By Kristen L. Brightmire
These are interesting times in which we are living to be sure. Political activism is seeing an uptick. On Friday, February 17, we saw the General Strike which was designed to be a nationwide protest against President Trump. Also touted as a Day without Immigrants, it was a call for persons to stop working and instead join a demonstration or participate in a service project. Another similar strike is gearing up for Wednesday, March 8.
There were other stories about how employers and employees handled these issues, and we were called upon to advise clients as well. Without commenting on any specific situations for obvious reasons, it is important to talk about this issue.
You should expect it will come up again, perhaps as soon as March 8. Before then, you should think through some of these issues and how you will respond.
First, are there any laws in play? Protesting the actions of the government is not protected activity for which you (the employer) are traditionally sued because you cannot control the actions of the government. Your employee does not have a protected right to take off work to protest. However, you need to be careful to ensure you are treating all employees fairly and consistently. You cannot appear to be favoring an employee or group of employees based upon an employee’s protected status (e.g., race, religion, gender, etc.).
Second, do you have any policies which apply? If you allow someone to have paid time off or unpaid time off based upon certain rules, apply those rules. Again, this goes back to fair and consistent treatment of all employees.
Third, be practical. Now, this is not lawyerly advice per se, but it is important. You must follow the law; that is a given. Once you have assured yourself you are in compliance with the law, you must also be practical. There may be times when you see a situation developing and you make a business decision. For example, if you run a business, let’s say a restaurant, in which the majority of your staff is comprised of legal immigrants, you may want to be proactive about the Day Without Immigrants. You may want to devise a strategy to permit some or all of the workers to participate in the protest if they choose. You may want to show your support of your workers as part of your commitment to them. You may choose to close down for that day or, alternatively, you may choose to stay open but contribute some percentage of the day’s receipts to a charity of the worker’s choosing. You get the idea.
If you are completely opposed to the views of your workers, that is also your right. If you plan to stick to the policies or not permit the absences, it would behoove you to have a plan in advance for communicating that in a clear but not inflammatory way. Firing people for attending these protests can quickly lead to lawsuits and, if not handled correctly, can provide an employee with evidence of bias or animus. Don’t create bad evidence for your business because you had kneejerk reactions you could have avoided.
Regardless of the passions running high, employment law advice remains the same. Be able to articulate legitimate non-discriminatory, non-retaliatory reasons for your actions. If you cannot, you should re-think it.