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Companies Can Support Protesting Workers, But Fire Them, Too

June 3, 2020, 10:10 AM

Businesses are taking steps to support their workers during protests against police brutality after the death of George Floyd, while also retaining the legal right to fire workers who participate if they disagree with their actions.

Companies like Citigroup Inc., JPMorgan Chase & Co., Netflix Inc., and Nike Inc. already have spoken out in support of the nationwide protests. Employers should check in with workers of color, remind workers of their access to benefits, disseminate thoughtful messages from key executives, and perhaps offer paid leave, even if not required to do so, according to academics and management attorneys.

On the flip side, workers have few legal protections if an employer decides to fire them for protesting outside of work.

The protests against police brutality, brought on by racially tinged deaths involving the police, are erupting in a country already tense because of the unprecedented spike in unemployment brought on by the coronavirus pandemic. African-Americans in particular have been disproportionately hit by the pandemic and historically have faced high unemployment and police brutality. Recent events are forcing these issues to the forefront for businesses.

“In moments of national tragedy employers, not employees, should lead and provide support,” Shirley Lin, an acting assistant professor at the New York University School of Law, said in an email. “This kind of leadership is an important model for thoughtfulness and compassion for everyone in the workplace. Finally, it clearly signals that bias and harassment will not be tolerated.”

Comes From the Top

Employers’ efforts to listen to workers must start at the top, said Daniel Prokott, a Minnesota-based partner with Faegre Drinker Biddle & Reath who consults employers on these issues.

“There needs to be heightened leadership at the highest level of the company,” he said. That means communication coming from high-level executives explaining exactly what steps the company is taking to support its workers, while expressing empathy and demonstrating personal engagement and awareness of the complex issues being protested.

“The empathy is important, but to show empathy is to hear what others have to say,” Prokott said.

Corporate boards might be another path for companies to demonstrate their support for workers of color—similar to how the rise of the #MeToo movement forced executives and boards to reckon with harmful workplace cultures and inequities, said Preston Pugh, an attorney with Miller & Chevalier in Washington.

“Companies should be asking: How can our company do a better job of embracing communities of color now and in the future? What does our leadership look like in senior operations? Do black and brown employees feel they have a voice to shape the future? How do you do that? Are these voices being given equal weight?”

Tap Existing Benefits

Ann Juliano, a professor at Villanova University’s Charles Widger School of Law, said the simplest place for employers to start is to ask their workers of color how they are, and then listen to the responses. Businesses aren’t legally required to provide additional benefits for employees, but they aren’t prohibited from doing so, she said.

“Many, many people of color are describing the exhaustion they are feeling living in these times. Employers can recognize that exhaustion and see how to help,” she said. That help might come in the form of existing mental health benefits through health insurance programs and employee assistance programs, Lin said. Paid leave could also be an option.

“Those reevaluating their policies should consider offering paid leave beyond what they’re legally required to do, and take the opportunity to train managers about employees’ rights to medical leave to care for themselves and family members,” she said.

Employment Risk

Many companies will support workers experiencing higher levels of distress during this time, made worse by the recent incidents of police brutality against African-Americans. But not all employers will look kindly on workers protesting the actions.

Employers are legally permitted to dismiss “virtually all” workers for private companies for any reason, Lin said, though some protections exist at the state level, particularly against retaliation for free speech or other similar constitutionally protected activities.

Lin cited the actions of Amy Cooper, a white woman who called the police on an African-American man, Christian Cooper, in New York’s Central Park after he asked her to put her dog on a leash. Her private employer, investment company Franklin Templeton, fired her soon after the incident.

Other states protect “legal activities” outside of the workplace, such as participating in a peaceful organization, Jackson Lewis principal Matthew Camardella said. However, engaging in illegal activity, like destroying property, as part of a protest could result in termination.

There are always exceptions to the rule, Prokott said. If a worker is arrested for breaking a curfew while engaging in a peaceful protest, he said he’d advise employers to “tread very lightly” when considering whether to fire that worker.

This is a moment where companies have a choice to stand up for their employees, said Merrick Rossein, a professor at the City University of New York School of Law, calling this moment an “important juncture” in history.

“Employers and others could really grab it by the horns and say ‘OK, we’re not going to just flow with what’s going on, and we’re going to be proactive,’” he said. “We have lost sight of the employer as a public citizen.”

—With assistance from Erin Mulvaney.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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