Legal

The Precarious Legalities of Socially Conscious Workplace Policies
By Tim K. Garrett
M

ore and more employers are adopting socially conscious practices that impact the manner in which the employer operates.

My firm’s headquarters are in a Certified LEED “green building.” Generally, companies in such buildings commit to reducing the use of plasticware.

In July 2018, American Airlines and Starbucks announced they will no longer use plastic straws. But, how far can and should these practices go? Could a company in a Certified LEED green building refuse a reimbursement request from an employee who had a business meal at a restaurant that uses only plasticware? Could American Airlines or Starbucks discipline an employee who was caught using a plastic straw at work? Likely, yes.

Title VII of the Civil Rights Act protects employees from discrimination on the basis of race, color, religion, sex and national origin. The American with Disabilities Act protects employees with disabilities; the Age Discrimination in Employment Act prohibits age discrimination.

But there is no employment law protecting an employee’s right to use plastic.

Should an employer’s “social consciousness” go that far? While an employer may legally be permitted to influence employee behavior by disciplinary enforcement of the employers’ socially conscious policies, should it do so? Let’s address socially motivated policies that may be legally permissible as well as questions employers should consider when determining whether such policies are good business practices.

Considerations for Employers
Shared workspaces provider WeWork recently announced that it is imposing a companywide ban on all meat. As part of the ban, the company announced it will no longer reimburse employees for meals that include red meat, poultry and pork (presumably fish and seafood are OK). Failed startup Juicero reportedly had refused to reimburse the cost of any business meals other than meals at vegan restaurants.
Girl holding burger in front of her face
What about the employees who see nothing wrong with eating meat? Or with eating at a non-vegan restaurant? There is no law entitling employees to the right to eat meat (or eat non-vegan), so technically these policies are legal. While one could conjure up some possible “selective enforcement” argument that it is unfair, the practice is not likely unlawful (though in some very few instances it could run afoul of stringent state laws on reimbursing employees who spend their own funds for business purposes).
Do employers make these decisions based on principle or on a market analysis? Are these decisions borne of a desire to cultivate a healthy workplace community by being part of a bigger, socially conscious vision?
But are they advisable? Are employers who are implementing these socially conscious policies actually creating a more positive workplace culture? Or, are they inviting cries of hypocrisy from those who think they do not go far enough or cries of unfairness from those who think they go too far?

“These policies are easily attacked as hypocritical. WeWork, for example, claims its policy of not reimbursing for meals with meat supports sustainability. But what about the use of plasticware? Or what about car allowances only for electric vehicles? Without a policy on the use of plastic or about gas vehicles, is their sustainability stance pure or merely selective?

What of taking this benefit from those who see nothing wrong with meat? Or worse, what about the workplace morale of an employee whose family owns a cattle farm that produces beef? Perhaps that was the only way the family could afford to support themselves or send the children to college, and perhaps the family even supports other meaningful causes with its income from cattle. And, what of our culture’s “no one should tell others what to do” individualism?

The professed sustainability purpose, on the one hand, or the professed “inclusiveness” and camaraderie of the workplace environment on the other hand, can only reach so far. Both the purists and those excluded for not having “right” ideas are marginalized.

How Employers Should Move Forward
So where does this leave us? Certainly, employers should take into consideration employee rights and employment laws in having socially conscious policies that reach so far as to attempt to impact employee behavior. But the harder question is whether employers should make such attempts.

The answer is nuanced, and often the very purposes an employer seeks to serve with these policies have unintended consequences that weaken, rather than strengthen, employee morale or a greater purpose of workplace “culture.”

One other point deserves mention. Do employers make these decisions based on principle or on a market analysis? Are these decisions borne of a desire to cultivate a healthy workplace community by being part of a bigger, socially conscious vision?

Or, are these market-based decisions borne primarily of a desire to use social consciousness as a marketing tool? For example, what if we learned that WeWork, when first deciding on this policy, had conducted market research predicting that such a decision to adopt a vegetarian stance would enhance customer loyalty and market penetration and consequently increase revenue, and that this research was the primary driver of its decision? Would this socially conscious principle lose its power?

A principled decision often sees the bigger vision of work as an attempt to cultivate deeper meaning beyond a cost-benefit economic analysis. Such decisions can have a powerful positive impact on the workplace.

But, the market-based approach, the view that we should be socially conscious because it is good for business and a great marketing strategy, can certainly backfire. It is impossible to promote selflessness by touting its selfish benefits.


Tim K. Garrett is a member at Bass Berry & Sims PLC in Nashville. He counsels employers on issues related to all aspects of labor and employment law. To comment, email editors@workforce.com.