We live in politically charged times. Protests against police brutality initiated after the deaths of George Floyd and other people of color have touched every major city in this country. These occur at a time when our country is already becoming more divided in a particularly contentious election year. Adding to this is an extraordinary rise in unemployment brought on by the coronavirus pandemic. Its been a challenging year in many ways.
As businesspeople struggle to survive in this environment, they face new and perhaps unprecedented legal issues. Many business owners find themselves trying to walk the line between support of their employees during peaceful protests, while also retaining their legal rights to terminate employees should they commit acts in violation of company policies.
This article briefly touches on some laws to consider as you navigate your company through these issues.
First Amendment
The First Amendment protects a citizen’s right to gather in legal protest. Whether you agree with any or all of the issues that your employees are supporting, an employee may demonstrate or express political views without reprisal, as long as it does not occur on company time or using company technology or materials.
Active Employer Support
If you wish to support your employees by encouraging them to participate in political action, you may do so. Just don’t force them. Do not pressure them to take part in any political action, nor demand they take a certain position on any issue.
Public Criticism of your Company
Freedom of speech is a constitutional right. And like all constitution rights, it has limits. Many companies have stepped up publicly to show their support of certain political causes, either through significant largess, or public statements, or both. If your employees don’t agree with your company’s actions, or don’t feel like the company is doing enough, their public comments may be actionable in certain limited cases. If an employee discloses trade secrets, misrepresents the company’s views, or engages in conduct that causes significant harm to the company, you have cause to take action.
Terminating Employees
At-will employees have few legal protections if an employer decides to fire them. It becomes a problem, however, if employees are treated differently based on their views, race, ethnicity, or other protected areas. If an employee is arrested and does not show up for work as scheduled because they are behind bars, a violation of your leave and absence policy may provide sufficient cause. You may want to consider the cause of that arrest. An employee caught breaking a curfew while engaging in a peaceful protest might garner a different result than one arrested for violent conduct.
Conclusion
As employers wrestle with these difficult issues, consider whether your ability to do something translates into your necessity to do something. Studies have shown that certain ethnic groups have been disproportionately hit by the pandemic, have historically faced high unemployment, and are profiled for different treatment by the police. Being proactive, providing employees with voluntary opportunity to discuss their views, and demonstrating empathy may produce better results. Contact CASHMAN LAW today for a free consultation to see how we might help you navigate these important issues.
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