Protests amid a pandemic – what’s an employer to do?

A group of employees in California recently went on strike to protest their employer’s refusal to close its business despite the employer’s alleged knowledge of a rising COVID-19 infection rate among employees and its failure to institute proper safety measures. As a result of the strike, the business temporarily shut down. When the owner announced plans to reopen, several employees filed a public nuisance lawsuit claiming that 35 people (including non-employees) had become infected with COVID-19 because of the employer’s prior alleged failures. A state court judge recently ordered the employer to remain closed until the judge could decide whether to require it to implement certain safety protocols. As shown by the steady stream of news reports about workers protesting their employers’ response to the pandemic, and the early trickle of other public nuisance lawsuits filed by employees challenging their employers’ response to the crisis, protests like these should not be dismissed as isolated instances or aberrations.

Nor are such protests limited to the traditional dispute resolution forums for employee grievances, such as “hitting the bricks,” filing administrative charges, or filing lawsuits. For example, in Pennsylvania an employee recently posted Facebook messages claiming that her employer “was extorting thousands of $$$ from his entire female staff” and failing to implement appropriate COVID-19 safety protocols. As a result, the employer sued the employee, claiming that the posts were defamatory and had injured the employer’s business and reputation in the community. According to the lawsuit, the employer’s payroll processor was supposed to increase the hourly rate of pay for all employees for pandemic-related reasons but inadvertently failed to do so for the employee, who then aired her grievances on Facebook. Once again, protests like this should not be dismissed as isolated instances or aberrations.

This cauldron of potential protests is fueled every day by the 24/7 stream of news feeds and the politicization of issues related to the pandemic -- such as shutdown, re-open, masks, or no masks. And if this wasn’t enough for employers to deal with, the recent national reckoning with issues of racism, prompting (of all things) mass demonstrations during a time requiring social distancing, is enough to make any rational employer throw up its hands and cry out, “What’s an employer to do? How do I ensure a safe environment for my employees and customers? How do I protect my business against false accusations related to its response to the pandemic? What do I do with employees who come to work after spending a weekend walking among thousands of unmasked peaceful protesters?”

As you would expect, there is no single answer to any of these questions. But trying to do the right thing is a good start. Implementing and, more importantly, abiding by COVID-19 safety protocols is the right thing to do for your employees and your customers -- and for your desire to avoid litigation. Listening to your employees’ concerns, and taking appropriate remedial action when required, is the right thing to do for your employees -- and for your desire to not have them air those concerns via either traditional or non-traditional grievance resolution forums. Not taking knee-jerk adverse employment actions against employees who voice COVID-19-related concerns, or who participate in demonstrations that may cause their co-workers to be concerned about possible health risks, is the right thing to do for them -- and for your desire to not be sued or charged with violating state or federal law, including the National Labor Relations Act and the Occupational Safety and Health Administration Act.

As for the concerns about health risks posed by employees who attend mass gatherings, certain states have laws that specifically protect employees from adverse actions based on their off-duty political activities. Depending on the circumstances, other laws may be violated by taking adverse employment actions on that basis.

The bottom line is awareness. Be aware of where issues like this can wind up (in court, on social media, etc.). Reflect on the actions you are about to take. Get advice when you need it. And, most important, be safe out there.

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