August 18, 2022

Volume XII, Number 230

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Employee Activism, Safety, and Support Amid Difficult Issues

Recent social and political controversies, such as rulings from the Supreme Court of the United States, international conflicts, and mass shootings, are likely to cause more employees to voice their opinions and frustrations both in and outside the workplace, whether through conversations, social media, or participation in marches, protests, and similar events.

Some workplaces could be further impacted by local protests, marches, or unrest that may make it unsafe for employees to go to work or remain at work. Employees may request time off because they want to participate in political and social justice events or may need mental health support. Anticipating these situations and knowing how to respond to them will allow employers to better manage these situations and engage with their employees.

Employee Activism

With regard to speech or expression in the workplace, although some employees may believe that their constitutional right to free speech provides wide protection, the First Amendment is actually somewhat limited. The First Amendment states, “Congress shall make no law … abridging the freedom of speech,” meaning the First Amendment applies to government action and not to private employers. So the speech of private-sector employees is not necessarily protected by the First Amendment—and, in fact, private employers have discretion to discharge or discipline employees for their speech, for example, inflammatory or hate speech, even when the speech occurs while an employee is off duty.

However, the First Amendment’s protections do extend to public-sector employers, making it more difficult for them to regulate employees’ speech online. Even with private workplaces, several states have laws that protect employees from discrimination for political expression and other political activities. Many of the issues arising today have a close political connection, and, depending on the specific context, speech on the issues could be classified as a protected political activity.

The National Labor Relations Act’s protection of expression regarding the terms and conditions of employment and other concerted activity could also come into play. While many of the current issues do not specifically apply to the terms and conditions of employment in a specific workplace, National Labor Relations Board General Counsel Jennifer A. Abruzzo has taken an expansive view of what speech could be protected. She has suggested in recent public statements that speech about social and economic justice is still protected speech because employers have it within their power to address some of these issues.

At the same time, employees have a right to workplaces free from discrimination and harassment under Title VII of the Civil Rights Act of 1964 and other laws. Many of the discussions of controversies in the news can be fraught. Employers may take action to ensure that employee disagreements do not turn into unprofessional, disrespectful disputes, harassment—or worse—threats and violent acts. Employers may restrict speech and other forms of expression that “cross the line,” violate codes of conduct and policies prohibiting harassment and/or discrimination, or threaten the safety and health of employees. Under many circumstances, disciplinary action and/or termination may be appropriate.

Impact on Morale and Safety

Beyond issues of employee speech and expression, local protests or general unrest may disrupt the physical workplace. For example, some employees may commute through areas or work at locations where there are protests or there is unrest, meaning that getting to work may be intimidating, unsafe, or impracticable. Employers—especially those with multiple worksites in large cities or that may be the target of protests or potentially dangerous activity—may want to consider designating an individual to monitor events that will affect employee ingress and egress and the general safety of worksites.

Employers may want to formulate a response plan that outlines situations when employees will be asked to stay home, flexible scheduling arrangements, and, to the extent feasible, work-from-home arrangements. Such a plan may also cover whether the employer needs to secure the worksite, how the employer will handle any related wage and hour issues and whether paid leave will be available. The response plan may further contemplate emergency evacuations, how to communicate with employees about developments that affect their ability to work, and what the company will do if its worksites are damaged during protests or unrest to the extent that it prevents employees from coming to work for more than a few days.

Beyond this, there may be those who have reactions to political, social, and judicial events that, for them, interfere with their ability to work. Employers may receive increased requests from employees seeking time off or needing the assistance of mental health professionals or employee assistance programs (EPA). Employers may consider reminding employees of the resources available to them if their well-being has been adversely affected by current events. In addition, employers may grant sick time or paid time off (PTO) requests for those employees who seek time off in the wake of any particular event. In some instances, employers may need to offer family and medical leave or reasonable accommodations consistent with state and federal disability laws.

Key Takeaways

There are some actions employers can take in preparation for times of increased employee activism in the workplace. First and foremost, employers can anticipate and have a plan. An employer’s leadership, legal department, and human resources department can come together to identify various “what if” scenarios and agree on how to respond to them in addition to who will be involved in the decision-making process about what to do in each scenario. Employers can communicate with frontline managers, either to advise them of the company’s plan (depending on the scenario) or leaders to whom they can report incidents, complaints, or concerns. Additionally, employers can communicate with employees to ensure they understand, or at least are reminded, of their obligation to conduct themselves professionally while at work and know what resources are available to them if they need support.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 181
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About this Author

Suzanne L. Martin Labor & Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart Law Firm Las Vegas Nevada
Shareholder

Suzanne L. Martin started her legal career at a national labor and employment boutique in Irvine, California representing management.  She relocated to Las Vegas, Nevada, in 2003, and in January 2010, was one of three shareholders that opened the Las Vegas office of Ogletree Deakins.  She is barred in both Nevada and California, and remains active in California.

The scope of Ms. Martin’s employment law practice is wide ranging.  She provides advice and counsel, drafts employment and restrictive covenant agreements, handbooks/policies/procedures/...

702-369-6805
Senior Marketing Counsel

In the Senior Marketing Counsel role, Zachary develops strategy for the firm’s blog and other content. He serves as a lead writer for articles and blog posts for publication on the firm’s website both individually and in consultation with firm attorneys. He also works closely with the Client Services department and firm attorneys to develop relevant content, including through use of webinars, publications, blogs, podcasts, and graphics.

Prior to joining Ogletree Deakins, Zachary served as a Senior Reporter for Law360, a leading online legal news publication, covering the sports and...

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