“It depends.” The two words clients hate to hear from legal counsel. But that’s precisely where we are at.
Needless to say, COVID-19 has created a plethora of workplace issues and obstacles. Stories such as the immediate issues around Major League Baseball’s restart, morale concerns at REIrelative to a positive test, Kiltie’s staying open despite five positive tests, and some businesses’ insistence on signed waivers, have eroded both employee trust and consumer confidence. Meanwhile, videos of “mask meltdowns” and other concerning customer interactions are simply unnerving. And, make no mistake, MLB players are themselves extremely anxious.
Beyond COVID-19, tension around issues of racial equality continue to surge. A variety of stories on race, discrimination, and intolerance instantly went viral—from Amy Cooper’s Central Park outburst regarding Christian Cooper to Nick Cannon’sinflammatory podcast statements and the implosion of HolyLandrelative to five-year-old tweets by the founder’s daughter.
Whether discussing COVID-19 or matters of race relations, when it comes to the workplace, one common question is, “When is termination justified?” Hasty reactions to such incidents are nothing new, but they continue to fuel the arguments around freedom of speech (and especially relative to off-duty speech and conduct). Suffice it to say, there is little room for error here. For instance, Emmanuel Cafferty lost his job after he was “wrongly accused of being a white supremacist.” As argued by Christian Cooper, the victim of Amy Cooper’s Central Park outburst, prosecuting Amy Cooper may fail to resolve the legitimate underlying issues.
Business Takeaway: For business owners, it is all about exercising good judgment in the moment, which is almost always really hard and, often times, counterintuitive. Ultimately, you do not want to be perceived as reactionary, nor do you want to be viewed as someone who does not take such matters seriously. Do your employees know what you stand for on these issues, and where the bright lines are? The best approach allows for open communication on difficult topics, bona fide investigations of alleged violations, and appropriate discipline (including up to, but not necessarily, discharge). Employees want to feel heard and know that they will be supported, even when raising difficult topics. On the other hand, that does not mean that you will see it the same as them every time or handle it to their complete satisfaction. Again, do not hesitate to reach out to us at mark@goldsteinsc.com or 414-446-8800 should you encounter any such issues.
