Employers' Response to Racial Unrest
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Employers’ Response
to Racial Unrest
Dawn Siler‐Nixon, Partner – Tampa Office
Wes Redmond, Partner – Birmingham Office
June 11, 2020
Presenters:
Dawn Siler‐Nixon
Partner
Tampa Office
813.261.7834
dsiler‐nixon@fordharrison.com
Wesley Redmond
Partner
Birmingham Office
205.244.5905
wredmond@fordharrison.com
2
Racial Unrest
Requires
Employer
Response
3
1
Employers Response
• University of Iowa strength and conditioning coach suspended.
• Bon Appetit’s Editor-In-Chef resigns.
• Washington state high school wrestling coach fired over a post.
• Not dead yet? I'm doing this for Are (sic) police officers the media
is a race baiting machine and I'm tired of it I'm going to speak out
every time if you don't like that I'm sorry but I love All people..
Wake up America.
4
Employers Respond
• Dabo Sweeney (Clemson Head Football Coach) allegations of
racial statements.
• Employee fired in South Carolina after allegedly inciting riots.
• New Haven, Connecticut, employee terminated after allegedly
denying access.
5
Employers Respond
• Florida Highway Patrol trooper and an employee of Florida
Department of Highway Safety fired after posting.
• NJ Corrections officer fired after mocking George Floyd’s
death.
• FedEx worker terminated after engaging in a reenactment of
Floyd’s death and shouting “blue lives mater.”
6
2
#MeToo
7
The Impact of #MeToo
• #MeToo has empowered workers who have experienced
sexual harassment to raise their hands.
• More reporting of sexual harassment claims in the workplace.
• Higher scrutiny by fact finders.
8
Racial Unrest
• Black Americans dying 3x the rate of White Americans from
COVID-19.
• 13 deaths during the U.S. protests after the death of George
Floyd.
• 235 police shooting of black citizens 2019 .
• 88 in 2020 (As of 6/4/2020).
• 3 deaths, 35 injured and 5 critically injured during
Charlottesville riots.
9
3The Potential Impact of Racial Unrest
• More race discrimination charges, claims and filings.
• Class action allegations.
• Calls for juries to right racial injustice.
10
Employer Response
• Be Prepared
• Respond with Compassion
• Act Appropriately
11
Be
Compassionate
12
4Act Compassionately – Poor Examples
• The resignation of CrossFit CEO, Greg Glassman after
offensive George Floyd tweet and statements; withdrawal of
Reebok sponsorship and 1,000 affiliated gyms intend to end
their relationship.
It's FLOYD-19.
— Greg Glassman (@CrossFitCEO) June
6, 2020
13
Act Compassionately
• A statement from a high-level officer denouncing the recent
acts of racism and prejudice in the workplace.
• Urging that all employees be treated with dignity and respect.
• Reminding employees to report any conduct that violates the
employer’s anti-discrimination/harassment policy or code of
conduct to the company’s Human Resource Department.
14
Act Compassionately – Better Response
15
5Be Prepared
16
Be Prepared: Review/Edit Policies
• Emphasize the company’s prohibition of racial harassment and
discrimination, including racial symbols and “friendly banter”
that could be perceived as having racial undertones.
17
Be Prepared: Review/Edit Policies
“Racial harassment may include threats, physical contact, racial
epithets, remarks, jokes or ridicule, pranks, vandalism, verbal or
graphic or written conduct directed at an individual or individuals
because of race, including displays of symbols such as the Nazi
swastika or confederate flag and nooses that may be deemed
offensive by members of racial minorities.”
18
6Be Prepared: Review/Edit Policies
• Discourage discussions regarding non-workplace issues such
as politics, religion or current events on the basis that they can
lead to unnecessary disagreements that impact productivity
and morale.
• Recognize ability of employees to discuss conditions of
employment such as pay and benefits.
19
Be Prepared: Review/Edit Policies
“The Company does not prevent or discourage employees from
discussing their working conditions, but discussions about politics,
religion, or current events are not productive work time and can
lead to disagreements and reduce morale and efficiency. Such
discussions are discouraged, and any employee who interferes
with another employee’s working ability with such discussions will
be subject to discipline under this policy.”
20
Be Prepared: Review/Edit Policies
• Republish the anti-discrimination/harassment policy and
acknowledgment.
• Violators subject to termination.
• Revisit dress code policy.
• Prohibit clothing with slogans, words or symbols.
• Prohibit retaliation.
• Hotline for anonymous complaints.
• Provide multiple individuals who can take complaints.
7Be Prepared: Mandatory Training
• Conduct in-person (and/or Zoom or other video) training that
focuses on preventing all forms of discrimination or
harassment, with an emphasis on racial discrimination.
• Particularly important if prior training has focused only on
sexual harassment.
• Or if the company has done no training at all.
22
Be Prepared: Mandatory Training
• Conduct diversity training.
• Facilitate greater understand of the issues.
• Allow employees to understand “Why?”
• Management training.
• Training that focuses on all differences in employees not
just race or gender.
• Addresses issues such as implicit bias and cultural
competency.
23
Be Prepared: Appoint Diversity Officer
• Appoint a diversity officer or better a committee.
• This person or committee will address issues of diversity and
make recommendations to management on race and gender
issues.
• Paid position to demonstrate the company’s commitment.
• Alternative for where employees can address complaints in
addition to Human Resources.
24
8Be Prepared: Edit Job Descriptions
• Include cultural competency/diversity requirements in job
descriptions.
• Cultural competency requirements should be apparent from the
beginning of the hiring process.
• Discuss the importance of cultural awareness and competency
with potential employees and whether they are willing to invest
the time to ensure alignment with the company’s diversity and
inclusion policy and culture of dignity and respect for all.
25
Be Prepared: Audit Employment Practices
• Specifically include promotion and compensation decisions.
• Do they adversely impact any particular groups?
• Do you have a “story to tell” that explains apparent differences
in compensation or employment decision?
• CAUTION: An internal audit may be discoverable if not done
by or through counsel.
26
Take
Appropriate
Action for
Conduct
Inside or
Outside Work
9Take Appropriate Action – Can you fire
employees for protesting?
• BLM weekend peaceful protest.
• “All Lives Matter” counter-protesters.
• Violence resulting in one death.
• Monday morning video of employee, wearing a company hat,
holding All Lives Matter sign, shouting and pushing a BLM
protester.
• The BLM protester is in a coma.
Take Appropriate Action – Can Should you fire
him?
• Employment at Will
• Mistaken Identity
• Union Exception
• Is it Protected Conduct Under the Law
Take Appropriate Action – Union Exception
• When racism is protected
• Hey did you bring enough KFC for everyone?
• Go back to Africa, you bunch of f***ing losers!
• Hey anybody smell that? I smell fried chicken and watermelon.
• Protected Concerted Activity
10Take Appropriate Action – Section 7 Rights –
Concerted Activities
• Currently, the use of swear words (when discussing working
terms or conditions) is still protected by NLRA – though this
might change.
• Employee can say the “company is lousy for the pay they give
us” if communicating with at least one other employee – a
Facebook “like” of another employee’s post might be enough to
constitute protected concerted activity.
• Purple Communications – employees can use work email on
non-work time for concerted activity
Take Appropriate Action – Is the Conduct
Protected by State law
• Specific Off-Duty Conduct
• Smoking
• Elections
• Voting
• Victims of crimes
• Medical marijuana
• Others
• General Off-Duty Conduct
• Broad categories
• Require
Take Appropriate Action – Off Duty
Conduct/Lifestyle Discrimination Legislation
• California: CA Labor Code § 96 and 98.6 no employee can be
discharged or otherwise discriminated against for lawful conduct
occurring during nonworking hours away from the employer's
premises. An employee who is discharged, threatened with discharge,
demoted, suspended, or discriminated against in any manner in the
terms and conditions of his or her employment is entitled to
reinstatement and reimbursement for lost wages and benefits.
Colorado: Colo. Rev. Stat. § 24-34-402.5 it's illegal to fire an
employee because that employee engaged in any lawful activity off
the employer's premises during nonworking hours unless the
restriction relates to a bona fide occupational requirement or is
reasonably and rationally related to the employment activities and
responsibilities of a particular employee or a particular group of
employees; or is necessary to avoid, or avoid the appearance of, a
conflict of interest with any of the employee's responsibilities to the
employer.
11Take Appropriate Action – Off Duty
Conduct/Lifestyle Discrimination Legislation
New York: N.Y. Labor Code § 201-d employers can't make hiring or
firing decisions, or otherwise discriminate against an employee or
prospective employee because of legal use of consumable products or
legal recreational activities outside of work hours, off of the employer's
premises, and without use of the employer's equipment or other property.
North Dakota: N.D. Cent. Code § 14-02/4-03 It is illegal for an
employer to fail or refuse to hire a person, to discharge an employee, or
to treat a person or employee adversely or unequally with respect to
application, hiring, training, apprenticeship, tenure, promotion, upgrading,
compensation, layoff, or a term, privilege, or condition of employment,
because of participation in lawful activity off the employer's premises
during nonworking hours which is not in direct conflict with the essential
business-related interests of the employer.
Take Appropriate Action – Factors to Consider
Before Taking Action
• Do you have a social media policy or a policy regarding off duty
conduct?
• No video or audio recording
• Confidential information/trade secrets
• Personal use of company logo
• Spokesperson of the company
• Is the employee being critical of working conditions that could
be protected under the National Labor Relations Act?
35
Take Appropriate Action – Factors to Consider
Before Taking Action (Cont.)
• Is the employee’s speech overly offensive or would it impede
the company’s ability to comply with its anti-
discrimination/harassment policy or prevailing law?
• Is the employee engaged in or advocating violence?
36
12Take Appropriate Action – Factors to Consider
Before Taking Action (Cont.)
• Does the conduct or speech cause disruption in the workplace?
• Police officer joking about stealing cocaine from evidence room.
• Publicist tweeting “Going to Africa. Hope I don’t get AIDS! Just
kidding. I’m white.”
• “Japan is really advanced. They don’t go to the beach. The beach
comes to them”
• Police officer “lets start a riot” post.
• Is the employee representing the company when making the
statement (i.e., wearing a company uniform, stating they are
employees of the company, etc.)?
37
Take Appropriate Action – Factors to Consider
Before Taking Action (Cont.)
• What position does the employee hold?
• How have you treated other employees who engaged in similar
inappropriate conduct?
• Are work-only social media pages truly on for work related?
38
Employer Prohibited Conduct
• Do not ask employees for their passwords.
• Do not ask employee to access their own social media
accounts.
• Do not request that a friend access an employee’s account.
• Do not pretend to be a fake person in order to access an
employee’s account.
• Do not ask employees to change their settings to public.
39
13Employer Response
• Be Prepared
• Respond with Compassion
• Act Appropriately
40
QUESTIONS?
THANK YOU!
41
Presenters
Dawn Siler‐Nixon Wesley Redmond
Partner Partner
Tampa Office Birmingham Office
813.261.7834 205.244.5905
dsiler‐nixon@fordharrison.com wredmond@fordharrison.com
42
14You can also read
