly every U.S. city, and these protests are now spreading across the Atlantic to European countries. While the video of George Floyd may have sparked these protests, there is a lot of fuel for them. Not only were there reports of significant incidents of racial inequality that preceded Mr. Floyd’s death, but after nine weeks of unemployment and illness hitting communities, there came a breaking point. Understandably, many have high emotions right now. How do you create a workplace where you can effectively address these types of issues and move forward?
Leaders’ Deeds and Words
Employees take their cues from the leaders in the organization. What behavior are your leaders exhibiting? What information and assurances are leaders offering to employees? Because many employees are working remotely, how is this message going out? There are leaders setting good examples to emulate. Twitter and Facebook are full of tweets and posts from leaders from large organizations that are expressing solidarity for protesting unjust actions and making sure employees are safe at the same time. Amazon is limiting deliveries to protect employees. Target stores are closing in some areas and keeping employees paid in the meantime. Other organizations are allowing employees to clean up damaged public property and take this as paid volunteer time.
Relevant Legal Considerations
When employees express concern about this issue in the workplace, it is important to know how to handle this in advance. Look at your policies concerning workplace communications and harassment and make sure they are in order. We have handbook samples and FYIs on our website, and members have access to these. If employee disputes in the workplace about the protests generate disruption in the workplace or complaints of illegal harassment, employers must respond. If there is a dispute between employees, a neutral person, often from HR, should speak to both employees to determine the cause of the dispute and how to resolve it. If you have a complaint of harassment due to this issue, manage it quickly. Find out the particulars of the complaint and determine what you will do to investigate. Employers Council attorneys can talk you through an investigation or do it for you, depending upon the circumstances.
While employers may be able to regulate employee activities during worktime or at the workplace, they should exercise caution in disciplining employees for political behavior outside of work. A small number of states, including Colorado, have laws protecting employees from being terminated for legal, off-duty activities. While there are some exceptions to that law, it is an area that employers should approach with caution. Public sector employees have constitutional rights in the workplace, including freedom of speech. Know, however, that this right is limited by the employer’s need to efficiently operate the workplace so that public employers can enforce some restrictions. Keep in mind that if an employee is expressing an opinion outside of the workplace and not speaking as an employee, the protections are much more substantial. As with other conduct policies, should you choose to have restrictions on this type of conduct, it is best to include guidance in your employee handbook.
Protections for Employees Affected by the Protests
Employers must be mindful of well-established protections for employees who are affected by protests. You may have employees who joined protests or other demonstrations while they were not at work. Generally, this is not an activity that should endanger someone’s job for several legal reasons. Two are discussed above, and employers should be wary of discrimination as well.
If an employee is arrested and briefly jailed, think carefully before discharging the employee. The arrest may or may not be valid, and employers subject themselves to liability when they refuse to hire or discharge employees for an arrest record alone. Understanding what happened and what the charges are is the first step in deciding; this is an excellent time to reach out to attorneys at Employers Council for their advice and consultation.
If an employee is injured on the job due to unrest, the employee is most likely covered by workers’ compensation. Any injured employee should be encouraged to file a first report of injury so that an appropriate assessment can be made. Injuries should also be added to the OSHA 300 report (posted annually) if it is appropriate to do so.
An employee who does not feel safe coming to work due to the protests, treat this the same way you have been for the coronavirus. Listen to the employee to find out why they do not feel safe. Explain precautions you are taking and determine if more need to be taken, depending on the information you are receiving from one or many employees.
Employers who have leaders who can assess situations and show their best selves are in a better position. Those with Human Resources staff who work to create clear guidelines and policies and then know how to implement them in difficult times will struggle less. Employers Council is with you every step of the way as you create a workplace that can move forward.