What Can You Do as an Employer if Your Employee is Arrested During a Protest?
Protests are occurring across the nation, and as many as 10,000 people have been arrested. Some of those arrested may even be your employees and you may be wondering how to handle the situation. Employees and employers have rights when it comes to protesting and how the actions of individuals affect the business overall. Employer Support Services brings you some information on what employees and employers can and can’t do when protesting is a factor.
Absent Employee with No Phone Call
If an employee attends a protest and is detained or arrested during the process, they may not be able to notify you of their intended absence. Essentially, this will be a no-call, no show situation.
In this instance, it is vital to stick with your discipline policy that you have implemented and uphold for all your employees. You cannot show leniency to one employee and not others – doing so can result in legal problems. Showing leniency during one situation and not another can appear to others that you are supporting one side of an issue and acting favorably to those supporting a certain stance.
Make sure you document everything and uphold your discipline policy consistently at all times.
Arrest vs. Conviction and the EEOC
Being arrested for protesting does not necessarily mean they are guilty of any crime. Arrests themselves are not proof of criminal conduct according to the U.S. Equal Employment Opportunity Commission (EEOC). Essentially, your employee is innocent until proven guilty. As an employer, you’ll want look at the conduct underlying the cause of the arrest. You can take action if the employee’s conduct underlying the arrest is job related. You’ll need to examine whether or not the charge placed against the employee will affect their job responsibilities or duties.
If your employee was arrested while protesting peacefully and arrested with no conviction, inflammatory action against the employee could result in public relations, morale, and legal problems. Exclusion of employees based solely on arrest records and not on conduct can result in accusations of violation of Title VII. You must individually analyze each situation based on conduct.
For example, if your employee is a driver for your company and he or she was arrested for drinking and driving, then you may have cause to terminate the employment since the conduct affects their ability to perform their job duties safely. Indirect correlations between an arrest and job duties may not be a valid reason to terminate the employee.
Check with your state and local laws to understand what limitations you have for employment decisions. Some states prohibit discrimination based on particular criminal records.
Employee rights are different within each state and depend on whether the employee is in the private or public sector. To ensure you are operating legally when it comes to your employees and their actions, be sure to review your state’s laws. While public employees are generally protected by the First Amendment, there are limitations.
Private employees or at-will employees may not have all of the same protections. At-will employees can essentially be fired without cause. While they have the right to speak and protest, they don’t necessarily have a right to guaranteed employment.
For their own protection, employees should not attend a protest during company hours unless they seek permission and request time off. They should also avoid wearing any company-related clothing or identification pieces and make sure any statements are not associated with the company.
For more information or for help exiting or hiring an employee who has been arrested for certain conduct, contact Employer Support Services today.