On July 20, 2020, people across the U.S. are planning to take part in the Strike for Black Lives, where workers will walk off the job, and protests will take place in support of better wages, improved health care, paid sick leave, and an end to systemic racism in workplaces and communities.
So if absence requests come in from employees, how can HR respond?
In general, employers typically have an attendance policy that spells out the expectations of showing up on time and being present at work. If there is poor attendance and/or chronic tardiness in violation of that company policy, employers will enact some sort of disciplinary action, which may include termination.
However, if the absence is due to attending a protest or gathering related to pay and labor rights, employees have the right to engage in “concerted activity for mutual aid and protection” under the National Labor Relations Act (NLRA). This includes activity undertaken together by two or more employees, or by one on behalf of others, when seeking to improve their terms and conditions of employment.
Due to the nature of these event(s), if an employee in your organization is going to be absent during a planned protest, and you are considering disciplinary action due to a violation of your attendance policy, review the questions below before proceeding:
- Do all employees understand the company’s policies and procedures concerning attendance and tardiness? If yes, do you have a documented acknowledgment or sign-off?
- Is this considered an excused absence (i.e., PTO, sick, personal) or an unexcused absence (i.e., did not receive adequate notice, no call/no show)?
- Have all previous occurrences been documented accurately?
- Are there any concerns with this employee that may fall under the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or any other federal, state, or local laws that should be considered?
Ultimately, each employer needs to make a decision based on the policies in its workplace. It is critical to ensure consistency with your practices. The bottom line is that any adverse action taken against an employee in these situations should relate to a policy violation (i.e., not following standard, communicated attendance policy expectations) and not because he or she participated in a protest.
If an absence would warrant termination under your policy standards, it is advisable to seek legal counsel to ensure the defensibility of that decision. If termination is warranted and defensible, employers should also be aware that potential public backlash could occur based on the sensitivity of the situation.
If you want to talk through all the considerations, MRA is here to help! Our 24/7 HR Hotline Advisors can answer questions and provide sound advice. Reach out to us at 866-HR-HOTLINE (866.474.6854), or email [email protected].
