Q. An employee asked me for the day off on May 1 to participate in the nationally organized “Day Without Immigrants.” How should I handle such requests, and what about other issues related to political expression?
A.While the “Day Without Immigrants” has come and gone, it’s impossible to say when the next request related to labor or political expression might come from an employee. Having a clear policy regarding such matters, and working to keep an environment of fairness at work, is increasingly important.
Set your policy, communicate it clearly to all employees, then apply it evenly, advises Patricia Nemeth, of Nemeth Burwell PC, a Detroit law firm specializing in labor and employment law. Usually such situations can be covered in the vacation/absence policy.
One way to address the issue is to include in your policy a statement such as: “Employees who want time off to attend a rally, demonstration or other event involving free speech should use vacation time or time off without pay, must request it in advance and must receive prior approval. No explanation of the purpose of the request is required or advised.”
By remaining unaware of the reason for the request, the employer is shielded from suspicion that the decision to approve or deny a request was based on political or other bias. The employer should document the reason for any denial, such as typical scheduling for that day/timeslot or special circumstances such as an inventory counting day, so that any charge of unfairness can be shown to be without foundation.
Nemeth further advises:
• Political viewpoints are not a protected classification, and
private employers have the right to allow or disallow the posting of
political commentary in the workplace.
• Rules on political issues in the workplace must be handled consistently
among all employees. Employers who allow posting of political literature
during an election season should allow postings regarding immigration
reform as well. If you fail to do so, you could inadvertently create
a policy that could lawfully lead to claims of discrimination because
it has a different impact on certain ethnic groups within the workforce.
• Attendance at events, such as an immigration rally, that are
related to an employee’s terms or conditions of employment may
be protected by the National Labor Relations Act, even if your employees
do not belong to a union.
• Employers need to treat absences—both requests for time
off and unexcused absences—uniformly, regardless of the reason
for the absence.
• Employers should never get involved in a discussion for the reason
of an unexcused absence. The situation needs to be handled impartially,
based on company policy and practices.
• Citing one’s views regarding a worker’s attendance
at a rally or some other politically charged issue can inflame the situation,
even when the employer and employee share viewpoints.
Do you have a retailing question? Ask the Michigan Retailers Association
by mail: 603 South Washington Avenue, Lansing, MI 48933;
by fax: 517.372.1303;
by e-mail: mra@retailers.com.
