Employer Considerations During Civil Unrest

Quick Hits

• With ongoing protests in many major U.S. cities and resulting action by the federal, state, and local governments, such as imposing curfews, employers may want to revisit and revise their emergency plans, including to ensure compliance with all applicable laws and to ensure employee safety and preservation of safe operations.    
• Maintaining clear communication and providing adequate notice of changes to schedules and flexibility in work arrangements can help businesses navigate disruptions caused by protests and other emergency situations effectively, including dealing with curfews. 

Legal Considerations

Compliance With Curfews and Emergency Orders

Employers may need to consider compliance with emergency orders, including potentially closing operations temporarily or providing other accommodations for employees to ensure their compliance. Curfews often have exceptions for employees traveling to and from work as well as essential workers. Employers may want to consider providing employees with identification cards or employer-provided letters detailing their status.

Wage and Hour Requirements

Even during workplace disruptions caused by civil unrest, the Fair Labor Standards Act (FLSA) and many state and local wage and hour laws require that employers pay nonexempt employees for all hours worked, including overtime hours, and require that employee hours worked are recorded and tracked.

Leave Policies

Employers may be required to provide leave to employees or family members of employees who may be injured or face other unique health issues exacerbated by civil unrest, such as smoke or tear gas inhalation from crowd control measures.

Health and Safety Regulations

Federal and some state regulations require that employers ensure employees are not exposed to “recognized” workplace hazards. Notably, the federal Occupational Safety and Health (OSH) Act allows employees to refuse to work when they believe they will be exposed to a hazard that presents the risk of death or serious physical harm. Civil unrest, including riots or violent demonstrations, may potentially create hazardous environments for employees.

Reductions in Force

Employers forced to permanently shut down businesses or business locations due to long-term civil unrest may be subject to requirements to provide advanced notice of a reduction in force under the federal Worker Adjustment and Retraining Notification (WARN) Act or state “mini-WARN Acts,” such as Cal-WARN. However, civil unrest may be considered an exception to the notice requirements in certain circumstances.

Potential Responses

Emergency Preparedness Plans

Employers may want to consider developing plans for dealing with an immediate emergency and contingency plans on how the business will operate during emergency circumstances, such as natural disasters or quickly growing protests.

Communication Protocols

Communication with employees is critical to maintaining their safety, keeping track of employees, and informing employees of potential hazards and/or workplace closures. As part of emergency preparedness plans, employers may want to include communication protocols, call sheets, and regularly updated emergency contact lists.

Flexible Schedules/Working Arrangements

Employers may want to consider suspending attendance control policies or implementing flexible work schedules to accommodate curfew restrictions while ensuring employees get adequate working hours. Under certain circumstances and where possible, employers may want to permit remote working arrangements to enable employees to avoid hazards while maintaining workplace productivity.

Enhanced Safety Measures

Employers may also want to provide transportation or make other arrangements to ensure safe travel for employees who need to work during curfew hours or near areas facing protests.

Employee Assistance Programs (EAPs)

Employers may further wish to offer EAPs to support employees who may be experiencing stress or anxiety due to curfews and protests. Providing access to counseling and other resources can help employees cope with these challenging situations

Next Steps

Curfews and protests can present serious challenges for employers that require careful planning and consideration of employment law. Such challenges could become increasingly prevalent across the United States amid the current political climate and heightened polarization on social issues. It is critical for employers to prioritize employee safety, maintain clear communication, and ensure compliance with legal requirements.

Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employee Engagement, Hospitality, Leaves of Absence, Reductions in Force, Retail, Wage and Hour, and Workplace Safety and Health blogs as additional information becomes available.

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