employee protests – Workforce

June 4, 2020June 29, 2023

Can you force employees who participate in George Floyd protests to quarantine without pay?

Yesterday I discussed the legalities of placing on an unpaid leave of absence employees who engaging in leisure mass gatherings outside of work.

What about employees who you discover gathered in mass to protest George Floyd’s murder and racial injustice? There are legitimate concerns that the mass protests taking place in cities around the country will cause an acceleration of COVID-19 spread and a spike in cases. Can you place protesting employees on an unpaid leave of absence to quarantine before they return to work?

The TL;DR answer is “yes.”

The longer answer has a couple of key exceptions and other nuances.

1/ Public employees enjoy some First Amendment protections work. In the private sector, Connecticut prohibits employers from disciplining or firing employees for exercising their First Amendment rights. California, New York, and the District of Columbia ban political affiliation and activity discrimination. New Mexico and South Carolina ban discrimination based on political opinions. And Colorado and North Dakota more broadly limit an employer from restricting any lawful off-duty activities by employees. In any of these cases, I’d have concerns about taking an adverse action against an employee for participating in a peaceful political gathering. (For rioters and looters, all bets are off no matter what.)

2/ Title VII might offer additional protections for protesters, but only if an employer treats employees of one race (say, for example, its African-American employees) more harshly than employees of another race. If an employer treats all employees the same by requiring anyone protesting to take a mandatory two-week unpaid leave of absence, then Title VII won’t offer much help.

3/ The National Labor Relations Act’s protections for employees who engage in “protected concerted activity” likely have zero application, for the reasons I discuss here.

This issue, however, is a lot more nuanced than, “The law says I can send employees home without pay while they quarantine, so I will do so for anyone engaging in behavior outside of work that placed them at risk for COVID-19.” There is no easy answer to this question. I believe that you are taking a risk of injecting COVID-19 into your workplace if you allow these employees to return to work on the heels of protesting (no differently than returning a weekend mass-gathering partier). The question is whether you pay them for their time off. You have two options, which depend on where you come down on the safety vs. racism spectrum:

1/ Treat George Floyd protesters no differently than any other person who gathers in a large group outside of work by sending them home for two weeks without pay. The safety issues are identical. Mass protesters could turn into super-spreaders of the virus, including in your workplace. We are still in the midst of a pandemic, and no matter how large of a problem system racism is, and no matter how awful George Floyd’s murder was, we cannot lose sight of the big coronavirus picture, lest we have another spike in cases and lose even more lives.

2/ Pay George Floyd protesters for their mandatory leaves of absence. These employees were not getting their weekend jollies on, but were exercising their political dissent over a vitally important issue. You can take a stand as an employer against the racism over which they were protesting by paying them for their mandatory LOA quarantine. It also prevents your company from being painted as pro-racism by a viral online mob based on a perception (accurate or not) that you are punishing these employees for protesting this important issue.

Me? I’m longing for a day when we don’t need to even have this discussion because both the pandemic and racism are history.

April 23, 2020

Your employees walk out in protest over coronavirus-related working conditions. Now what?

COVID-19, coronavirus, public health crisis

This week, Amazon workers are protesting what they view as unsafe working conditions. 300 workers from 50 facilities will skip their scheduled shift to protest Amazon’s treatment of warehouse workers.

According to United for Respect, the worker rights group organizing the protest, says that the Amazon employees are hoping to accomplish the following.

When an employee tests positive for coronavirus, the immediate notification of all employees at the facility, and the closure of the facility for two weeks with full pay.
Regular and deep cleaning of all facilities, including after a positive test.
The provision of proper safety equipment to all employees, with training on effective use.
14 days of paid sick leave for anyone with symptoms and 12 weeks of emergency paid family leave for employees to care for loved ones who get sick.
Healthcare for all Amazon employees.
Hazard pay, including time-and-a-half during the crisis and childcare pay and subsidies.

Amazon employees are not unionized, and this isn’t a strike. It’s a short-term walkout of non-unionized employees. Just because these employees aren’t unionized, however, doesn’t mean that their walkout isn’t protected. In fact, it’s very protected. The National Labor Relations Act covers employees who engage in protected concerted activity—meaning that employees have the right to talk between and among themselves about terms and conditions of employment, including walking off the job in protest.

Also read: What a business operating in the time of coronavirus cannot look like

An employer’s first instinct might be to fire the instigators (as Amazon is accused of doing). That would be a big mistake. The NLRA protects employees from retaliation after engaging in protected concerted activity. It’s also just a really bad look, especially now.

Instead, I’d view these protests as a wake-up call.

For starters, we know that one or more labor unions are in employees’ ears helping them organize their walk-outs. A mass walk-out could easily lead to a mass walk-in to the nearest NLRB field office to file an election petition. Don’t offer the union more ammo by firing the organizers.

Secondly, this type of protest offers employers an amazing opportunity to heal some wounds. Amazon likely won’t offer these employees each item on their laundry list of demands, but it should consider all of them and offer those that can be accommodated.

These employees just want to feel safe and know that their employer takes their concerns seriously. At the end of the day this is not that big of an ask, and treating it as such only makes the situation worse.

Also read: The rise of the sick, distressed and oppressed worker

Also read: The role of businesses in addressing a public health crisis

February 13, 2020June 29, 2023

Why ethics is the crux of employee engagement

Throughout 2019, numerous factors forced companies to recognize the importance of ethical leadership.

From Google’s employee protests and walkouts to the onset of GDPR and data privacy troubles of companies like Facebook, ethics has not only dominated the headlines but also become a catalyst of both employee satisfaction and business success.

In this climate, employee alignment is simultaneously more important and difficult than ever to achieve. Employers are demanding more out of their employees, but at the same time, face a range of evolving preferences and digital distractions that make it difficult to capture their attention and trust. Business and HR leaders must adopt an ethos of ethical leadership while thoughtfully implementing engagement strategies or risk losing top employees and the ability to recruit the best as the war for talent rages on.

Ethical practices or a lack thereof will give organizations a competitive advantage or become their demise.

Set the tone at the top

While they may seem insignificant at the time, small actions and decisions by company leadership can add up to big consequences and contribute to the ethical fabric of the workplace. First and foremost, business and HR leaders must prioritize a renewed commitment to transparency — and make it known. Then, they can incorporate tools and strategies to make their values more visible across the entire company, including frontline and deskless workers (i.e., the 80 percent of the workforce that doesn’t sit at a computer).

Also read: 5 ways leaders ruin employee engagement

An authentic presence of leaders is the most important element in building trust with employees. This not only boosts productivity and performance but also prevents behavior that creates a toxic work environment. Leaders who are genuine and open in their communications can also help thwart digital water coolers from spreading misinformation around the workplace, especially with today’s social and collaboration platforms that make it easy for anyone to spread misinformation.

When challenges do arise, it is critical to get ahead of the conversation through proactive, honest communication, sharing the “why” behind decisions so employees hear it straight from the source. Business and HR leaders should be vigilant in sharing these types of company updates to instill trust and reinforce values.

Shockingly, only 16 percent of employees worldwide consider themselves fully engaged. And in the face of an engagement crisis, annual or quarterly surveys don’t cut it to ensure employees’ needs are met. Instead, an approach that focuses on data from employee behavior and pulse polls delivered at optimal times can give leaders a real-time temperature on their organization. These insights can quickly be turned into action to most efficiently reach and engage all employees.

The most effective way to align the workforce must take employee preferences into account. For example, some workers may find nontraditional and more interactive forms of communications to be a welcome change from email or chat, which can create an “always on” culture and lead to burnout.

More vibrant media, such as audio and video methods, makes the quality of interactions far richer, facilitating community-building and allowing distributed workers to feel closer to the business. Whatever their preferences may be, tailoring engagement strategies through a data-based, personalized approach ensures all employees get the information they need to build trust.

Empower employees to speak up

In an era of employee activism, organizations must not only support but actively encourage employees to make themselves heard. Instead of top-down communications, establishing two-way communication channels and mechanisms for feedback gives employees the opportunity to provide perspectives and ask questions in a way that holds leaders accountable.

With this in mind, organizations should acknowledge and ensure that all employee feedback is heard and proper action is being taken. HR managers should use the data and insights from these channels and programs to reevaluate their diversity, equal pay or other policies and make sure they are as impactful as possible. They should also use these tools and insights to implement valuable recognition programs, whether rewards, promotions, bonuses or other programs so employees feel motivated to do their best work.

In 2020, ethical leadership will no longer be an option, but an imperative that directly impacts the bottom line, pushing companies to build ethics into policies and practices, place a renewed focus on culture and seek ways to measure the impact of their efforts.

In a digital workplace, business leaders must adopt tools, technologies and practices to create a more connected, engaged and productive workforce or risk losing trust in an era when it’s needed most.

February 10, 2020

Lessons from Amazon on employee free speech

Earlier this year, Amazon threatened to fire two employees who spoke out against the company’s stance on climate change. In addition, the company also issued a new employee communications policy.

The protest started last April when a group calling itself Amazon Employees for Climate Justice published a letter signed by more than 8,700 employees. It called on Amazon to adopt a company-wide plan to address climate change. As the protests intensified, Amazon ultimately reacted with the new policy and the job threats.

What legal issues do these employee protests, and Amazon’s reaction, raise?

Kate Bischoff and I had the pleasure of guesting on the XpertHR Podcast to share our thoughts. You can listen below, or in your podcast app of choice.