Political rallies have employers wondering what their rights are when employees take part in these events on company time.
Following the “Day Without Immigrants” protests in February 2017, several employers fired workers who skipped work to participate. Here are a few things you should keep in mind If you’re thinking about disciplining any of your employees who miss work for events like these.
Use of State- or City-Mandated Protected Sick Leave
We’ve been getting a lot of questions about employees calling in sick on the day of marches and protests and requesting to use leave. In most cases, employees who have protected sick leave available should be allowed to use that time without repercussion, even if you don't believe they are sick.
Almost all states and cities that have passed sick leave laws are very specific about when a note can be requested. For instance, if you’re in California, a note should never be requested; in New York City, you can ask for a note only after more than three consecutive days of absence; in Oregon, you can ask for a doctor’s note only after more than three consecutive days of absence, but you’ll have to pay the costs associated with getting the note. There may be exceptions to these rules if you have a reasonable suspicion of abuse, but reasonable suspicion is a high bar, and there are very few scenarios in which wading into this legal swamp will be worth your time or the potential liability.
Remember that retaliation for the use of sick leave is strictly prohibited in all states and cities that offer it. This means you can’t punish an employee in any way for using their sick leave, and you should even be careful of actions that could appear to be retaliatory because they closely follow an employee’s use of leave. For instance, moving an employee from the day shift to the night shift a week after they used protected sick leave could look like punishment. If you need to make a change like this, or take disciplinary actions against an employee who has recently used sick leave, make sure your reasons for doing so are well-documented.
Now may be a good time to remind employees of the permissible reasons to use their sick time – which do not include leave for social, personal, or political reasons – and that use for other purposes is a violation of company policy.
You may also want to remind employees that once they run out of their protected sick leave, further absences will not be protected, and they will be subject to your usual attendance and tardiness policies as well as your discipline procedures, even if they’re down with the flu or break their leg.
Options for Discipline
If you have compelling evidence that employees are being fraudulent in their use of sick leave, you may consider options that would lead to discipline. Compelling evidence would include having them tell you after the fact that they were marching rather than sick. However, an employee who wakes up sick could still muster the strength to march. Whether this is acceptable use is not an argument you want to be having with them, their attorney, or the state labor department.
Sick leave laws are still quite new. As a result, there are many unanswered questions, such as, “Can we expect a sick employee to stay home all day rather than go to the mall, a march, or the zoo with their kids?” Although an employer’s position that employees using protected sick leave should act sick is quite reasonable, it’s unclear what position a court would take. If you decide to seek discipline for use of protected sick leave, we recommend proceeding with extreme caution and contacting an attorney or the state labor department for further guidance.
Employees who do not have sick leave available for use and fail to come to work on a protest day should be treated as you would treat any other employee who didn’t come to work on any other day of the year. Race, color, religion, national origin, and immigration status are all protected by federal law, and a number of states protect political affiliations and activities as well. Be sure that punishments for missing work for such events do not bring about harsher punishment than for playing hooky to spend the day with friends.
If an Employee Claims They are Protesting Working Conditions or Wages
Even if employees do not have any protected sick time available for use, they may claim other legal protections for their absence.
Employees have certain protected rights under Section 7 of the National Labor Relations Act (NLRA). These protections include the right to organize with other employees to improve the terms and conditions of their employment and not suffer adverse employment action as a result. The level of risk in disciplining employees for an absence will be directly proportional to how closely the absence is related to the terms and conditions of their employment. The closer the relationship between the reason for their absence and their working conditions, the more risk you face in disciplining them.
Examples of activities that are clearly protected by the NLRA include two or three employees complaining about their wages or a manager on their personal Facebook pages, or forming a picket line in front of the building to protest their long hours.
Missing work to protest a low national minimum wage (e.g., attending a "Fight for $15" march) could qualify as protected activity, but the relationship between the activity and the employees’ own terms and conditions of employment is murkier.
On the other hand, missing work to attend a general Women's March or to protest the current presidential administration would not be protected activity, as it has nothing to do with the employees’ specific wages or working conditions. As mentioned earlier, even if employees don’t have any legal protection for their absence, you should ensure that you are not applying a harsher punishment for absences related to political activities or inclusion in a protected class.
If you think the details of your specific situation may indicate a relationship between the absence and employees’ terms and conditions of employment, you should consult an attorney before taking action.
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