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02 September 2020
Many employers that reopened recently are now facing a new challenge – employee off-duty conduct. At stake are both workplace and customer safety, as well as the company's reputation. This article highlights different scenarios that employers are likely to face and provides tips on how they can practically navigate and mitigate any potential risks when responding to off-duty conduct issues.(1)
An employer runs an essential business manufacturing company in Naperville, Illinois, a state that is currently in Phase 4 of COVID-19 reopening which bans gatherings of more than 50 people. Iowa allows large gatherings with no restrictions. The employer discovers that over the weekend John from the maintenance group attended a political protest in Iowa with 150 other people. John is set to return to work on Tuesday. Should the employer make John quarantine for two weeks before returning to work?
Would the employer need to pay John if he were exempt in the event that the employer required him to quarantine?
This depends on a few things. If the employee is exempt and working remotely during quarantine, they should be paid. If the employee is exempt and not working remotely during quarantine, they should be paid their full salary for any week in which they perform any work. Assuming that the employee is not entitled to Families First Coronavirus Response Act (FFCRA) paid leave, it would be permissible to withhold pay for any week in which the employee performs no work.
Doesn't the FFCRA require two weeks' pay for quarantine mandated by the City of Chicago under this example? Is it not required in Naperville if the employee is forced to quarantine?
The Naperville example was meant to illustrate the difference between the City of Chicago, which has a mandatory 14-day quarantine for individuals travelling to Chicago from certain states, and Naperville, which has no such mandatory quarantine. Employers should consider whether the employee is entitled to paid leave under the FFCRA or other applicable laws under quarantine.
What about commuting scenarios, where employees work in one state and live in another, travelling back and forth on a daily basis?
This will depend on the specific state and that state's restrictions for quarantine relating to travel from outside states. If, for example, an employee lives in Wisconsin and commutes to Chicago every day, the Chicago order would mandate a 14-day quarantine. The commute might also require varying obligations regarding the wearing of masks while driving or when entering and exiting the vehicle or the number of people in a car.
Are racist statements protected as 'political' speech or activities?
Generally speaking, racist comments are not covered as political speech or activities, and employers can discipline employees for such conduct.
Can employers provide that employees cannot use a competitor's product? Can an employee be fired for a Facebook picture that shows the employee using a competitor's product?
This will depend on the specific facts of the situation, but, in general, employers should not discipline employees for using a competitor's product.
An acquaintance returns to New York from Florida and returns to work immediately (no quarantine) in the grocery business. What liability or responsibility does the employer have to determine the facts or enforce quarantine?
Once brought to the employer's attention, they should investigate to determine whether the employee did travel to Florida. Assuming that the employee did travel to Florida, they would be subject to a 14-day quarantine per the New York guidance.
ABC Corp recently told its employees that the company is going to make a concerted effort to promote diversity in the workplace, including by seeking to promote women and minorities. An employee, Josephine, tells the employer that she is offended by her colleague John's recent Facebook post: "ABC Corp says it will only promote women and minorities, even though white men like me are almost always more qualified. Isn't that discrimination?" Can the employer discipline John for disparaging ABC Corp online? What about for offending Josephine?
What about statements that do not align with a company's mission or stance on particular issues? Can employers discipline if such statements are stated outside of work on public channels?
This will depend on the specific statement at issue. For example, a company could potentially discipline for racist public statements that are against a company's mission or stance on a diversity initiative. For a statement that generally disagrees with a general mission statement, employers will need to consider whether the statement violates any of their current policies and whether the employee's conduct is lawful, in which case it may be protected by certain state laws.
A 'narrow' policy is recommended – what is an example of a policy that is not narrow?
A policy that attempts to regulate off-duty political activity or all lawful off-duty conduct is likely too broad and in violation of multiple states' laws.
Is social media (eg, Facebook or Twitter) a 'lawful product'? Or is use of it 'lawful conduct'?
It is lawful conduct to make social media posts, but keep in mind that some states which prohibit adverse actions for lawful conduct outside of work also have carve-outs for actions that are against business-related interests (eg, North Dakota and Utah).
What if an employee says "All Lives Matter", rather than "Black Lives Matter"?
On its face, this comment is unlikely to violate a typical employer's harassment or anti-discrimination policy.
What about intolerance, racist or discriminatory activity or posts?
Based on some early examples, some companies are acting decisively and swiftly. Employers are generally disciplining employees, including measures up to termination, for making racist or discriminatory comments or social media posts.
For further information on this topic please contact Ron Holland at McDermott Will & Emery's San Francisco office by telephone (+1 628 218 3800) or email (email@example.com). Alternatively, contact Michael J Sheehan or Brian Mead at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email (firstname.lastname@example.org or email@example.com). The McDermott Will & Emery website can be accessed at www.mwe.com.
(1) This article is based on a recent webinar, available here.
Abigail M Kagan, associate, assisted in the preparation of this article.
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