Last Updated on July 7, 2020

Employer and employee
expectations in protests

All around the country we see protests continuing over racial injustice, so what are employers to do if workers are arrested for protesting? Another common question is, what if employees don’t show up for work?

It is a good idea for employers to apply their attendance policies consistently, understand the differences between an arrest and a conviction, and review state and local laws on political expression and off-duty conduct. Just remember to be fair and consistent.

Also, be aware that some states, such as California, have laws that protect employees when they engage in political activities and lawful off-duty conduct, however if an employee participates  in activities that go against the employer’s core values, such as engaging in hate speech, that could possibly be grounds for consequences at work.

So what if an employee doesn’t show up
for work because of a protest?

If an employee finds themselves unable to attend work, or arrested during a protest and unable to notify their manager before the start of their shift, this could violate the company’s attendance policy.

Again, an employer should administer their attendance policies fairly and consistently. If there is an exception in the policy for situations where the employee cannot reach the employer, the absence likely could be excused. However, some employers have a no-fault attendance policy which means automatic discipline so consequently an absence may count against an employee who is unable to get word to the employer.

Keep in mind the difference in an arrest and a conviction.

Employers should understand the difference between an arrest and a conviction and keep in mind that even after an arrest, an individual is still presumed innocent of the crime until convicted.

Employers should be familiar with the The Equal Employment Opportunity Commission’s (EEOC’s) enforcement guidance information, which states that an employer may make an employment decision based on the conduct underlying the arrest, if the conduct makes the employee unfit for his or her position. Notably, it is the conduct—not the arrest—that is relevant.

It is still important to understand state laws about the topic as well. In some states, employers can’t ask about arrests that have been cleared in the employee’s favor. However, employees and job applicants may be required to disclose criminal convictions.

Generally speaking, public employees are protected by
the First Amendment, whereas employees
who work for private employers are not.

Some suggestions to give employees who wish to engage
in peaceful political protests include:

• Protesting during nonwork hours or seeking permission to protest during work hours. 
• Seeking time off in accordance with employer policies.
• Reviewing employee handbooks and other potentially relevant policies.
• Not wearing employer uniforms or insignia.
• Ensuring that the views they express—including on social media—are not attributed to or associated with their employer.

It is important that we respect the opinions of each other however, we also must respect the expectations and policies of our employer as well. If you need help reviewing or revising your employee handbooks, MyHRConcierge can help. Call us at 1-855-538-6947 or email ccooley@myhrconcierge.com